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Madhya Pradesh High Court · body

2010 DIGILAW 399 (MP)

MANOJ v. STATE OF MP

2010-04-06

N.K.MODY

body2010
Judgment N.K.Mody, J. ( 1. ) This order shall also govern the disposal of Cr.R. No.436/ 07, as in both the cases parties are one and the same and in both the cases petitioner has been convicted for an offence punishable under the provisions of Food Adulteration Act. ( 2. ) Cr.R.531/08 is filed against the judgment dated 30/04/08 passed by XII ASJ, Indore in Cr. A. No.208/08, which is arising out of judgment dated 05/03/08 passed by JMFC, Indore in Criminal Case No.4955/08, whereby the petitioner was convicted for an offence punishable under Section 16(1)(A)(i) of Prevention of Food Adulteration Act with imprisonment of six months and fine of Rs.1,000/- and under Section 16(l)(A)(ii) of Prevention of Food Adulteration Act with imprisonment of three month and fine of Rs.1,500/- was confirmed. ( 3. ) Cr.R. No.436/07 is filed against the judgment dated 19/03/07 passed by VII Additional Sessions Judge, Indore in Cr.A. No.81/07 whereby the judgment dated 24/01/07 passed by Special JMFC, Indore in Criminal Case No.4741/04 whereby petitioner was convicted under Section 16(l)(A)(i) and 16(l)(A)(ii) of Food Adulteration Act for a period of three month and fine of Rs.500/-, was confirmed. ( 4. ) In Cr.R. No.531/08 petitioner was prosecuted by the respondent under the provision of Prevention of Food Adulteration Act, 1954, (which shall be referred hereinafter as an Act), alleging that on 28/04/04 when Food Inspector took inspection of shop (Sagar Foods) of petitioner and purchased Synthetic Sweetened Carbonated Bevrage which was for sale. It was alleged that the sample was taken and after the report of analyst it was found that the same was misbranded. It was prayed that the petitioner be convicted. After the trial it was found that the Synthetic Sweetened Carbonated Bevrage, which was in possession of the petitioner was misbranded. Hence the petitioner was convicted and was sentenced as stated above and in appeal the conviction was maintained. ( 5. ) While, in Cr.R. No.436/07 petitioner was prosecuted by the respondent under the provision of Prevention of Food Adulteration Act, 1954, alleging that on 28/04/ 04 when Food Inspector took inspection of shop (Sagar Foods) of petitioner and purchased Qurocol Relax Brand Orange Synthetic Sweetened Carbonated Beverages which was for sale. It was alleged that the sample was taken and after the report of analyst it was found that the same was misbranded. It was prayed that the petitioner be convicted. It was alleged that the sample was taken and after the report of analyst it was found that the same was misbranded. It was prayed that the petitioner be convicted. After the trial it was found that the Qurocol Relax Brand Orange Synthetic Sweetened Carbonated Beverage, which was in possession of the petitioner was misbranded. Hence the petitioner was convicted and was sentenced as stated above and in appeal the conviction was maintained. ( 6. ) Learned counsel for the petitioner in both the petitions argued at length and submits that petitioner has been convicted illegally while petitioner has not committed any offence. It is submitted that mandatory provisions of the Act were not complied with, hence the prosecution itself was bad in law. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in these revisions. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that from the report of public analyst Ex.P/15 in Cr.R. No.531/08 and Ex.P/10 in Cr.R. No.436/07 and the statement of Food Inspector who was the sole witness, it is evident that there was no case of adulteration, but it was a case of misbrand as per Rule 32 (e), e(x) of the Rules. It is submitted that since the Rule itself has been declared ultra-vires, therefore, the impugned judgment passed by the learned Courts below deserves to be quashed. ( 7. ) In alternative learned counsel submits that in Cr.R. No.531/08 petitioner was in jail w.e.f. 30/04/08 and the jail sentence was suspended by this Court Vide order dated 14/05/08, while with Cr.R. No.436/07 petitioner was in jail w.e.f 19/03/07 and the jail sentence was suspended by this Court vide order dated 28/03/07. It is submitted that looking to the nature of offence and the fact that petitioner has already served part of jail sentence, the same may be reduced to the period already undergone. ( 8. ) Learned counsel for the State submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offnece. It is submitted that looking to the nature of offence and the fact that petitioner has already served part of jail sentence, the same may be reduced to the period already undergone. ( 8. ) Learned counsel for the State submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offnece. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. ( 9. ) From perusal of the record it is evident that the charge against the petitioner was that the article which was seized from the petitioner was mis-branded and the petitioner was not possessing the license, thus, petitioner has committed an offence which is punishable under Section 7(i)(iii)/16(i)(A)(i)(ii) of the Act. ( 10. ) In exercise of powers conferred by the provisions of Food Adulteration Act, 1954, Central Government has framed the Rules, which are known as Food Adulteration Rules, 1955 (which shall be referred hereinafter as "Rules"). Rule 42 of the Rules deals with form of labels. Rule 50 of the Rules deals with the conditions of license, while Rule 32(e) of the Rules deals with package of food to carry a label. Rule 32(e) of the Rules reads as under: A distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words "Batch No" or Batch or "Lot No" or "Lot" or any distinguishing prefis; Provided that in case of canned food, the batch number may be given at the bottom, or on the lid of the container, but the words "Batch No." given at the bottom or on the lid, shall appear on the body of the container. ( 11. ) In the matter of Dwarka Nath Vs. M. CD., 1972 FAC 1(SC) Rule 32(e) of the Rules has been declared as ultra-vires . Following the said decision this Court in the matter of Hariram Vs. ( 11. ) In the matter of Dwarka Nath Vs. M. CD., 1972 FAC 1(SC) Rule 32(e) of the Rules has been declared as ultra-vires . Following the said decision this Court in the matter of Hariram Vs. State of M.P., 2003(3) MPHT 168 in a case where petitioners were prosecuted under Section 7/16 of the Act for violation of Rule 32(e) of the Rules held that the violation of Rule 32(e) of the Rules which has been declared to be ultra-vires, its violation can not be said to be an offence and the petitioners were discharged. In the circumstances conviction of the petitioner for misbranding on account of violation of Rule 32(e) of the Rules cannot be allowed to sustain. ( 12. ) So far as the fact that the petitioner was not possessing the license at the relevant time is concerned, the date of alleged offence is 28/04/04 in both the cases and in both the cases samples were taken at about 11:00 am. In Cr.R. No.531/08 Ex.P/8 is the license which was valid for the period w.e.f. 01/04/03 to 31/03/04. In Cr.R. No.436/07 the license is Ex.P/5 and Ex.P/6 which were valid for the period w.e.f. 01/04/03 to 31/03/04 and 01/04/04 to 31/03/05 respectively. These documents have been filed by the prosecution itself, which goes to show that on the relevant date petitioner was possessing the license. In the license which has been issued by Municipal Corporation, Indore it is mentioned that the license is being given under the provisions of Food Adulteration Act. ( 13. ) Rule-50 of the Rules lays down that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food except under a license. ( 14. ) Since the petitioner was possessing the license on the date of alleged offence, therefore, the conviction of the petitioner on that account also can not be allowed to sustained. In view of the aforesaid position of facts and law, this Court is of the view that the conviction of the petitioner under Section 16(l)(A)(i) and (ii) for violation of Section 7 (i)(iii) is illegal, incorrect and deserves to be set aside. ( 15. ) In view of this, both the petitions are allowed and the impugned judgments passed by the learned Courts below are set aside. Consequently petitioner stands acquitted. ( 16. ( 15. ) In view of this, both the petitions are allowed and the impugned judgments passed by the learned Courts below are set aside. Consequently petitioner stands acquitted. ( 16. ) With the aforesaid observations, petition stands disposed of. A copy of this order be placed in the record of Cr.R. No.436/07. Petition disposed of.