Ahmedabad Municipal Corporation vs Ramesh Nandkishor Jagnani and Others

Z.K. Saiyed, J.—The present appeal, u/s 378 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 18.5.2010 passed by the learned Metropolitan Magistrate, Court No. 8, Ahmedabad in Criminal Case No. 13 of 2005, whereby the learned trial Judge was pleased to convict the accused - Respondents for the offence punishable u/s 7(ii) of the Prevention of Food Adulteration Act and imposed punishment to remain present in the Court till rising of the Court and also imposed fine of Rs. 2500/- upon each accused, in default, to undergo 7 days imprisonment.

As per the case of the prosecution, the complainant - Food Inspector and his peon visited the firm of the accused on 12.4.2004 at 1:00 p.m. and purchased three packets of While Sandwich Bred (Britaniya Premium Bred) for analysis purpose. The said sample was sent to Public Analyst and as per the report, the same sample was found adulterated. Therefore, the complaint was lodged against the accused for the offence punishable u/s 7(2) of the Prevention of Food Adulteration Act and in the result, Criminal Case No. 13 of 2005 was registered before the learned Metropolitan Magistrate, Court No. 8, Ahmedabad.

After considering the documentary evidence as well as oral evidence led before him, the learned trial Judge has held guilty and convicted the accused as stated above by passing the order dated 31.5.2010.

Therefore, the Appellant has preferred present Appeal through Food Inspector for enhancing the sentence imposed upon the accused by the learned trial Judge.

Heard the parties.

I have perused the documents on record and also considered the submissions made by the learned advocates for the parties. I have perused the judgment and order passed by the learned trial Judge. It appears from the order passed by the learned Magistrate that the learned Magistrate has committed an error in imposing minimum sentence upon the Respondent-accused. Learned trial Judge while imposing the sentence, has ignored the provisions of Act. After appreciating the documents, learned Magistrate held guilty the accused for offence punishable u/s 7(2) of the Prevention of Corruption Act and even the samples, which were collected for analysis, found adulterated and also in the judgment and order, it is also observed by the learned trial Judge that the accused has committed the offence punishable u/s 7(2) but the sentence, which is imposed, is minimum i.e. till the rising of the Court with fine of Rs. 2500/- upon each accused. As per decision reported in GLH 2005 . 2122 in case of State of Gujarat v. Natvar Harchandji Thakore GLH 2005 . 2122, no doubt the said decision relates to the offence committed under the Bombay Prohibition Act and it is held that the Court is competent to impose less than the minimum sentence for first offence "for special and adequate reasons" that are peculiar to each accused. The reasons must be "special and adequate" to the circumstances in a given case that are "peculiar to the accused in each case". Here in the present case, the offence against the accused is proved and learned Magistrate held guilty the accused for the offence committed by the accused. Public analyst report shows the breach on the part of the accused is very well proved on record. Therefore, it is established that the learned trial Judge has not taken into consideration the provisions of the Act, while imposing the sentence upon the accused. There is sum and substance in the arguments of Mr HL Jani learned APP and, therefore, the matter requires to be remanded back for a fresh trial in accordance with law, on merits.

In view of the above, this Appeal is partly allowed. The impugned judgment and order dated 31.5.2010 passed by the learned Metropolitan Magistrate Court No. 8, Ahmedabad in Criminal Case No. 13 of 2005 is hereby quashed and set aside. The case is remanded to the trial Court with a direction to decide the same on merits and in accordance with law. The learned Chie f Metropolitan Magistrate, Ahmedabad is directed to notify the said Criminal Case before the concerned Metropolitan Magistrate with a direction to decide the said case within a period of six months from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith.