Ramnath vs State of M.P.

S K. Chawla, J.

By this revision, the accused challenges his conviction and sentence u/s 7 read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 recorded by the trial Court and affirmed by the appellate Court.

The prosecution case was that on 18-12-1982 around 11 to 12 noon applicant Ramnath was seen carrying milk in two cans from village Imlidih to Ghargoda, when he was stopped by Food Inspector Shri P. C. Sikri (PW-1) in village Imlidih itself. The Food Inspector purchased a sample of milk from the applicant measuring 660 ml. The sample was put into 3 glass bottles, which were duly packed and sealed. One of the bottles was sent by the Food Inspector to public Analyst Bhopal for analysis. The Public Analyst vide his report, Ex. P-10, reported that the sample milk contained milk fat 40% and milk solids not fat (I. B. SNP) 7.11%. Milk was said to be mixture of cow and buffalo milk. It was below standard and hence was adulterated.

Both the Courts below accepted the prosecution story. The applicant was convicted u/s 7 read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act by the two Courts below. The sentence awarded by the trial Court was R. I. for six months and fine of Rs. 1,000/'', in default, R. I. for three months. The appellate Court fully maintained the sentence. Feeling aggrieved the applicant has now come up in revision to this Court.

The first point urged by learned counsel for the applicant was that evidence of independent Panch witness Sushil Kumar (PW-2) ought to have been accepted by the Courts below and the applicant acquitted It was emphasised that this witness was not even declared hostile by the prosecution and therefore the prosecution was bound by what he deposed. There is no force in this submission. A reading of the evidence of this witness would show that he was a self confessed liar. The statement of this witness was recorded on two dates viz 5-1-1987 and 20-1-1987 On the first date his examination-in-chief and cross examination before charge were recorded. On the second date his further cross-examination after charge was recorded. On the first date, this witness deposed in his examination-in-chief that applicant Ramnath was keeping milk for sale with him in village Imlidih. The Food inspector was sitting in the shop of the witness in village Imlidih. It was further the evidence of this witness that Food. Inspector then took a sample of milk from applicant Ramnath He did not however remember in how many bottles the sample milk was taken. He did not even remember if Food Inspector had given any money to the applicant. The Food Inspector had closed and sealed the bottles. He had attested writings Exs. P-3 and P-4 prepared at the spot. In cross-examination before charge, this witness made an admission that the Food Inspector had not cleaned the sample bottles in his presence. Even this admission would not lead to an inference that sample bottles were not clean. What the witness meant to say was only the fact that cleaning of the bottles was not done by Food Inspector in his presence. On the second date during further cross-examination after charge this witness made a complete departure from his previous evidence. He went on to say that he had not seen any kind of milk with the applicant Departing from previous story he also stated that there were 3 sample bottles, all of which were already lying in his shop and were in a dirty condition In Court questioning the witness felt cornered to admit that his evidence given on 5-1-1987 to the effect that applicant Ramnath was having milk for sale with him, was false. This witness was thus on his own admission a person who had perjured himself on the previous occasion. He was self-confesses liar. Nothing more was needed for disbelieving his entire evidence irrespective of the fact whether he bad been declared hostile or not. The two Courts below did not commit any error in disbelieving the evidence of this witness and in relying upon the solitary testimony of Food Inspector Shri P. C. Sikri (PW-I). There was no legal bar to acceptance of the sole-testimony of the Food Inspector. The evidence of the Food Inspector Shri Sikri fully proved the prosecution story against the applicant, including the fact that the sample bottles were in proper condition and were duly sealed and picked

It was next contended, although feebly, that there was non-compliance of the requirement contained in Section 13 (2) of the Prevention of Food Adulteration Act inasmuch as copy of the report of public Analyst v. not sent to the applicant by the Local (Health) Authority This submission was contrary to the evidence which was led in the case. The evidence B. R. Thethwar (PV-2), a clerk in the office of Local (Health) Authority Raigarh, showed that copy of the report of Public Analyst was sent by Local (Health) Authority Raigarh by registered post to the applicant on 1-2-19 vide postal receipt, Ex. P-14. The present prosecution was instituted against the applicant on 9-2-1983. It would thus appear that copy of the report of Public Analyst was sent to the applicant within just 5 days from the institution of the prosecution against him. There was absolutely no basis to say that requirements of Section 13 (2) or that of Rule 9-A of the Prevention of Food Adulteration Rules were not complied with.

