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2018 DIGILAW 2551 (ALL)

Kripa Shanker v. State of U. P.

2018-12-17

SURESH KUMAR GUPTA

body2018
JUDGMENT : Suresh Kumar Gupta, J. 1. This criminal revision has been preferred against the judgment and order dated 11.01.1991 passed by Sri D.R. Singh, Sessions Judge, Orai, District Jalaun in Criminal Appeal No. 39 of 1990, Kripa Shankar Versus State of U.P. confirming the judgment and order dated 22.10.1989 passed by Sri S.C. Savita, Judicial Magistrate, Jalaun, Orai in criminal case no. 992 of 1987 State Versus Kripa Shankar convicting and sentencing him to undergo six months rigorous imprisonment and a fine of Rs. 1000/-, in default thereof one month more rigorous imprisonment under Section 7/16 of Prevention of Food Adulteration Act (to be referred in short as Act). 2. Brief facts of this case are as follows-: Food Inspector, Nadigaon Sri Radhey Mohan Hingwaliya found at Kamsera-Konch road village Titra, revisionist, Kripa Shankar, going towards Konch market at about 10.00 am on 12.02.1987 with a tin containing about 25 kilogram of Khoya on the back of his bicycle for the purpose of sell. Suspecting adulteration in Khoya, Food Inspector discloses his identity and served notice in From No. 6 (Ext. Ka-I) disclosing the purpose of taking sample in the presence of witness Tulasi Ram, he purchased 750 grams Khoya out of the said stock on making payment of Rs. 15/-as a price and obtained receipt (Ext. Ka-II). He take the sample of Khoya to Public Analyst for analysis. The sample was divided in three equal part and kept in three different dry and clean containers. Twenty drops of Farmalin of 40 per cent strength were added in each container. Before sealing the above sample, duly signed label by the appellant in cut slip, issued from the office of Chief Medical Officer, were wrapped with the help of strong thread. 3. From No. VII prepared on the spot and such form was also wrapped on each container. One said parcel as per receipt (Ext. Ka3) in memorandum (Ext. Ka -5) in Form No. VII, was sent through registered post as per receipt (Ex. Ka-4). Separately to Public Analyst whereas two other phials of sample were deposited to the office of Chief Medical Officer, the next day. 4. Report dated 13.03.1987 (Ext. Ka-6) was submitted by Public Analyst to the effect that sample of Khoya contains only 16.8 per cent milk fat which was less than maximum prescribed standard of 20 per cent. Ka-4). Separately to Public Analyst whereas two other phials of sample were deposited to the office of Chief Medical Officer, the next day. 4. Report dated 13.03.1987 (Ext. Ka-6) was submitted by Public Analyst to the effect that sample of Khoya contains only 16.8 per cent milk fat which was less than maximum prescribed standard of 20 per cent. Besides it there was conclusive presence of cane sugar therein. The Khoya was adulterated. The Food Inspector prepared his report dated 30.04.1987 (Ext. Ka-7) and submitted all the papers to Chief Medical Officer, Orai for the purpose of granting sanction. After perusing the relevant papers sanction (Ext. Ka-8) for prosecuting the appellant was accorded by Chief Medical Officer on 23.08.1987. 5. The Food Inspector filed the complaint (Ext. Ka-9) on 24.08.1987 in the Court of Judicial Magistrate, Orai. Information in respect of it was given by him to Chief Medical Officer, who issued the notice (Ext. Ka-10) under Section 13(2) of the Act on 26.08.1987 alongwith copy of report of public analyst through registered post vide postal receipt (Ext. Ka-11). Entry in respect of dispatching the notice was made in Dispatch Register. 6. The learned Magistrate summon the revisionist and charged him under Section 7 read with Section 16 of P.F.A. Act to which he pleaded not guilty and claimed to be tried. Prosecution agency examined the Food Inspector as PW-1 and Sri Jahid Ali, Food Clerk as PW-2. Accused denied all the allegations brought on him and examined his defence witness, Tulasi Ram (DW-1). In his examination, he told that he was private servant of Food Inspector in the year 1997 and sample was not collected in his presence. His signature was obtained by Inspector at subsequent stage. Learned Magistrate hailed the accused guilty under Section 7/16 of P.F.A. Act and sentenced him to rigorous imprisonment for six months and fine of Rs. 1000/-, against this order, the appeal was preferred by revisionist against the conviction and sentencing order of the Magistrate in appeal conviction and sentencing order of learned Magistrate was confirmed by Learned Sessions Judge, Orai. 7. I have heard Sri Ram Surat Patel, learned counsel for the revisionist and Sri Sanjay Kumar Singh, learned A.G. A. for the State and perused the record. 8. 