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2006 DIGILAW 335 (UTT)

RATAN SINGH v. STATE OF ULTARANCHAL

2006-06-30

J.C.S.RAWAT

body2006
( 1 ) THIS revision has been directed against the judgment and order dated 4-9-1988 passed by the learned Sessions judge, Almora. The trial Court had convicted the revisionist u/ss. 7/16 of the Prevention of Food Adulteration Act, 1954 and sentenced the revisionist to undergo rigorous imprisonment of six months with a fine of rs. 1000/- and in case of failure to deposit the amount of fine, to undergo rigorous imprisonment of one month. ( 2 ) BRIEF facts for the disposal of this revision are that the Food Inspector B. N. Dongal had taken the sample of mustard oil from the shop of the revisionist on 10-5-1988 at about 12. 00 noon in the Village kunwanli, District Almora. The said oil was purchased by the Food Inspector after making the necessary formalities as provided under the Act and the rule of the Prevention of Food Adulteration Act. Thereafter, he sent the sample to the Public Analyst for analysis. The public analyst vide its report dated 17-6-1985 found that there was argemone positive in the sample and the said article was found adulterated in view of S. 2 (ia) (a) (c ). Thereafter, the sanction was obtained from the C. M. O. and after obtaining the sanction on 27-9-1988, the complaint was filed by the Food Inspector against the revisionist. ( 3 ) AFTER submission of the complaint, the food Inspector B. N. Dongal was examined u/s. 244, Cr. P. C. and he proved all the allegations made in the complaint and thereafter, the accused-revisionist was charged u/ss. 7/16 of the Prevention of Food Adulteration Act. ( 4 ) THE accused-revisionist denied the charges and claimed the trial. ( 5 ) THEREAFTER, the Food Inspector B. N. Dongal was cross-examined u/s. 246, Cr. P. C. The prosecution also examined P. S. Bora P. W. 2 who was a clerk of the C. M. O. office and he had proved the sending of the report to the Public Analyst and proved the note and also produced the postal receipt before the trial Court and he also provided that the report of the Public Analyst was sent to the revisionist u/s. 13 (2) of the Prevention of Food Adulteration Act. ( 6 ) THE accused-revisionist was examined u/s. 313, Cr. ( 6 ) THE accused-revisionist was examined u/s. 313, Cr. P. C. and he stated that both the witnesses are departmental witnesses and he had taken a plea in the statement that the said container of oil was not belonged to him. He did not sell the mustard oil and some known person, Naval Tiwari had kept this container in his shop. He further stated that the said container of oil belonged to Indra Singh. ( 7 ) THE accused-revisionist examined naval Kishore D. W. 1 who had stated in his statement that he purchased the container of oil from Ranikhet market and he kept it in the shop of the revisionist. ( 8 ) AFTER appraisal of the evidence on record, both the Courts below convicted and sentenced the revisionist as indicated above. ( 9 ) I have heard learned counsel for the parties and perused the record. ( 10 ) LEARNED counsel for the revisionist contended that the trial has been conducted by the learned Chief Judicial Magistrate, almora who was not having the jurisdiction to try the Prevention of Food Adulteration act cases. It was further pointed out S. 16 (1)of the Prevention of Food Adulteration Act provides for the constitution of the special courts for the summary trial. He further pointed out that the learned Chief Judicial magistrate was not empowered to function under S. 16 of the Prevention of Food adulteration Act. Learned Sessions Judge had held in his judgment that no notification had been issued in this respect by the Government constituting the Court at Almora. As such, his contention is absolutely wrong. It is also settled position of law if a special court has been created and if any notification has been issued for constitution of the said Court, the cases shall stand transfer to the special Court. Till the special Courts had not been constituted, the trial may be held in the regular Courts as provided under the criminal Procedure Code. The ordinary courts under the provision of Cr. P. C. had the jurisdiction to try all the criminal cases. It is evident from the judgment of the learned sessions Judge that there was no notification with regard to the constitution of the said Courts. It has not been brought to the record by the revisionist to show any special court has been constituted on the date when the trial was conducted. It is evident from the judgment of the learned sessions Judge that there was no notification with regard to the constitution of the said Courts. It has not been brought to the record by the revisionist to show any special court has been constituted on the date when the trial was conducted. Section 20 of the Prevention of Food Adulteration Act clearly provides as under : -20. Cognizance and trial of offences.