Court on its own motion vs Sherba and Another

T.R. Handa, J.—Respondent No. 2 is a co-operative society while Respondent No. 1 Shri Sherba at the relevant time was working as its salesman. On 3-10-1979 the Food Inspector visited the premises of Respondent No. 2 at Puruwala, Tehsil Paonta Sahib and found in its possession about 3 kg. of coloured sweets meant for sale. Respondent No. 1 Shri Sherba was at that time working in the said premises of Respondent No. 2 as its salesman. The Food Inspector purchased a sample of coloured sweets for the purposes of analysis from Respondent No. 2 through Respondent No. 1. The sample was purchased and dealt with in accordance with the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as ''the Act'') and the Rules made thereunder. On being analysed it was found adulterated within the meaning of Section 2(i-a)(j) of the Act inasmuch as it contained unpermitted yellow acid coal tar dye and the permitted colouring matter was also in excess by 0.2 gm/kg than the maximum prescribed standard. Both the Respondents were, therefore, prosecuted and convicted u/s 16(1-A) read with Section 7 of the Act by the Chief Judicial Magistrate, Nahan.

After recording such conviction against the Respondents the learned Chief Judicial Magistrate vide his order dated 22-2-1983 imposed a fine of Rs. 5,000/- on Respondent No. 2 for the said conviction. In so far as Respondent No. 1 is concerned no sentence was imposed upon him as he was allowed the benefit of Section 4 of the Probation of Offenders Act.

This matter having attracted the attention of the then Hon''ble the Chief Justice of this Court, his Lordship decided to suo moto exercise his revisional jurisdiction and hence passed the following order on 29-7-1983:

I find that the trial Court has given benefit of Probation of Offenders Act in a case where unpermitted coal tar dye was used in the article of food and for which a minimum sentence is prescribed. Moreover, it appears that the trial Court has misunderstood a judgment of this Court in Criminal Revision No. 73 of 1982, Ramesh Chand and Anr. v. State of H.P., decided on 17th November, 1982.

Notice to the Respondents to show cause why they should not be awarded a sentence of imprisonment and a fine. Notice for 25th August, 1983.

This is how the Respondents have appeared before this Court to answer the said show cause notice.

I may mention at the very out-set that the conviction of the Respondents as recorded by the learned Chief Judicial Magistrate has not been questioned before me on behalf of either of them. The short question, therefore, which falls for consideration is whether the order of the Chief Judicial Magistrate imposing a sentence of fine only on Respondent No. 2 and allowing benefit of Section 4 of the Probation of Offenders Act to Respondent No. 1 for their conviction u/s 16(1-A) of the Act is sustainable in law and if not what sentence is called for in the circumstances of this case.

As is obvious from the various provisions of the Act, the main object which the Legislature had in its mind in enacting this Act was to eradicate the evil of food adulteration which had become rampant and to ensure supply of food articles answering to a minimum standard of purity which it was becoming difficult to procure in the market. The provisions initially enacted in the shape of the Prevention of Food Adulteration Act, 1954 were, however, found insufficient to attain the avowed object. One of the reasons was that the offenders were not being adequately punished by the Courts and quite often they were let off with a simple sentence of fine only which had no effect whatever on the offenders who were earning much more pecuniary benefits in the trade of adulterated food stuff. The Legislature, therefore, decided to ensure imposition of more drastic and deterrent sentence to the offenders. The initial penal provision found in Section 16(1) of the 1954 Act was substituted by a more stringent provision found in Section 16(1) of the Act as amended by Act No. 49 of 1964. The penal provision as it initially existed and. as it existed after the amendment of 1964 are reproduced below:

Section 16(1) of the 1954 Act:

(1) If any person-

(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;

(ii) other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act, or of any rule made thereunder; or

(b) prevents a food inspector from taking a sample as authorised by this Act; or

(c) prevents a food inspector from exercising any other power conferred on him by or under this Act; or

(d)being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any material which may be employed for the purpose of the adulteration; or

(e) uses any report or certificate of a test or analysis made by the Director of Central Food Labora tory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or

(f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees:

Provided that-

(i) if the offence is under Sub-clause (i) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (l) of Clause (i) of Section 2 or misbranded under Sub-clause (k) of Clause (ix) of that Section; or

(ii) if the offence is under Sub-clause (ii) of Clause (a),

the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.

Section 16(1) of the Act as amended by Act No. 49 of 1964:

16(1) If any person-

(a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells, or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder; or

(b) prevents a Food Inspector from taking a sample as authorised by this Act; or

(c) prevents a Food Inspector from exercising any other power conferred on him by or under this Act; or

(d) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any material which may be employed for the purpose of adulteration; or

(e) being a person in whose safe custody any article of food has been kept under Sub-section (4) of Section 10, tampers or in any other manner interferes with such article; or

(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory, or by a Public Analyst or any extract thereof for the purpose of advertising any article of food; or

(g) whether by himself or by any person on his behalf gives to the purchaser a false warranty in writing in respect of any article of food sold by him,

he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable-

(i) for the first offerce, with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both;

(ii) for a second offence, with imprisonment for a term which may extend to two years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees;

(iii) for a third and subsequent offences, with imprisonment for a term which may extend to four years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees.