7. I have heard Sri Ram Surat Patel, learned counsel for the revisionist and Sri Sanjay Kumar Singh, learned A.G. A. for the State and perused the record. 8. Learned counsel for the revisionist contended that delay in launching the prosecution is seriously prejudiced to him because alleged occurrence has taken place on 12.02.1987 and complaint dated 24.08.1987 lodged in the Lower Court after more than six months. 9. It is true that no time limit is prescribed in the P.F.A. Act and rules framed there under within which the prosecution should be launched but it has been emphasized in several decision that it must be instituted without any delay because delay caused the sample to deteriorate, and thereby, a valuable right of the accused to get the sample analyzed by Central Food Laboratory, Kolkata is adversely affected but situation in this case is totally different because after launching the prosecution in competent Court, revisionist-vendor did not avail his right to examine the alleged adulteration sample from Central Food Laboratory as provided in Section 13(2) of the Prevention of Food Adulteration Act, so in this aforesaid case, no prejudice on this account could possibly caused to the revisionist. 10. It is also contended by the learned counsel that according to the statement of Food Inspector, at the time of taking sample, only Tulasi Ram (DW-1), revisionist and Food Inspector were present there. Subsequently, in his statement, the Food Inspector has improved by saying that passers by were requested to sign but refused, hence Section 10(7) of P.F.A. Act hit the prosecution and conviction of the revisionist. 11. In Section 10(7) of P.F.A. Act, it is clearly provided that at the time of taking sample, it is duty of Food Inspector to call one or more person who present at the time when said action has taken place and take his or their signature. 12. In this case it is clearly finding of Trial Court as well as Appellate Court that Tulasi Ram (DW-1), was public witness. He was never related to Food Inspector. Tulasi Ram-DW-1, was not in the personal service of Food Inspector at the time of taking sample. DW-1 has made false statement about having made signature on the blank receipt and blank Form No. 6. He was never related to Food Inspector. Tulasi Ram-DW-1, was not in the personal service of Food Inspector at the time of taking sample. DW-1 has made false statement about having made signature on the blank receipt and blank Form No. 6. Witness DW-1 has won over by the accused but it is evidently clear that at the time of taking sample, he is present on the spot. This fact is fully established by the prosecution. So in this case, compliance of Section 10(7) of the P.F.A. Act is fully established. 13.It is perusal of the record that PW-1 has proved that a copy of Public Analyst Report No. 3918 (Ext. Ka-6) dated 18.03.1987 was sent to the accused after filing the complaint on 24.08.1987 in the Court through registered post on 26.08.1987. Therefore, it is evidently clear that Public Analyst Report was sent to the accused-appellant on 26.08.1987. According to the provision of Section 13(2) of the P.F.A. Act, the accused ought to have moved an application within ten days of the date of receipt of Public Analyst Report for getting his sample analyzed by the Central Food Laboratory but he never moved the application as per provision of Section 13(2). Revisionist never avail the benefit of Section 13(2), so it is evidently clear that report of Public Analyst gets finality and no prejudiced caused to the revisionist so he could not get benefit for his own fault. 14. Learned counsel for the appellant submitted that sample analyzed by the Public Analyst shows that the milk fat contained is 16.8 per cent, which is 3.2 per cent less than minimum prescribed fat, so his case is not covered under Section 2 of the P.F.A. Act. It is also submitted that percentage of fat below prescribed standard is due to some natural reason. So this case is not covered under P.F.A. Act, so he is liable to be acquitted in this matter. 15. Though an attempt was made to argue that the sample was not adulterated but it is difficult to accept the said submission. It is also submitted that percentage of fat below prescribed standard is due to some natural reason. So this case is not covered under P.F.A. Act, so he is liable to be acquitted in this matter. 15. Though an attempt was made to argue that the sample was not adulterated but it is difficult to accept the said submission. Definition of adulteration has contained in Section 2(i.a) reads as under:- (i.a) “adulterated” an article of food shall be deemed to be adulterated.” (m) “if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.” Clause (M) postulates a situation whereof article falls below the prescribed standard, even if it is not injurious to health nevertheless the quality/purity of article were falls below the prescribed standard, it would be treated as adulterated. 