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2010 DIGILAW 866 (RAJ)

Damodar Lal v. State of Rajasthan

2010-04-20

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—By filing instant criminal revision petition the accused petitioner has challenged the Judgment of conviction and sentence dated 29.8.2000 passed by learned Judge, Special Court (Communal Riots) Jaipur (for short `the learned appellate Court') in criminal appeal No. 17/1998 whereby he confirmed the judgment of conviction and sentence dated 27.9.1994 passed by learned Chief Judicial Magistrate, Jaipur City, Jaipur (for short `the learned trial Court') in criminal case No. 313/1984, whereby he convicted and sentenced the accused petitioner for the offence under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months S.I. and a fine of Rs. 2,000/-. In default of payment of fine the accused petitioner was directed to undergo three months' S.I. 2. Background facts in a nutshell are that on 28.10.1983 Shri Mahesh Chand Bhatacharya, Food Inspector took sample of Imarti Sweets for analysis which was said to have been sent for analysis through Public Analyst, Rajasthan, Jaipur, who submitted its report on 30.11.1983 which disclosed that the Rapseed Oil used for preparation of the sweets was adulterated. On 6.3.1984 the complaint was filed in the court and sanction is said to have been awarded vide Ex. P.7 by the Chief Medical & Health Officer. Thereafter, the complaint was filed on 21.11.1984. 3. The accused petitioner was read over the charge in substance for the aforesaid offence. The accused petitioner did not plead guilty and claimed to be tried. 4. The prosecution in support of its case produced only PW.1 Mahesh Bhattacharya and thereafter, the evidence was closed. 5. Thereafter, the statement of the accused petitioner under Section 313 Cr.P.C. was recorded. In defence the accused petitioner produced DW1 Babulal. 6. The learned trial Court vide its judgment dated 27.9.1994 convicted and sentenced the accused petitioner for the aforesaid offence. 7. Aggrieved with the impugned judgment of conviction and sentence dated 27.9.1994 passed by learned trial Court, the accused petitioner preferred an appeal before the learned appellate Court. The learned appellate also confirmed the judgment of conviction and sentence dated 27.9.1994 passed by the learned trial court. Hence, this criminal revision petition before this Court. 8. 7. Aggrieved with the impugned judgment of conviction and sentence dated 27.9.1994 passed by learned trial Court, the accused petitioner preferred an appeal before the learned appellate Court. The learned appellate also confirmed the judgment of conviction and sentence dated 27.9.1994 passed by the learned trial court. Hence, this criminal revision petition before this Court. 8. In this criminal revision petition it has been submitted by the learned counsel for the accused petitioner that the learned trial Court while passing the impugned judgment has failed to take into consideration that there was gross violation of Section 3(ii) of the Prevention of Food Adulteration Act. No notice under section 13(ii) was sent by the local authority or by the Chief Medical & Health Officer or by the Food Inspector. The report of the Public Analyst was supplied to the petitioner on 17.12.1984 and on 22.12.1984 the application for analysis from the Central Food Inspector was submitted. The learned trial Court has not granted benefit of doubt to the petitioner, though it has to be given to the petitioner. The Imartee was not found to be adulterated against the petitioner for use of Rappsit Oil or Sesame Oil. The compliance of provisions of Section 13(7) of the P.F. Act has been grossly violated. The independent witnesses though available, were not obtained by the so-called Food Inspector nor any witness was examined by the prosecution to prove the contents of Ex. P.3 which was inspection memo. The learned courts below have also failed to appreciate the statement of DW1 Babu Lal. Neither the firm was made party nor the petitioner was prosecuted as person in charge of the firm. Lastly, he submits that the Food Inspector was not competent to take samples. Thus, the impugned judgment of conviction and sentence passed by learned trial Court be quashed and set aside and if not then the accused petitioner be given the benefit of remission as per law. 9. Per contra, learned Public Prosecutor submits that the learned trial Court has rightly passed the impugned judgment of conviction and sentence and no interference is required to be made in the impugned judgment of conviction and sentence. 10. I have heard learned counsel for both the parties and perused the impugned Judgment. 11. The Court's attention was drawn on the Judgment of N. Sukumaran Nair vs. Food Inspector, Mavelikara, reported in 1995 Cr.LJ 3651. 10. I have heard learned counsel for both the parties and perused the impugned Judgment. 11. The Court's attention was drawn on the Judgment of N. Sukumaran Nair vs. Food Inspector, Mavelikara, reported in 1995 Cr.LJ 3651. In para 2 and 3 of this Judgment, Hon'ble Apex Court has held as under: "2. It has vehemently been urged by Mr. V.A. Bobde, learned senior counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial Court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW.1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18, but at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in cross-examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We, are, thus, of the view the High Court was justified in upsetting the order of acquittal on the aforesaid ground. 3. The offence took place in the year 1984, the appellant has been awarded six months' simple imprisonment and has also been ordered to pay a fine of Rs. 1,000/-. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone to deposit in the trial Court a sum of Rs. 1,000/-. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone to deposit in the trial Court a sum of Rs. 6,000/- (six) as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clauses (d) of Section 433 of the Code of Criminal Procedure." 12. Further, Court's attention was drawn on the head not of another Judgment of Satya Narayan Agarwal vs. State of Assam, reported in 2007 Cr.L.R. (SC) 552, which is quoted as under: "Prevention of Food Adulteration Act, 1954-Sec. 7 r/w 16(1) - Criminal Procedure Code, 1973-Sec. 433- Conviction-Commutation of sentence- Conviction with fine of Rs. 1,000/- On appeal High Court enhanced fine to Rs. 5,000/- Application u/S. 433 Cr.P.C. rejected by State Government- Appeal to Supreme Court - Conviction upheld, however, appellant may challenge order passed u/S. 433 by State Government." 13. Again Court's attention was drawn on Judgment of Santosh Kumar vs. Municipal Corporation and Anr., (2000) 9 SCC 151 , similar view was expressed in the following terms: "We, therefore, direct the appellant to deposit in the trial Court a sum of Rs.10,000/- as fine in commutation of the sentence of 6 months' imprisonment within a period of 6 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 Cl.(d) of Sec.433 of the Code of Cri-minal Procedure. In the meanwhile, the appellant will remain on bail." 14. It is to be noted that in both the cases there was no direction to formalize the sentence. On the other hand it was clearly noted that the State Government may formalize the sentence. 15. In view of above, the present criminal revision petition stands disposed of. I direct the accused petitioner to deposit a sum of Rs. It is to be noted that in both the cases there was no direction to formalize the sentence. On the other hand it was clearly noted that the State Government may formalize the sentence. 15. In view of above, the present criminal revision petition stands disposed of. I direct the accused petitioner to deposit a sum of Rs. 10,000/- as fine in the Court of learned Chief Judicial Magistrate, Jaipur City, Jaipur, in commutation of the sentence of six months' Simple Imprisonment within a period of three months from today and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under Section 433 of the Code of Criminal Procedure, till then he will remain on same bail bonds.