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Madhya Pradesh High Court · body

2008 DIGILAW 905 (MP)

Tulsiram v. State of M. P.

2008-07-24

S.R.WAGHMARE

body2008
ORDER 1. By this revision filed under section 397 read with section 401 of the CrPC, the petitioner has challenged order dated 25.11.2004 passed by the 12th Additional Sessions Judge, Indore in Criminal Appeal No.485/03 convicting the accused under section 16(1)(a) read with 7(1) of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act" for brevity) and sentencing the accused for six months rigorous imprisonment with fine of Rs.1,000/-, in default of payment of fine, an additional rigorous imprisonment for one month. 2. Brief facts as alleged by the prosecution are that on the date of incident i.e. 12.8.1991 at about 9: 15 a.m., the Food Inspector of Municipal Corporation, Indore Shri M.L. Ansari (PW1) inspected the shop named' Sitaram Dhudh Dahi Bhandar at Janta Quarter, Nanda Nagar, Indore doubting that the owner of the shop did not possess valid and legal licence under the Prevention of Food Adulteration Act, took a sample of the curd after filling in form No.6 and giving notice to the shop owner, the Food Inspector purchased 600 gms. of curd prepared from the cow milk by payment of Rs.7.20 and obtaining proper receipt, the sample was then divided into three equal parts and filled into three dry and clean bottles. After adding 15-16 drops of formalin into each, the bottles were duly sealed and thereafter, a panchanama was prepared in front of the witnesses and the signatures of the accused and witnesses were obtained and a copy of form No.7 was sent (along with) to the public analyst at Bhopal and another copy of form No.7 along with seal impression were deposited with the Local Public Health Authority, Indore and after obtaining the report of the public analyst and finding that curd was adulterated, the prosecution was launched. After obtaining sanction from the Deputy Director, Food and Medicine Administration, the complaint was lodged before the competent Court. 3. The accused Tulsiram abjured his guilt and also denied that he did not possess a proper licence, the trial Court, however, on consideration came to a conclusion that the accused Tulsiram was guilty as charged and sentenced him as herein above stated. The appellate Court also upheld the conviction as well as the sentence passed by the trial Court and hence, the present revision. 4. The appellate Court also upheld the conviction as well as the sentence passed by the trial Court and hence, the present revision. 4. The main contention of the counsel for the applicant was that the Food Inspector was not authorized to file the complaint or undertake investigation, since according to the notification of 19.10.1983, the power had not been conferred on the Food Inspector. Counsel stated that the entire prosecution was without the authority of law and prayed for setting aside of both the impugned orders. Besides, counsel for the applicant also raised the usual objections that the curd was not stirred into homogeneous mixture, there was variance between the State Public Analyst's report and the report by the Central Laboratory and this also went on a large extent to prove that the prosecution was not conducted in accordance with law. Counsel has also submitted that both the Courts below had erred in placing reliance on the sole testimony of the Food Inspector and it was not supported by any independent witness and the judgment of conviction ought to be set aside on this ground alone. Contending that the sample was not obtained in front of witnesses and the sample was not representative sample in accordance with law, the counsel prayed for setting aside the conviction. 5. Counsel for the respondent-State, on the other hand, has placed his reliance on Gopal Ramniranjan v. State of M.P. [ 1991 MPLJ 960 ], whereby this Court had held that the Notification No.7770-XVII dated 31st December, 1959 had neither been amended nor modified and in view of this fact, the Food Inspector was competent to file complaint even without sanction of the Assistant Public Prosecutor, Food and Medicine or without prior approval of the local authority, and therefore, the complaint had been legally and validly filed. 6. To bolster his submissions, he also relied on Kaliram v. State of M.P. [1994(1)MPJR SN 4. ], whereby the same principle had been upheld by the Court by stating that where there is general authorization of Food Inspector to institute or give consent for prosecution then under the circumstances complaint filed by the Food Inspector is competent, stating that the evidence of the Food Inspector was corroborated by the public analyst report EX.P-7 as well as the Central Laboratory Report. Counsel also stated, the Food Inspector was duly authorized vide EX.P-1 and P-2 and granted sanction vide EX.P-8 for prosecution under the Prevention of Food Adulteration Act, had been duly filed vide EX.P-8 by the prosecution. And since there was no doubt having found the sample to be adulterated, minimum sentence had been imposed by the trial Court which was upheld by the appellate Court and the revision did not require any interference. 7. On considering the said submissions, the record and the impugned judgment, I find that the judgment of the appellate Court is quite detailed and based on cogent and valid reasons. The first objection raised by the counsel regarding competency of the Food Inspector to file complaint has been more than adequately answered by relying on several authorities by the appellate Court and detailed analysis of the empowerment of the Food Inspector under the law has been duly considered. Referring to para No.6 of the impugned judgment, I find that the appellate Court has placed proper reliance on the judgment of this Court in the matter of Shivprasad v. State of M.P. [ 2004(1) MPJR 190 ], and Ramprasad v. State of M.P. [2003(1) ANJ 117], whereby the competency of the Food Inspector has been considered and the same controversy was raised and duly answered and the Food Inspector has been found to be competent to file the said complaint. Both the notifications were under consideration before the apex Court as well as in the present dispute and hence, I do not find any ground for interference on this finding by the appellate Court as well as the trial Court that M.J. Ansari, the Food Inspector PW1 was quite competent to file complaint. Due sanction has been obtained from the department and is on record as Ex.P-8. 