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2019 DIGILAW 144 (ALL)

Genda Lal v. State of U. P.

2019-01-18

SURESH KUMAR GUPTA

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JUDGMENT : Suresh Kumar Gupta, J. 1. This criminal revision has been preferred against the judgment and order dated 12.09.1995 passed by Sessions Judge District Etah in Criminal Appeal No. 70 of 1992, upholding and confirming the judgment and order dated 14.07.1992 passed by A.C.J.M., Kasganj, Etah convicting and sentencing him to undergo six months rigorous imprisonment and a fine of Rs. 1000/-, in default thereof three months 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-: On 28.7.1985 at about 10:00 a.m. Sri B.P. Singh, Food Inspector found that the accused-revisionist was selling or exposing for sale the mixed buffalo-goat milk. Accordingly, the Food Inspector took the sample of the said milk and after completing necessary formalities, sent the same to the public analyst for examination where the same in question was found deficient by 16% in milk fact and by 41% in milk solid non fat. Accordingly, a complaint was lodged against the accused-revisionist. 3. The learned court below recorded the evidence in the case after lodging the complaint and after public analyst report and after appraisal of the same, believed the prosecution story and convicted the revisionist and sentenced the revisionist, as above. Feeling aggrieved by the said judgment and order the present revision has been filed. 4. I have heardlearned counsel for the revisionist, learned A.G. A. for the State and perused the record. 5. Learned counsel for the revisionist contended that there is breach of Rule 9-A framed under the Act and the entire proceedings thus stand vitiated. It has further been contended by the learned counsel for the revisionist that the complainant was initiated by the prosecution on 7.10.1985 while the copy of the report of the result of public analyst was sent to the revisionist on 11.12.1985 that is 65 days after the institution, therefore, order passed by court below is illegal and against the provisions of law. 6. 6. It has vehemently argued by the learned counsel for the revisionist that the court below has failed to appreciate that the intimation sent to the revisionist under Section 13 (2) of the P.F. A. Act shows that complainant was filed in the court of Magistrate (Special Court) Economic Offence Kasganj, but actually the case was lodged at Ist Additional Munsif Magistrate, Kasganj, therefore, mentioning wrong court in the notice deprived the valuable right of the revisionist to get the same analyzed by Central Food Laboratory Calcutta, while specific time was there therefore, order is illegal. 7. It has further been submitted that the court below has failed to consider that there is no compliance of Section 10 (7) of the Act, as no attempt has been by the Food Inspector to call the public witness although the incident had taken place at a public place and in the morning. 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. 8. 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. 9. Learned counsel for the revisionist failed to show that prescribed standard of Milk falling below due to natural cause which is beyond the control of human agency. 10. 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. 11. 10. 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. 11. Lastly, it is contended by learned counsel for the revisionist that the revisionist has suffered the pain and agony of trial for more than 33 years because the alleged occurrence is of date 28.07.1985. It is contended by the learned counsel for the revisionist that the accused was initially granted bail vide court's order dated 21.9.1995 since thereafter this case was not taken up for long time and the court issued bailable warrants on 15.2.2017. In pursuance to that the accused got himself bailed out from the court of Chief Judicial Magistrate on 6.3.2017. Accordingly report was submitted by C.J.M., Etah on 8.3.2017 and again this was listed on 13.10.2017 but the revisionist failed to appear before revisional court. So N.B.W. was issued through C.J.M. On 13.10.2017. In compliance of order of this Court accused arrested on 21.11.2017. Then bail application was moved by learned revisional court on 15.2.2018. Then revisionist was bailed out by revisional court as per order of 21.3.2018. 12. It is seen to appear in this case that out of the period of punishment of six months, the revisionist, Genda Lal has already been in jail for more than four months. So in this case it was prayed by the learned counsel that he may be released on the sentence already undergone. This question rises for consideration as to whether this Court can reduce punishment below than the punishment prescribed under law. In this regard the provisions of law is being considered as followed:- “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. 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. 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. 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 thereunder 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.” 13. In this case, it appears that the occurrence taken place on 28.07.1985 i.e. more than three decade back. At the time of the statement of the accused recorded under Section 313 Cr.P.C., he was about 25 years old on 25.05.1992, therefore, as on date, his age would be approximately 61 years. He has already spent over four months in jail after having been convicted by Appellate Court out of the awarded sentence of 6 month. At the time of the statement of the accused recorded under Section 313 Cr.P.C., he was about 25 years old on 25.05.1992, therefore, as on date, his age would be approximately 61 years. He has already spent over four months 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 milk, which was deficient by 16% in milk fat and by 41% in milk solid non fat. 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 33 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 no remission in fine and in default clause. Since the default clause stipulates one month additional simple imprisonment in case of non payment of fine of Rs. 1000/ only. The said period would also be treated to have served by him. 14. 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. Since he has already served out the said sentence he shall be released in this case forthwith, if not, warranted in any other case. 15. 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.