Further experience, however, showed that the amended penal provision found in the Act after its amendment in 1964 also did not have that deterrent effect and the evil of food adulteration persisted in spite thereof. The Legislature, therefore, in its wisdom considered it necessary to not only provide a minimum sentence for the offences under the Act but in appropriate cases to deprive the Courts of their discretion to impose a sentence less than the minimum prescribed. It was with this end in view, that is, to make the penal provisions yet more drastic and deterrent that the Act was once again amended in 1976 vide Act No. 34 of 1976. Section 16(1-A) in its existing form and with which we are concerned in this case was inserted in the Act vide the aforesaid Act No. 34 of 1976. This provision reads:-

(1-A) If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes-

(i) any article of food which is adulterated within the meaning of any of the Sub-clauses (e) to (l) (both inclusive) of Clause (ia) of Section 2; or

(ii) any adulterant which is injurious to health,

he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees:

Provided that if such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code, 45 of 1860, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.

It is clear that Section 16(1-A) as it now exists prescribes a minimum sentence of imprisonment of one year and a fine of Rs. 2000/- for an offence falling within its purview. Whereas the Courts have the discretion to award an enhanced sentence of imprisonment upto 6 years and fine to any extent, they have no option whatever to award a lesser sentence than that prescribed by this provision.

Another amendment made vide amending Act No. 34 of 1976 and which is relevant for our purpose is the insertion of Section 20AA in the Act. This new section reads:

20-AA. Application of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973.- Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

Now the Probation of Offenders Act and Section 360 Code of Criminal Procedure confer discretionary jurisdiction on the Court to release an offender after admonition in respect of certain specified offences. In other suitable cases where an offender is found guilty of having committed an offence not punishable with death or imprisonment for life, the Court has been empowered under the said provisions to release him on probation. These provisions being of general application had obviously been invoked by the Courts in appropriate cases of convictions under the Act also. The Legislature while deciding to make the penal provision in the Act more stringent and deterrent and to deprive the Court of its discretion to award sentence lesser than that prescribed for certain offences, also decided to strip off the Court of its power to allow the benefit of Section 360 Code of Criminal Procedure and the Probation of Offenders Act to the offenders under the Act. It was with the same intention of making the penal provisions more deterrent that a special provision in the form of Section 20AA was inserted in the Act. It is well recognized rule of interpretation of statutes that where special and general provisions on the same subject are found contained in different enactments of the same legislature, a case falling within the purview of special provision must be governed by that provision alone and not by the terms of the general provision. This rule would be countenanced all the more where the special provision is found in a latter enactment.

In view of the legal provisions discussed above, the position that emerges is that after the enanctment of Act No. 34 of 1976 (i) the special provision found in Section 20AA of the Act clearly interdicts the Court from applying either of the two provisions, namely, Probation of Offenders Act and Section 360 of the Code of Criminal Procedure to a prosecution under the Act unless the offender is below 18 years of age and (ii) a person found guilty of having committed an offence punishable u/s 16(1-A) of the Act must be sentenced to imprisonment for a term which may extend to six years but shall not be less than one year and also to pay a fine which shall not be less than two thousand rupees.

The learned Counsel for the Respondents cited some authorities of the Supreme Court where the benefit of the Probation of Offenders Act had been allowed to the offenders under the Act. In all such cases the offence had been committed prior to the enforcement of Act No. 34 of 1976 when as observed earlier there was no bar for the Court to apply the provisions of the Probation of Offenders Act as also Section 360 Code of Criminal Procedure to the prosecution under the Act. The learned Counsel could not cite any authority where such benefit had been allowed to an offender under the Act in respect of an offence committed after the insertion of Section 20AA in the Act.

It is, therefore, manifest that the impugned order of the Chief Judicial Magistrate in so far as it operates to give the benefit of Section 4 of the Probation of Offenders Act to Respondent No. 1 is patently illegal. The same is, therefore, quashed. In view of the circumstances of this case as reflected in the judgment of the Chief Judicial Magistrate I do agree that this Respondent deserves to be dealt with leniently in the matter of award of sentence. In my view, therefore, the award of the minimum prescribed sentence would serve the ends of justice in his case. I would accordingly sentence Sherba, Respondent No. 1, to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for three months. This Respondent is directed to surrender himself in the Court of the Chief Judicial Magistrate, Nahan for serving out the sentence within four weeks from today failing which the Chief Judicial Magistrate shall take necessary and effective steps to ensure execution of this order.

In so far as Respondent No. 2 is concerned, this Respondent, in my view, has been adequately dealt with in the matter of sentence. As observed earlier, Respondent No. 2 is an artificial entity being a co-operative society. Sentence of imprisonment if awarded against such an artificial person it would not be capable of execution. It would, therefore, be futile to pass a sentence of imprisonment against such an artificial person. The sentence of fine imposed upon this Respondent being Rs. 5000/- meets the requirement of law. I would accordingly make no interference with the order of the learned Chief Judicial Magistrate in so far as it deals with Respondent No. 2.