8. The other ground regarding stirring of the curd into homogeneous mixture was also set as naught by the deposition of the Food Inspector, who has stated that the curd was stirred by the measure itself before putting them into three sample bottles and hence, the objection is demolished. 8. The other ground regarding stirring of the curd into homogeneous mixture was also set as naught by the deposition of the Food Inspector, who has stated that the curd was stirred by the measure itself before putting them into three sample bottles and hence, the objection is demolished. The matter of variance between the State Public Analyst Report Ex.P-7 and that of the Central Laboratory report has been properly answered by the counsel for the State, who has also urged that the sample was sent to the Central Laboratory at the instance of the accused himself and the Central Laboratory report would prevail as has been held by this Court time and again. 9. The judgment of the appellate Court is based on sound and cogent reasons. This being a criminal revision, the constraint of jurisdiction are only limited to questions of law or error apparent on face of record that may arise. Evidence cannot be re-appreciated in exercise of revisional jurisdiction nor the findings of fact assailable. I do not find any infirmity in the judgment of conviction by both the Courts below. 10. However, considering the sentence, the counsel for the applicant has prayed that the applicant is now at advanced age of 63 years and more than 17 years have elapsed since the incident and the counsel for the petitioner has vehemently argued and prayed that the petitioner was facing a protracted trial right from 12.8.1991 at the time when he was barely 46 years of age; new more than 18 years have elapsed and hence the petitioner would be entitled to reduction in the sentence to meet the ends of justice, the sentence could be reduced to one already undergone. 11. 11. However, considering the prayer, since the provisions of section 16 is quite strict in its applicability and it mandates that minimum sentence to be imposed for offence under section 16(1)(a) of the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years with fine which shall not be less than Rs.1,000/-, even then when the trial has been protracted for number of years and the actual sentence undergone by the accused is barely 37 days then sending back the accused to jail would not be in keeping the principles of natural justice since the petitioner has already faced agony and suffered mental harassment of long period of 17 years. Hence the jail sentence could be reduced to the period already undergone. 12. I find support in my conclusion when under similar circumstances for offence under section 7 and 16(1)(a) of the PFA Act, the learned Single Judge of Punjab and Haryana High Court in the matter of Narinder Kumar v. State of Haryana [2008(1) FAC 264] held that 24 years of protracted trial in itself entitled the petitioner to vary and reduce the sentence and the sentence of the petitioner was reduced to the period of already undergone. The sentence of fine, however, was enhanced to Rs.10,000/- to be deposited within three months. Learned Single Judge has relied on a judgment of the Supreme Court in the matter of Braham Dass v. State of Himachal Pradesh [1998(2) FAC 13= AIR 1988 SC 1789 ]. 13. Considering the ratio of this case, however, I feel that it will be profitable to rely on a more recent case of the apex Court in the matter of Satya Narayan Agarwal v. State of Assam [2007 CriLJ 3733], where for an offence under section 7 read with section 16(1) of the PFC Act, the apex Court while considering the sentence of six months imprisonment with fine of Rs.1,000/- imposed by the trial Court and the same was enhanced by the High Court to fine of Rs.5,000/- and the High Court had permitted the accused to move the State Government under section 433 of the CrPC for commutation of the sentence. The apex Court while considering the validity had although dismissed the appeal filed by the accused, however, granted liberty to the accused to challenge the order passed by the State Government rejecting the application for commutation made under section 433 of the CrPC. The apex Court has relied on N. Sukumaran Nair v. Food Inspector, Mavelikara [ (1997)9 SCC 101 ] and Santosh Kumar v. Municipal Corporation, and another [ (2000)9 SCC 151 ]. 14. Upholding the power of the State Government to commute the sentence, the apex Court had clearly directed that it would be within the domain of the State Government to consider such commutation, since the imposition of the minimum sentence would be unduly harsh under the circumstances, considering that in the present case, the accused has only undergone actual sentence of 15 days approximately and is facing protracted trial for 17 years. 15. Thus, under the circumstances in the light of Santosh Kumar (supra), I uphold the conviction of the accused for offence under section 7 and 16(1)(a) of the PFA Act, however, direct the accused to deposit in the trial Court a sum of Rs.l0,000/- as fine in commutation of the sentence of six months imprisonment within a period of six weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of the fine, the State Government may formalize the matter by passing appropriate order under clause (d) of section 433 of the Code of Criminal Procedure. In the meanwhile the applicant will remain on bail. Thus, the petition stands partly allowed.