Jashuji Keshaji Chavda vs State Of Gujarat & Anr

Hasmukh D. Suthar, J

1) By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the judgment and order dated 26.02.2007 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case No.14/1993, wherein the applicant has been convicted for the offence under Sections 16(1)a(i) and 7 of The Prevention of Food Adulteration Act and sentenced to undergo three months rigorous imprisonment and fine of Rs.500/- , as well as the order dated 15.07.2010 passed by learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.31/2007 confirming the order of conviction.

2) Heard Mr.Ayush S. Jain, learned counsel for the applicant and Ms. Shruti Pathak, learned APP for the respondent State.

3) Brief facts of the case are that, on 24.06.1992 at 9:15 a.m, respondent No.2 carried out a raid at the house of the applicant, who was selling milk. The complainant purchased 750 ml. Of milk by paying Rs.4.50 for the purpose of sample in presence of panchas. Thereafter, the complainant took the milk sample in three different bottles, packed and sealed it and added 20 drops of formalin. The public analyst gave report that as per the standard prescribed under the Rules, the SNF of milk should be at least 8.5% in one minute, whereas the sample should 7.6 % of SNF and therefore, the sample of milk is adulterated.

4) Learned counsel for the applicant has submitted that the complainant has not followed the mandatory requirements in taking, preserving, packing, sealing and sending the samples for public analysis; that the complainant has not taken due care and precaution by stirring the milk before taking sample. The Public analyst has not been examined by the prosecution to prove the case against the applicant even though the entire case is based on the report of public analyst. No panchnama is carried out by the complainant at the time of taking the sample. The complainant has not stated anywhere in the complaint that he had taken the sample after stirring the milk. All these facts suggest that there are number of infirmities and lapses in following the mandatory procedure stipulated under the Act. Therefore, both the learned Courts have committed error in convicting the applicant. He has further submitted that no any offence was made out under Section 7 and 16 of the Act and if alleged case is falling under aduleterated, at no point of time the prosecution is able to prove breach of Sections 7 and 16(1)A(i) of the Act. In the sample, the milk fat is more than the requirement (limit of 3.5%) which shows that nothing is added or adulterated, which was also natural and this sample cannot be considered as adulterated and the complainant could not have misused his power. Further, the milk SNF is found 7.61 as against the requiremetn of 8.5, which cannot be said to be more than 20%. the said difference is natural and possible if the percentage of fat is more. Therefore, the applicant ought to have been acquitted. Both the Courts have failed to appreciate the evidence on record. Therefore, he has prayed to allow the revision application.

5) Learned APP for the respondent State has supported the case and the judgment of both the Courts and submitted that no interference of this Court is required.

6) Having heard the learned counsel for the respective parties and going through the facts and circumstances of the case, it appears that the accused is convicted for adulteration of the milk and the case was registered under The Prevention of Food Adulteration Act, 1954, after which the Food Safety & Standard Act, 2006 came to be passed. In view of provision of Sections 51 and 52 of the Food Safety and Standard Act, 2006, only penalty or levy of fine is contemplated. In such circumstances, in light of the judgment in Nemi Chand v. State of Rajasthan, reported in (2018) 17 SCC 448, and Triloki Chand v. State of Himachal Pradesh, reported in (2020) 10 SCC 763, as per which in cases where the article is found to be substandard, only penalty in the form of fine is required to be imposed. Therefore, this Court is of the view that a sentence of fine of Rs.5,000/- (Five Thousand) will serve the ends of justice in place of simple imprisonment of three months.

7) Accordingly, present revision application is partly allowed. The judgment dated 26.02.2007 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case No.14/1993 as well as the order dated 15.07.2010 passed by learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.31/2007 confirming the order of conviction are hereby upheld. However, the order of quantum of sentence is modified by imposing a sentence of fine of Rs.5,000/- (Five Thousand) upon the accused in lieu of simple imprisonment of three months, which shall be deposited before the learned trial Court within four weeks from today. It is further directed that the fine, if any, deposited by the accused before the learned Trial Court is liable to be adjusted and deducted out of the fine of Rs.5,000/- (Five Thousand) as mentioned hereinabove. Previous surety bonds of the applicant – accused stands discharged.

8) Record and proceedings, if any, be sent back to the concerned Court forthwith. Interim relief, if any, stands vacated.