16. Learned counsel for the revisionist failed to show that prescribed standard of Khoya falling below due to natural cause which is beyond the control of human agency. 17. There is no other significant argument made by the learned counsel for the revisionist. The other point which could have been raised by him had already been answered by the learned Magistrate Court as well as Appellate Court. 18. Lastly, it is contended by learned counsel for the revisionist that the revisionist has suffered the pain and agony of trial for more than 30 years because the alleged occurrence is of date 12.02.1987. He further contended that in pursuant of the judgment and order of the appellate Court dated 11.01.1991, the revisionist was taken into custody to serve out the sentence and was released on bail by order of the Hon'ble High Court dated 23.01.1991 and bail was furnished by revisionist on 28.01.1991 so he is in custody for few days. Fine imposed on the revisionist has already been deposited. It was prayed that the sentence of imprisonment of the revisionist be commuted to fine. Fine imposed on the revisionist has already been deposited. It was prayed that the sentence of imprisonment of the revisionist be commuted to fine. Reliance was placed on the following decisions of the Apex Court:- Haripada Das Versus State of West Bengal, 1998 (2) FAC 187 : (1998 AIR SCW 4040) the Apex Court has held:- “Considering the facts and circumstances of the case and also considering that the revisionist was released on bail by this Court long back and because of the protracted litigation up to this Court he has also suffered a lot of mental agony and financial hardship and also considering the fact that he had already undergone imprisonment for more than three weeks, we feel that in the facts of the case the ends of justice will be met if the sentence of imprisonment is reduced to the period already undergone. We, however, direct the besides the fine imposed by the Courts below, the appellant will have to pay a fine of Rs. 5,000/-within four weeks from today, in default he will have to undergo imprisonment for three months. The appeals are disposed of accordingly. The bail bonds stand discharged”. (ii) N Sukumaran Nair V. Food Inspector Navelikara, 1996 (2) PFA Cases 21: (1995 Cri LJ 3651) wherein it was held (at page 3652 of Cri LJ): “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. 1000/-. 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 by. We, therefore, direct the appellant to deposit in the trial the appellant to deposit in the trial Court a sum of Rs. 6000/-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 formalise the matter by passing appropriate Code of Criminal Procedure.” Santosh Kumar V. Municipal Corporation, 2000 (2) FAC 76 : (2000 Cri LJ 2777) wherein it was held:- “4. On deposit of such fine, the State Government may formalise the matter by passing appropriate Code of Criminal Procedure.” Santosh Kumar V. Municipal Corporation, 2000 (2) FAC 76 : (2000 Cri LJ 2777) wherein it was held:- “4. This case seems to be almost on a parallel with the facts enumerated in the decision cited above. We are also persuaded to extend the same benefit which the appellant in the aforesaid decision was granted by this Court, as this would be an appropriate case for commutation of sentence under Clause (d) of Section 433 of the Code of Criminal Procedure. 5. We therefore, direct the appellant to deposit in the trial Court a sum of Rupees 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 clause (d) of Section 433 of the Code of Criminal Procedure. In the meanwhile the appellant will remain on bail.” 19. Now the moot question arises in this case whether this Court can commute the sentence below the minimum prescribed period under the Prevention of Food Adulteration Act. In this regard, the position of law is being considered in several ruling of Hon'ble Supreme Court which is as follows:- Delhi Administration (Now NCT of Delhi) Versus Manohar Lal (2002) 7 Supreme Court Cases 222:- “3. Aggrieved, the respondent pursued the matter on revision before the High Court in Crl. Revision Petition No.188 of 2001. The conviction of the respondent was not challenged by the respondent before the High Court. So far as the sentence is concerned, adverting to the certificate of the Director, Central Food Laboratory, wherein it was found stated that the colouring matter was not injurious to health and placing reliance upon the decision of this Court reported in 2000 Crl. L. J. 2777, wherein a direction was issued by this Court to the Government under Section 433 Cr.P.C., benefit of Section 433 (d) Cr.P.C. was claimed for the respondent. L. J. 2777, wherein a direction