- ( (1)No prosecution for an offence under this Act, not being an offence under S. 14 or S. 14-A)shall be instituted except by, or with the written consent of, (the Central Government or the State Government) or a person authorised in this behalf by general or special order, by the Central Government or the state Government. PROVIDED THAT a prosecution for an offence under this Act may be instituted by a purchaser (or recognized consumer association)referred to in S. 12 (if he or it produces) in Court a copy of the report of the public analyst along with the complaint. ( (2) No Court inferior to that of Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under subsection (1-AA) of S. 16 shall be cognizable and non-bailable.) ( 11 ) IN absence of such notification, every Judicial magistrate posted in the District or the Chief Judicial Magistrate of the district had got the power to try the case of the Prevention of Food Adulteration Act. ( 12 ) LEARNED counsel for the revisionist contended that S. 20 of Prevention of Food adulteration Act provides that no prosecution for an offence under that Act shall be instituted except with the written consent of the person authorised in this behalf by the State Govt. and the Central Govt. Learned counsel for the revisionist further pointed out that the sanction had not been proved before this Court, as such, the prosecution is liable to be vitiated on that ground alone. Perusal of the sanction reveals that the sanction has been accorded by the c. M. O. , Almora on 27-9-1988. Perusal of the sanction reveals that the said sanction had been got typed in Hindi and thereafter the c. M. O. had signed it with his pen. Perusal of the sanction reveals that the sanction has been accorded by the c. M. O. , Almora on 27-9-1988. Perusal of the sanction reveals that the said sanction had been got typed in Hindi and thereafter the c. M. O. had signed it with his pen. He had carried out one correction in the said sanction order. This fact clearly reveals that said sanction order was typed on the dictation of the C. M. O. and thereafter, he carried out the correction in the said order. It was further pointed out that the Food Inspector B. N. Dongal had not proved sanction. The Food inspector had clearly stated in his evidence that the said sanction contains the signature of the C. M. O. and he had verified the signature and the document as has been exhibited in presence of the counsel of the parties. If the document would hot have been proved the counsel or the accused would have raised the objection and he would not have allowed to be accepted before the trial court. If the document had been exhibited by the Court, it is said that the said document has been proved by the Court. Apart this, S. 67 of the Indian Evidence Act also provides the manner under which hand writing and signature alleged to have been signed by him is proved. In this case, the signature has been proved and I have already pointed out earlier that the sanctioning authority has applied his mind while granting the sanction. I do not find any force in the contention raised by the learned counsel for the revisionist. ( 13 ) LEARNED counsel for the revisionist further contended that the accused-revisionist was 32 years of age while his statement was recorded u/s. 313, Cr. P. C. Now he is around 46 years of age. Perusal of the s. 20-AA reveals that this section is only attracted while the revisionist would have been below 18 years of age. The offence false u/s. 2 (i-'a) (a) (c ). As such, the sentence which has been provided by the learned trial Court is perfectly well within his jurisdiction. The learned counsel for the revisionist contended that in several cases the High Court had reduced the sentences and even the High court had awarded the sentence of already undergone. He further contended that the sentence may be reduced. As such, the sentence which has been provided by the learned trial Court is perfectly well within his jurisdiction. The learned counsel for the revisionist contended that in several cases the High Court had reduced the sentences and even the High court had awarded the sentence of already undergone. He further contended that the sentence may be reduced. While hearing the revision, the High Court is working as a revisional Court under the provision of the cr. P. C. The Court had no power to reduce the sentence which is provided under the act. The Hon'ble Apex Court in State Govt. of NCT of Delhi v. Amar Singh (2006) 1 SCC (Cri) 752 : (AIR 2005 SC 3818) and mahendrakumar G. Patel v. State of Gujarat (2006) 1 SCC (Cri) 283 : (2003 Cri LJ 3531)have held that mandatory provision of S. 16 of the Act cannot be overlooked and no lesser sentence than the sentence provided by the statute can be provided. If the minimum sentence has been awarded, no further reduction in the said sentence is required. In the former case, the High Court reduced the sentence of imprisonment of one year to 21 days and the Apex Court while quashing the order had held that the High Court had no discretion to reduce the same which has been prescribed under the statute. ( 14 ) IN view of the foregoing discussions, i am of the view that the sentence cannot be reduced in this matter. ( 15 ) THE revision devoids of merit and is liable to be dismissed and the same is accordingly dismissed. ( 16 ) AH applications pending in this case are stand disposed of in terms of the judgment. Revision dismissed. --- *** ---