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2020 DIGILAW 516 (UTT)

JALALUDDIN v. STATE OF UTTARAKHAND

2020-12-01

N.S.DHANIK

body2020
JUDGMENT Hon'ble N.S. Dhanik, J. This criminal revision is preferred by the revisionist against the judgment and order dated 27.07.2013 passed by the learned Additional Chief Judicial Magistrate, Kashipur, District U.S. Nagar in Criminal Case No. 935 of 2008, whereby the revisionist was convicted for the offence punishable under Section 7 (1) r/w Section 16 of the Prevention of Food Adulteration Act, 1954 sentenced to undergo six months simple imprisonment and a fine of Rs. 1,000. The revisionist has also challenged the judgment dated 20.09.2014 passed by learned Additional Sessions Judge, Kashipur, District U.S. Nagar in Criminal Appeal No. 177 of 2013, whereby the appeal preferred by the revisionist was dismissed. 2. Brief facts of the case are that the Food Inspector purchased the adulterated cream from the present revisionist weighing 300 ML on payment of Rs. 19.50/- for which receipt was granted. The necessary formalities were thereafter complied with by the Food Inspector. The sample was collected. The sample was sent to the analyst and as per the report of the analyst, the product was adulterated. Accordingly, an FIR was lodged against the revisionist. 3. After investigation, the Investigating Officer filed a charge sheet against the accused revisionist. Based on the same, charges were framed and the Court below has convicted the revisionist for the aforementioned offence. 4. Learned counsel for the revisionist submits that under Sections 51 & 52 of the Food Safety and Standards Act, 2006, the maximum penalty for sub-standard food or branding is only fine. He, therefore, submits that the conviction may be set-aside on that ground. In order to buttress his argument, he relied on the judgment of Hon'ble Supreme Court in Trilok Chand vs. State of Himachal Pradesh passed in Criminal Appeal No. 1831 of 2010 dated 01.10.2019 wherein the Hon'ble Supreme Court has observed as under: “We have considered the respective submissions. In Criminal Appeal No.214 of 2006, this Court relied on a decision in T. Barai Vs. Henry Ah Hoe and Another [ (1983) 1 SCC 177 ] wherein it was opined that since the amendment was beneficial to the accused persons, it could be applied with respect to earlier cases as well which are pending in the Court observing: 22. It is only retroactive criminal legislation that is prohibited under Article 20(1). Henry Ah Hoe and Another [ (1983) 1 SCC 177 ] wherein it was opined that since the amendment was beneficial to the accused persons, it could be applied with respect to earlier cases as well which are pending in the Court observing: 22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7 th Edn., at pp. 388-89: A retrospective statute is different from an ex post facto statute. “Every ex post facto law...." said Chase, J., in the American case of Calder v. Bull “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." 5. Learned State Counsel submits that there is no illegality in the impugned judgment and the trial Court as well as the appellate Court has rightly convicted the revisionist for the aforementioned offence. 6. Considering the facts and circumstances of the case and the submissions of learned counsel for the parties, the present revision is partly allowed and the sentence imposed upon the revisionist is modified by enhancing a fine of Rs. 1,000/- to Rs. 10,000/-. Rest part of the sentence is set-aside. Amount of fine, as enhanced by this Court, shall be deposited by the revisionist within one month from the date of production of certified copy of this order. Amount, if any, deposited earlier shall be adjusted. If the revisionist fails to deposit the enhanced amount of fine within one month from the date of production of certified copy of this order, he shall serve the additional six months imprisonment. The impugned judgment and order stands modified to the extent indicated above. 7. Let a copy of this judgment and order, along with the LCR be sent back to the Court concerned.