was issued by this Court to the Government under Section 433 Cr.P.C., benefit of Section 433 (d) Cr.P.C. was claimed for the respondent. Taking into account the same and the concession said to have been made by the counsel for the State, the learned Judgein the High Court felt persuaded to extend the benefit of commutation of sentence, as envisaged under Section 433 (d) Cr.P.C. and directed the respondent to deposit in the trial court Rs.20,000/-as fine, in commutation of the sentence of imprisonment and inform the Government of such deposit, for formalising the matter by passing appropriate orders under Section 433 (d) Cr.P.C. It was also ordered that on deposit of the fine amount, the sentence of imprisonment imposed shall stand suspended. Aggrieved against this order of the High Court dated 24.4.2001, this appeal has been filed by the Delhi Administration. 5. We have carefully considered the submissions of the learned counsel appearing on either side. Apparently, the learned Judge in the High Court was merely swayed by considerations of judicial comity and propriety and failed to see that merely because this Court has issued directions in some other cases, to deal with the fact situation in those other cases, in the purported exercise of its undoubted inherent and plenary powers to do complete justice, keeping aside even technicalities, the High Court, exercising statutory powers under the Criminal Laws of the land, could not afford to assume to itself the powers or jurisdiction to do the same or similar things. The High Court and all other courts in the country were no doubt ordained to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law, if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately, to the cases before them. Considered in that context, we could not find from the decisions reported in 1997 (9) SCC 101 (supra) and 2000 (9) SCC 151 (supra) any law having been declared or any principle or question of law having been decided or laid down therein and that in those cases this Court merely proceeded to give certain directions to dispose of the matter in the special circumstances noticed by it and the need felt, in those cases, by this Court to give such a disposal. The same could not have been mechanically adopted as a general formula to dispose of, as a matter of routine, all cases coming before any or all the courts as an universal and invariable solution in all such future cases also. The High Court had no justifying reason to disturb the conclusion of the first Appellate Court, in this regard”. “In Mithilesh vs State (NCT of Delhi) (2014) 13 Supreme Court Cases 423, appellant, who was running a small Kirana shop was held guilty for violation of section 2 (i-a) (a) (m) and punished under section 7 read with section 16 (1) of P.F.A. Act for adulteration in red chilli powder with imprisonment for one year, fine of Rs. 3000 and in default of payment of fine simple imprisonment for 3 months by the Magistrate's Court and the said sentence was upheld by the Appellate Court. In revision, the High Court upheld that conviction but the quantum of sentence was reduced to 3 months' RI which is the minimum sentence, giving reasons in para -25 of the judgment that offence related to the year 1993; 12 days incarceration had already been undergone by the petitioner who was 47 years of age; he having rooted himself in society, the ends of justice would be met with if the sentence was reduced to three months. On request for showing further leniency it was held by the Supreme Court that no further benevolence could be shown to the appellant, more so, when it was a case of food adulteration. There were no special circumstances which could warrant reducing the sentence below the minimum and accordingly dismissed the appeal”. In the State of Rajasthan vs. Jagdish Prasad, (2009) 12 Supreme Court Cases 646, the Supreme Court did not approbate the commutation of sentence of 6 months' RI to fine. The relevant paragraphs of the judgment are as follows: “2. There were no special circumstances which could warrant reducing the sentence below the minimum and accordingly dismissed the appeal”. In the State of Rajasthan vs. Jagdish Prasad, (2009) 12 Supreme Court Cases 646, the Supreme Court did not approbate the commutation of sentence of 6 months' RI to fine. The relevant paragraphs of the judgment are as follows: “2. By the impugned judgment the High Court while upholding the conviction for offences punishable under sections 7 and 16 of Prevention of Food Adulteration Act, 1954 (in short “the act”) imposed a fine of Rs. 6000 and directed that the same is in commutation of the sentence of 6 months' RI as awarded by the learned Chief Judicial Magistrate, Sikar. It was directed that the appropriate Government shall formalise the matter by passing