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Andhra High Court · body

2007 DIGILAW 1126 (AP)

Goriga Yadaiah v. State of A. P.

2007-11-16

BILAL NAZKI

body2007
COMMON JUDGMENT :-Both these revisions are being disposed of by this common judgment. 2. Petitioner in Crl. R.C. No.1036 of 2002 was convicted of the offence under Section 16(1)(a)(i) and 16(1)(a)(ii) of the Prevention of the Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for six months and fine of Rs.1,000/- in default to suffer simple imprisonment for one month. 3. Petitioner in Crl. RC No.1542 of 2002 was convicted of the offence under Section 16(1)(a)(i) of the Prevention of the Food Adulteration Act, 1954 (for short "the Act") and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,000/- in default to suffer simple imprisonment for three months. 4. Only one ground agitated before this Court is that there has been violation of Section 11 (4) of the Act, therefore the conviction cannot sustain. 11 is also contended by the learned Counsel for the petitioners that if the conviction is not set aside, then they should be given benefit of Section 433 of the Code of Criminal Procedure (for short "the Code"). This Court is confining its decision only to these aspects of the matter. 5. The case of the petitioners is that under Section 11 (1) of the Act when a sample is taken by the Food Inspector, he has to divide it into three parts and one part has to be sent for analysis to the Public Analyst under intimation to Local (Health) Authority and other two parts must be sent to the Local (Health) Authority for the purposes of sub-section (2) of Section 11 and sub-sections (2A) and (2E) of Section 13. 6. Section 11(4) of the Act says that an article of food seized under sub-section (4) of Section 10, unless destroyed under sub-section (4A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the Public Analyst. 7. 7. Section 13(1) of the Act lays down that the Public Analyst shall deliver a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis and subsection (2) of Section 13 of the Act lays down that when a report is received from the Public Analyst that the food article was adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken, send a copy of the report of the result of the analysis to such person. The Local (Health) Authority shall also inform such person that if he desires, he may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory. 8. Sub-section (2A) of Section 13 lays down that when an application is made by the accused before the Court under subsection (2), the Court shall ask the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition and subsection (2B) of Section 13 lays down that when the sample is received by the Court, after ascertaining that the mark and seal on the sample were intact and had not be tampered with, the Court shall dispatch the sample to the Director of the Central Food Laboratory for analysis. 9. Now the case of the petitioners is that two samples had to be deposited before the Court within seven days after receipt of the report of Public Analyst. But if this interpretation on Section 11(4) is accepted, then Section 13 would become redundant. 9. Now the case of the petitioners is that two samples had to be deposited before the Court within seven days after receipt of the report of Public Analyst. But if this interpretation on Section 11(4) is accepted, then Section 13 would become redundant. Therefore both Sections 11 and 13 have to be interpreted in a way that the construction is harmonious and I have already noted down Section 13 and if both the sections are read together, there is no doubt that the two samples can be retained by the Local (Health) Authority till a Magistrate asks it to deposit them in the Court and that can only be done if an accused makes an application for second analysis after receipt of report of Public Analyst. Subsections 10(4) and 10(4A) operate in different context and therefore there is a reference to it in Section 11 of the Act. Section 10 of the Act basically deals with the powers of Food Inspectors. Sub-section (4) of Section 10 lays down that if any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep it in the safe custody of the vendor in order that it may be dealt with as provided under the Act and he shall, in either case, take a sample of such article and submit the same for analysis to a Public Analyst. Sub-section (4A) of Section 10 lays down that where any article of food seized under sub-section (4) is of a perishable nature and the Local (Heath) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed. Therefore sub-section (4) and (4A) of Section 10 operate in different contexts. After taking the sample if the Food Inspector is of the view that the article from which the sample has been taken is adulterated, he may either destroy the same if it is perishable or he may handover it to the vendor on a bond or he may also send it to the Court as laid down under Section 13 of the Act. For taking samples there is a different procedure where one sample has to be sent for analysis to the Public Analyst and two samples have to be retained by the Local (Health) Authority and in case report of the Public Analyst is that it is adulterated and if the accused, after getting copy of the report, wants to contest it, he may apply to the Court for sending second sample to the Central Food Laboratory for analysis and at that stage the Court can summon other two samples from the Local (Health) Authority. For these reasons, the arguments advanced by the learned Counsel for the petitioners cannot be accepted. 10. Various judgments have been cited by the learned Counsel for the parties. In Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat, 1995 Crl. LJ 2662, the Supreme Court, while dealing with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, held that Section 50 was mandatory. This Court is not going into the question as to whether Section 11(4) of the Act is mandatory or not because the rule has been complied with. 11. Another judgment of this Court reported in Food Inspector. Vizianagaram. Municipality v. Kurmapu Surya Prakasa Roo, 2000 (2) ALD (Crl.) 781 = 2001 (1) ALT (Crl.) 120, goes in favour of the prosecution. 12. Now corning to the second question that the petitioners/accused should be given the benefit of Section 433 of the Code, it appears that the Supreme Court found the conviction valid in a case of Food Adulteration, but while upholding the conviction in N. Sukumaran Nair v. Food Inspector, Mavekhara, (1997) 9 SCC 101 , it found that the offence took place in the year' 1984 and almost a decade had passed when the matter was coming before the Supreme Court, therefore it directed the accused to pay a fine in commutation of sentence of six months' imprisonment and on deposit of such fine, the Government was asked to formalize the matter by commutation after passing appropriate order under clause (d) of Section 433 of the Code. This judgment was followed in Santhosh Kumar v. Municipal Corporation, 2001 (1) ALD (Crl.) 203 (SC) = 2000 (4) Crimes 32 (SC). Section 433 of the Code gives powers to the Government to commute the sentence. This judgment was followed in Santhosh Kumar v. Municipal Corporation, 2001 (1) ALD (Crl.) 203 (SC) = 2000 (4) Crimes 32 (SC). Section 433 of the Code gives powers to the Government to commute the sentence. Death sentence can be commuted for any other punishment provided by the Indian Penal Code, a sentence of imprisonment for life can be commuted for imprisonment for a term not exceeding fourteen years, a sentence of rigorous imprisonment can be commuted for a simple imprisonment for any term to which that person might have been sentenced, or for fine and a sentence of simple imprisonment can be commuted for fine. This power is essentially a power of Government and cannot be exercised by the Courts. But the Courts, other than the Supreme Court, cannot give a direction to the Government that on payment of fine the sentence imposed by the Court should be commuted, but the Supreme Court can give such directions under Article 142 of the Constitution of India whereby the Supreme Court has been conferred with a pow~r to pass such decree or make such order as it found necessary for doing complete justice in any matter pending before it. This is settled law that orders passed by the Supreme Court under Article 142 of the Constitution of India are not precedents. 13. Therefore, the criminal revisions fail and are accordingly dismissed. The petitioners/accused shall immediately surrender before the trial Court to serve the remaining period of sentence.