Subhas Chandra vs State

H.N. Kapoor, J.—This revision is directed against the order and judgment dated 21--9--1977 of Sessions Judge, Azamgarh in Criminal Appeal No. 40 of 1977 by which he had maintained the conviction recorded by the If Assistant Sessions Judge u/s 7 read with Section 16 of the Prevention of Food Adulteration Act but had reduced the sentence to one year''s R.I. and to pay fine of Rs. 1000/- from two years'' R.I. and to pay fine of Rs. 1000/- in default of payment of fine, the applicant to undergo further R.f. for three months.

The prosecution case is that on 21--10--1975 at about 1 p.m. Shri Dharmendra Yadava, Food Inspector, purchased 600 grams of Besan Ka Laddu and paid its price to the applicant. He divided it into three packets and sealed the same in equal quantity. The sample was taken in the presence of Mahendra Pratap Singh (PW 2) who was an employee of primary Health Centre, Jahanaganj. A notice was given to the applicant. He, however, refused to sign the same. A receipt was also issued to him but he refused to put signature on the receipt. The Food Inspector made a note about this fact and the same was witnessed by Mahendra Pratap Singh (PW 2). The sample was then sent to the Public Analyst who found it to be adulterated as it was colored with an intermitted coaltar dye viz metanil yellow C.I. number 13065 of 1956. The applicant was, therefore, duly prosecuted on the basis of the sanction given by the District Medical Officer of Health. The case was committed to the Court of Sessions and was then tried by the Assistant Sessions Judge.

The applicant denied the prosecution allegations and stated that no sample was taken from him and that he was falsely implicated on account of enmity with the Food Inspector. The prosecution mainly relied on the evidence of PW 1 Dharmendra Yadava, Food Inspector and PW 2 Mahendra Pratap Singh. Dharmendra Yadava had stated that other persons were present there but they refused to give their names or to put their signatures. Both the lower courts believed the prosecution evidence and convicted the applicant and sentenced him as stated above.

Feeling aggrieved, the applicant has filed this revision. One of the grounds urged by the learned Counsel for the applicant is that the trial by the Assistant Sessions Judge was illegal as Section 20 Sub-section (2) of the Prevention of Food Adulteration Act provides as follows:

Section 20 No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

According to him, it is thus clear that the Special Act provides for trial of all the offences under this Act by a Magistrate. It is argued that u/s 26(b) Code of Criminal Procedure ''any offence'' under any other law is to be tried by the Court which is mentioned in the special law and in case if it is not mentioned, then it may be tried by the High Court or any other Court by which the offence is friable. He has argued that the State of U.P. has amended Section 16 by providing penalty of life imprisonment but had not made any corresponding amendment u/s 20 of the Prevention of Food Adulteration Act or u/s 26(b)) Code of Criminal Procedure. Sri Goyal, learned Deputy Government Advocate has referred to the case The State of Uttar Pradesh Vs. Khushi Ram, . It was held in that case that it was possible for a Magistrate to commit any case to court of sessions u/s 347 Code of Criminal Procedure and the trial by the Sessions Judge would not be illegal even if the Magistrate had committed the case in ignorance of his own powers for awarding adequate sentence. I have compared the provisions of new Code of Criminal Procedure with old Code of Criminal Procedure. Section 28 corresponds to Sections 28 and 29 of the old Code of Criminal Procedure. Section 323 corresponds to Section 347 of old Code of Criminal Procedure This authority, therefore, applies on all form to the facts of the present case. Moreover, Section 21 of the Prevention of Food Adulteration Act as substituted by Act 31 of 1976 runs as under:

Notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973 (2 of 1974) it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorized by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.

This clearly provides that a Judicial Magistrate or Metropolitan Magistrate can award maximum sentence of six years even under the provisions of Prevention of Food Adulteration Act. The Uttar Pradesh amendment has provided life imprisonment. Obviously that sentence could not have been awarded by the Magistrate. The Magistrate was, therefore, fully justified in committing the case to the Court of Sessions as U.P. amendment was in force at the time the case was committed.

The learned Counsel for the applicant next argued that there is noncompliance of Rule 22 of the rules as each sample should have contained 300 grams of Besan Ka Laddoo and not 200 grams. No doubt, in the case of Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, , it was held that this rule was mandatory. But this matter was referred to a larger Bench as is clear from the report in 1976 P.F. Cases (SC) page 174. Now that case has been decided as is clear from Northern Indian Patrika dated 12th February, 1978 and it has overruled Rajjab Das''s case.

The learned Counsel for the applicant next argued that no independent witness of the public was taken and as such the conviction cannot be sustained. The Food Inspector has stated that the other witnesses were present but they were not prepared to put their signatures on the memo nor even they were prepared to give their names. That explanation has been accepted by both the lower courts. It was held in the case ofSri Ram Labhiva v. Municipal Corporation, Delhi 1974 ACC 229 that under such circumstances, the trial would not be vitiated when the public witnesses were not willing to co-operate.

Lastly, it was argued that the sentence is severe. It is true that u/s 16(1-A) of the Act as inserted by Act 34 of 1976, the minimum sentence for such an offence is provided as one year''s R.I. and a fine of Rs. 2000/-. The offence was committed on 21--10--1975. It is for that reason that the lower courts had imposed a fine of Rs. 1000/-. It appears that the applicant is a small shop keeper. The report of the public analyst only shows that an intermitted coal tar dye was mixed but it is not clear as to what was the extent of adulteration. It was, therefore, possible that the extent of adulteration was nominal. Under these circumstances, it appears to be proper that the minimum sentence as provided at that time should have been awarded to the applicant.

The revision is partly allowed to this extent that the conviction of the applicant is maintained but his sentence of imprisonment is reduced to six months'' R.I. from one year''s R.I. The sentence of fine will, however, be maintained. In default of payment of fine, he shall undergo further R.I. for three months. The applicant is on bail. He shall be taken into custody forthwith to serve out the sentence as modified by this Court.