Santosh Kumar vs State of U.P. and Another

Vinod Prasad, J.—The revisionist Santosh Kumar was tried in Case No. 1055 of 1995, State v. Santosh Kumarby A.C.J.M., Court No. 12, Jaunpur, u/s 7/16 of Prevention of Food Adulteration Act, P.S. Jafrabad, district Jaunpur. The trial court finding the case of the prosecution to be correct, convicted the revisionist u/s 16(1)(A) of P.F.A. Act and sentenced him for three months R.I. and to pay a fine of Rs. 500, vide its order dated 15.4.2002. Aggrieved by the aforesaid order the revisionist preferred an appeal before the Sessions Judge, Jaunpur, which was registered as Criminal Appeal No. 86 of 2002, Santosh Kumar v. State of U.P. The aforesaid appeal was transferred to the Court of Additional Sessions Judge/Fast Track Court III, Jaunpur. The lower appellate court dismissed the appeal vide its judgment and order dated 6.9.2006 and confirmed the conviction and sentence awarded by the trial court. The revisionist thereafter has challenged both the orders in instant criminal revision, which was filed on 12.9.2006.

The prosecution case in short is that Ram Autar Yadav, the Food Inspector, inspected the shop of the present revisionist, Santosh Kumar on 4.6.1995 at about 5 p.m. and he found that the revisionist was selling eatables without licence. The Food Inspector demanded the licence from the revisionist but he could not produce the same. The independent witnesses were called by the Food Inspector but none of them became ready to be a witness. The Food Inspector prepared the notice in duplicate and gave one copy to the revisionist and obtained his signatures. However, Shital Deen (B.H.W.) signed on the notice. The Food Inspector applied for sanction to the C.M.O. and after obtaining the same he filed a complaint in the Court against the revisionist, who was summoned for committing an offence u/s 7/16 of Prevention of Food Adulteration Act, and was charged with the said offence.

During the trial the Food Inspector was examined as P.W. 1 and Harihar Chaubey as P.W. 3. No other witness was examined by the prosecution P.W. 1 testified regarding the absence of licence for selling the eatable by the revisionist in his shop situated at Jafrabad, district Jaunpur. He also testified that C.M.O. granted the sanction on 26.6.1995.

P.W. 2, Harihar Chaubey who is the clerk in the office of C.M.O. had testified regarding the sanction granted by the C.M.O.

The revisionist in his statement u/s 313, Cr. P.C. denied selling of eatable in his shop and took the defence of false implication.

Believing the prosecution case the trial court convicted the revisionist and the appeal filed by him was also rejected. Hence this revision.

Learned Counsel for the revisionist contended that both the impugned orders are absolutely wrong and the revision deserves to be allowed and the revisionist be acquitted.

Learned A.G.A. on the other hand contended that both the impugned orders are passed on concurrent findings of fact and none of the impugned order suffers from any illegality. He submitted that the findings of fact cannot be disturbed in a revisional jurisdiction without there being any error of law and perversity in recording the same.

I have considered the submissions made on behalf of rival sides.

So far as the findings of fact recorded by both courts are concerned, the said findings do not suffer from any error of law or perversity, therefore, it cannot be said that conviction of the revisionist recorded by both the courts below is bad in law, hence I confirm the conviction of the revisionist recorded by the A.C.J.M. and confirmed by lower appellate court.

However, on the question of sentence, which was argued by the learned Counsel for the revisionist, I find that selling of eatable is offence u/s 7(iii) of P.F.A. Act. The said offence is punishable u/s 16(ii) of P.F.A. Act. The said Section 16(1)(ii) is qualified with two provisos. The second proviso to the aforesaid section provides that the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term, which may extend to 3 months and with fine, which may extend to 500 rupees. The case of the present revisionist is covered under the said proviso.

The said proviso is an exception to the minimum punishment rule provided under the Act which is six months and to pay a fine of Rs. one thousand. The said proviso is quoted below:

Section 16 Penalties.-(1)

(a) (i)

(ii)

Provided ....

Provided further that if the offence is under Sub-clause (ii) of Clause (a) and is with respect to contravention of any rule made under Clause (a) or Clause (g) of Sub-section (1A) of Section 23 or Clause (b) of Sub-section (2) of Section 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose and sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.

A bare reading of the said proviso makes it clear that so far as this proviso is concerned the Legislature has not provided the minimum sentence as in that event it could have enacted that the sentence should be not less than three months which it has not done. It provides that the sentence may extend to three months and with fine, which may extend to five hundred rupees. Thus, for the offences covered under this proviso the minimum sentence is not provided by the Legislature. However, what the Legislature has provided is that while granting the benefit of the said proviso the Court must record adequate and special reasons for the same. What are those special and adequate reasons is left to be decided by the Court, which may vary from case to case and fact to fact. The case of the present revisionist is covered under the said proviso but both the courts below had not addressed themselves to the said proviso and did not at all say anything regarding not giving the benefit of it to the revisionist, which in my opinion is a must. The proviso is added in the Statute not only as printed letters but has been incorporated in the Statute book to be applied in appropriate cases.

(Emphasis mine)

Coming to present revision at hand it is to be noted that the revisionist is a petty shopkeeper in a small kasba of a small town Jaunpur. There are no allegations against him for adulteration or misbranding of food materials. There are no allegations against him for selling insect infested food or food which was unfit for human consumption. There are also no allegations that he did not obtain licence intentionally and deliberately. The shop it seems is the only source of livelihood of his family. Moreover the revisionist had been in jail since 6.9.2006 after the dismissed of his appeal and therefore he had already undergone two months of imprisonment. In this view of the matter I am of the opinion the interest of justice will be served by reducing his sentence of imprisonment to the period already undergone with fine of Rs. five hundred to be paid within one month, if not already paid.

Resultantly this revision is partly allowed. The conviction of the revisionist is u/s 7/16 of the P.F.A. Act, is maintained but his sentence is reduced to the period already undergone with fine of Rs. five hundred. He is allowed one month time to deposit the said fine, if not deposited by him already. The revisionist shall be released from jail if he is not wanted in any other case forthwith. In the event of failure of the revisionist to deposit the fine awarded within one month the trial court concerned is directed to realize the same as arrears of land revenue from him with one week thereafter.

The revision is partly allowed with the aforesaid directions.