an appropriate order under clause (d) of section 433 of the Code of Criminal Procedure, 1973 (in short “the Code”) if the amount is deposited within a particular period. For the aforesaid purpose the High Court relied on a decision of this Court in N. Sukumaran Nair vs. Food Inspector. Learned counsel for the appellant State admitted that High Court's order is clearly unsustainable. Learned counsel for the respondent on the other hand supported the judgment. In Dayal Singh vs. State of Rajasthan it was interalia observed as follows (SCC pp. 728-29, para-15) “15. In the instant case it was not disputed that for the offence charged a minimum sentence of 6 months rigorous imprisonment is prescribed by law. The appellant has been sentenced to undergo 6 months rigorous imprisonment which is the minimum sentence. We are not inclined to modify the sentence by passing an order of the nature passed in N. Sukumaran Nair (supra) where this Court in exercise of its extra ordinary jurisdiction imposed only a sentence of fine and directed the State to exercise its powers under Section 433 of the Code of Criminal Procedure to commute the sentence of simple imprisonment for fine. In the instant case the appellant has been sentenced to undergo 6 months rigorous imprisonment. Moreover we are firmly of the view that strict adherence to Prevention of Food Adulteration Act and the Rules framed there under is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could go away with mere fine. Moreover we are firmly of the view that strict adherence to Prevention of Food Adulteration Act and the Rules framed there under is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could go away with mere fine. We, therefore, find no reason to interfere with the sentence imposed against the appellant.” 5. In the circumstances, the appeal is allowed. The sentence, as imposed by the trial Court is restored. However, since the occurrence took place nearly three decades back if the respondent-accused moves the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective. For a period of three months the accused need not surrender to undergo sentence during which period it shall be open to him to move the appropriate Government for commutation. If no order in the matter of commutation is passed by appropriate Government the accused shall surrender to custody to serve the remainder of sentence.” 20. So on perusing the law laid down by the Hon'ble Supreme Court, it is settled principle that the power to commute the sentence solely vests in appropriate Government under Section 433 Cr.P.C. This Court have no jurisdiction to commute the sentence below minimum prescribed under the P.F.A. Act. 21. In this case, it appears that the occurrence taken place on 12.02.1987 i.e. more than three decade back. At the time of the statement of the accused recorded under Section 251 Cr.P.C., he was about 28 years old on 27.10.1988, therefore, as on date, his age would be approximately 58 years. He has already spent 17 days in jail after having been convicted by Appellate Court out of the awarded sentence of 6 month. The offence discloses that he was found selling adulterated Khoya, which contained 3.2 per cent less fat and positive presence of cane sugar. This is an offence of very petty nature. It has not been found injurious to health also. Therefore, looking to the fact that during the period, the accused/revisionist remained on bail. He did not commit any offence and he seems to have rooted well in society approximately 31 years down the line since commission of the offence, the ends of justice would be made if his sentence is reduced to three months rigorous imprisonment and fine of Rs. 1000/-only. He did not commit any offence and he seems to have rooted well in society approximately 31 years down the line since commission of the offence, the ends of justice would be made if his sentence is reduced to three months rigorous imprisonment and fine of Rs. 1000/-only. The period served by revisionist will be set off in this sentence. 22. The revision is partly allowed. Conviction of the revisionist is maintained. His punishment is reduced to three month rigorous imprisonment and fine of Rs. 1000/-with default clause is maintained. 23. However, if the revisionist moved the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective, for a period of three month. The accused need not surrender to undergo sentence during which period it shall be opened to him to move the State Government for commutation. If no order in the matter of commutation is passed by appropriate Government, the accused shall surrender to custody to serve the remainder of sentence. 24. The office is directed to transmit back the record of the Lower Court with a copy of judgment and order of this Court for immediate compliance.