In his final submission, learned counsel for the applicant prayed for leniency being shown to the applicant particularly because the alleged crime was committed not less than 9 years back. It was urged that no useful purpose would now be served by sending the applicant to jail at this point of time. Rather it was urged that would be gratuitous cruelty. It was submitted that the ends of justice would be met if the sentence of the applicant is reduced to fine.

I find that Section 16 of the Prevention of Food Adulteration Act was recasted by Amending Act No. 34 of 1976 which came into force on 1-41976. The provision of the recasted Section applies to offences committed after 1-4-76 when the recasting was done. The scheme of the recasted Section is that with respect to offences falling u/s 16 (1), a minimum sentence of 6 months and a fine of Rs. 1,000/- is prescribed If special and adequate reasons are mentioned and the offence falls within the first proviso to Section 16 (1), like the offence under consideration in this case, then a lesser minimum sentence of 3 months and a fine of Rs. 500/- is prescribed. But in no case, meaning thereby that even when adequate and special reasons exist, any sentence lesser than the lower minimum sentence, can be given In other words, sentence below 3 months imprisonment and a fine of Rs. 500/- cannot be given in any case

Learned counsel for the applicant cited a Single Bench decision of our High Court in Stale of M. P. v. Balaram 1990 (1) FAC 169 , to contend that even with respect to offences u/s 16 (1) of the Food Adulteration Act committed after 1-4-1976 sentence of more fine may be imposed. In that case, the High Court after setting aside the acquittal of the respondent/accused for the offence u/s 16 (1) of the Prevention of Food Adulteration Act, 1954, visited him for the offence committed on 9-1-1980, with the sentence of fine of Rs. 1,000/- without inflicting any substantive imprisonment. Justification for inflicting lighter sentence in that case was partly sought in certain government notification dated 2-12-1988. It is not known that exactly what notification is. That apart, the said notification could not be anything but administrative direction. It is apparent that an administrative direction can not override or alter a legislative enactment. The question whether any sentence lower than the minimum prescribed by the recasted Section could be lawfully imposed was neither raised nor decided in the said decision. Law of precedent is clear. A precedent is binding authority only on the question raised and decided by it. The decision in Rajput Ruda Meha and Others Vs. State of Gujarat, is in point. Unless the Court applied its mind and analysed a particular provision of law, mere general observations in a ruling would also not do. See Raval and Co. Vs. K.G. Ramachandran and Others, The decision in Bahrain''s case (supra), relied upon by learned counsel for the applicant, is no authority on the question about quantum of Sentence that may lawfully be imposed for offences falling under recasted provision of Section 16 (1) under consideration. Where minimum sentence is prescribed leaving no discretion to the Court, as in the recasted provision under consideration, then even the High Court cannot arrogate to itself the power to reduce the sentence below the minimum prescribed by the legislature. Reference may be made in this regard to the decision, State of Andhra Pradesh Vs. S.R. Rangadamappa, laying down that where a statute prescribes a minimum sentence for an offence and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances, he High Court cannot in its revisional jurisdiction reduce the sentence of imprisonment to less than the minimum prescribed. That was no doubt a case under Andhra Pradesh Excise Act but the principle would apply also to cases under the Adulteration Act.

My conclusion is that on the plain language of the recasted provision of the Adult ration Act under consideration, when the conviction is with respect to offence u/s 16 (1) of the Act, a sentence below 6 months and fine below cue thousand, cannot be visited. But if special and adequate reasons exist and are mentioned in the judgment and the first proviso to Section 16 (1) is attracted, as in the present case because adulteration in the present case was on the ground of deficiency in standard with respect to article of primary food, i.e. milk, resulting from human agency then a lower minimum sentence of 3 month and a fine of Rs 500/- may be visited. But in no case, meaning thereby that even when adequate and special reasons exist, any sentence lesser than the lower minimum sentence can be visited. In other words, sentence below 3 months imprisonment and a fine of Rs. 600/- can not be given in any case.

In the resent case, it may be said that there exist adequate and special reasons to take a lenient view, if only because crime was committed long back i.e. 9 years back and the deficiency in mill standard found in the present case, if not marginal, was at the same time not much. Yet no sentence lesser that he lower minimum can be imposed

In view of the foregoing discussion, the revision is partly allowed. The conviction of the applicant u/s 7 read with Section 16 (1) (a) (i) of the Prevision of Food Adulteration Act is maintained. The sentence is however reduced to R. I. for 3 months and a fine of Rs. 500/-, in default to further R. I. for one month. With this modification in the sentence, the revision is dismissed.