Parasmal Nathumal Jain & Anr 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 applicants - original accused have prayed for quashing and setting aside the judgment and order of conviction and sentence dated 04.04.2006 passed by the learned 4th Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur, in Criminal Case No.59 of 1990, by which the applicants were convicted for the offence punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act (which shall hereinafter be referred to as "Act" for short) and sentenced for a period of one year simple imprisonment with fine of Rs.1,000/- (One Thousand), each and in default of payment of fine to undergo further one month simple imprisonment. The said order was assailed by way of filing Criminal Appeal No.5 of 2006, wherein, vide order dated 03.12.2010 passed by the learned 3rd Additional Sessions Judge, Banaskantha - Palanpur, the appeal came to be dismissed and the order of the trial Court has been confirmed and upheld in the appeal. Hence, the present Revision Application is filed by the applicants-accused.

2) Learned Advocate for the applicants has submitted that both the Courts have committed error in convicting the applicants as the respondent no.2 had purchased 375 ml palmolein oil from the applicants and drawn the same as sample without proper and correct procedure. He has further submitted that the applicant no.1 used to store goods in a same condition as supplied to him by the Government. He has further submitted that the receipt at Exhibit 41 reveals that the complainant had sent the memorandum and specimen impression of the seal used to seal the packet in unsealed packet. He has further submitted that the established procedure of collecting sample and sealing procedure was not followed. He has further submitted that no any offence was made out under Section 7 and 16 of the Act. He has further submitted that though the applicants are having good case on merits but he has further requested to consider subsequent amendment in the Act by which Sections 51 and 52 of the Food Safety and Standard Act, have been amended and under the said sections only fine is to be imposed. Therefore, he has requested to maintain the conviction but modify the sentence and impose fine only and requested to take lenient view.

3) Learned APP for the respondent - State and learned Advocate for the respondent no.2 Food Inspector have supported the case and the judgment of both the Courts and submitted that no interference of this Court is required. Both the Advocates have fairly admitted that herein charge against the accused is qua sub-standardization of goods.

4) Having heard the learned Advocates for the respective parties and going through the facts and circumstances of the case, it appears that the accused are convicted for sub-standard of the goods and the case was registered under 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) each will serve the ends of justice in place of simple imprisonment of three months.

5) Accordingly, present revision application is partly allowed. The judgment dated 04.04.2006 passed by the learned 4th Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur in Criminal Case No.59 of 1990, as well as judgment dated 03.12.2010 passed in Criminal Appeal No.5 of 2006, by the learned 3rd Additional Sessions Judge, Banaskantha - Palanpur, are upheld. However, the order of quantum of sentence is modified by imposing a sentence of fine of Rs.5,000/- (Five Thousand) each upon both the accused in lieu of simple imprisonment of one year, which shall be deposited before the learned trial Court within four weeks from today.

6) 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.

7) Previous surety bonds of the applicants - accused stand discharged.

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