Gujarat High Court
Arvindkumar Trikamlal Raval vs Ratilal Hemaji And Anr. on 2 May, 1994
Equivalent citations: (1994)2GLR1177
JUDGMENT S.D. Dave, J.
1. The invocation of the Doctrine of Prospective Overruling, appears to be the answer of the respondent No. 1 the original accused, against the contention being raised by the appellant-original complainant that 'Look to the Law of the present and not to the Law which was holding the field at the time of alleged commission of the offence, the judgment of the trial Court and the judgment of the first appellate Court'.
2. The respondent No. 1 came to be convicted for the alleged commission of the offences punishable under Sections 7 and 16(1)(A) of the Prevention of the Food Adulteration Act, 1954, in C.C. No. 4 of 1983 vide the orders dated 30 July, 1983 pronounced by the learned Metropolitan Magistrate, Court No. 6, Ahmedabad. He came to be sentenced to the S.I. for three months and to a fine of Rs. 500 in default to a further S.I. for one month. This judgment of conviction and sentence came to be challenged by the respondent by filing the Criminal Appeal No. 104 of 1993 which came to be allowed by the learned Additional Sessions Judge, Court No. 13, vide orders dated 8 December, 1983. The appellant who happens to be the original complainant feels aggrieved with the above said orders and hence this Criminal Appeal before this Court.
3. The complainant-Food Inspector had purchased the sample of cow milk from the respondent No. 1 from his shop situated at Madhupura on 16 September, 1982 at about 8-30 a.m. for the purpose of analysis. The report of the Public Analyst was obtained and later on the report of the Central Laboratory was also obtained. These two reports were at variance. Nonetheless, the prosecution was launched and on the appreciation of the evidence on record, the learned trial Magistrate had come to the conclusion that the above said offences were duly established against the respondent No. 1,
4. In the defence, the respondent No. 1 had urged that the complainant-Inspector had not stated that the formalin used was of the strength of 40% and that all what he was saying in this respect was based on the reading of the label. It was also urged by him by way of defence that there was a variance between the two reports - one of the Public Analyst and the other one of the Central Food Laboratory - and that when this variance or difference was not explained, there was a doubt in the case of the prosecution, the benefit of which must necessarily go to the accused. It appears that this twin defence of the respondent No. 1 accused was not recognised by the learned trial Magistrate.
5. When the Criminal Appeal No 104 of 1983 came to be decided by the learned Additional Sessions Judge, Court No. 13, Ahmedabad, these two contentions of the respondent-accused in defence, came to be recognised. The Court below was of the opinion that the defence of the accused in this respect should have been accepted in view of the unreported decision in Criminal Appeal No. 752 of 1967, decided on 17 February, 1969 and in Criminal Appeal No. 36 of 1979, decided on 26 September, 1980 by this Court. Under the orders in Criminal Appeal No. 752 of 1967 this Court had accepted the technical defence, namely, that when the complainant-Inspector was not able to say on the basis of his own knowledge that the strength of formalin was 40%, it could not have been deduced from all what the complainant-Inspector would say in that respect, on the basis of his information or belief. The other unreported decision in Criminal Appeal No. 36 of 1979, decided on 26, September. 1980, has accepted the proposition that when the variance or difference between the two reports, namely, one of the Public Analyst and the other one of the Central Food Laboratory, was not explained, benefit of doubt must go to the accused. These two decisions were taken into consideration by the Court below and ultimately a view was taken by the learned Additional Sessions Judge that the accused was entitled to the acquittal on both the said grounds.
6. Now when the present appeal is being beard in May 1994 the Learned Counsel, Mr. S.N. Shelat, who appears on behalf of the appellant-original complainant, would place reliance upon two Full Bench Decisions of this Court with a view to urge that there has been an altogether change in the legal position and that the view taken by the Court below appears to be erroneous because, those two unreported decisions on which the reliance was placed at the time of the decision of the first appeal do not hold the field. The Learned Counsel for the appellant would place reliance firstly upon a Full Bench pronouncement of this Court in case of B.M. Darji Food-Inspector v. Biharilal Kanulal, 1.984 GLH 394. This Full Bench decision takes a view that when a Food-Inspector speaks of addition of formalin to the sample taken by him, it must be taken to the formalin of the strength contemplated under Rule 20 of the Food Adulteration Rules, 1955, because the term 'formalin' refers to 40% by solution of formaldehyde. Thus, it is clear that this Full Bench pronouncement would overrule all what has been said in Criminal Appeal No. 752 of 1967 which came to be decided on 17 February, 1969. The other decision on which the Learned Counsel for the appellant would place reliance is also a Full Bench pronouncement in case of Prahladbhai Ambalal Patel v. State of Gujarat & Am. 1984 GLH 413. This pronouncement while not recognising the earlier view propounded in Criminal Appeal No. 36 of 1979, decided on 26 September, 1980, would say that the certificate issued by the Public Analyst automatically stands superseded by the certificate to be issued by the Central Food Laboratory and that it would not be open to the accused to plead successfully, that when there is a variance between the two reports the prosecution must explain the variance or otherwise it should fail.Thus, it is clear that the above said two Full Bench pronouncements of this Court have not recognised the view expressed by this Court in two earlier decisions dated 17 February, 1969 and 26 September, 1980.
7. It is indeed true that looking to the above said two Full Bench pronouncements, the accused loses both the grounds of defence on which be was able to secure the acquittal before the first appellate Court. But the matter would not rest here, as indicated by me earlier. The Learned Counsel for the respondent-accused, Mr. J.S. Adhvaryu, would invoke the Doctrine of Prospective Overruling and would urge that the offence, according to the prosecution, was committed on 16 September, 1982 and that the complaint in this respect came to be filed on 21 January, 1983 while the judgment of conviction and sentence came to be pronounced by the trial Court on 30 July, 1983. The Criminal Appeal No. 104 of 1983 came to be decided by the first appellate Court vide orders dated 8 December, 1983. Thus, the Learned Counsel for the respondent No. 1 would urge that even on the date of the alleged commission of the offence and on the date on which the appeal came to be allowed vide orders dated 8th December, 1983 the law laid down by this Court for this State was being reflected in the orders of this Court in Criminal Appeal No. 752 of 1967, decided on 26 September, 1980. The Learned Counsel for the respondent-accused would further urge that the law which was holding the field in this respect, right from year 1967 in one respect and right from the year 1980 in another respect came to be altered only in the month of April, 1984 by the above said two Full Bench decisions. In other words, the contention being raised by the Learned Counsel is that at the material time the law holding the field, was in favour of the respondent No. 1 herein and that the change brought by the said two Full Bench pronouncements, altering the settled legal position should have been given a prospective effect only. In other words, the Learned Counsel want to call in aid, the Principle or the Doctrine of Prospective Overruling.
8. In this respect the Learned Counsel, Mr. Adhvaryu, would firstly place reliance upon the Supreme Court decision in case of State of Kerala v. Alaserry Mohammed 1978 (1) FAC 145. In Rajaldas Gurunamal Pamanani v. State of Maharashtra 1975 FAC 1 the conviction of the appellant was set aside on the ground:
The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the Statute.
A larger Bench was constituted for examining the correctness of the above said view. Ultimately the Supreme Court while examining the question as to whether Rule 22 of the Food Adulteration Rules, 1955 is directory or mandatory had said that the case of Pamanani (supra) on that point was not correctly decided. Thus, it is clear that the earlier view taken by the Supreme Court in case of Pamanani (supra) came to be altered by this larger Bench decision. The law which was holding the field for a pretty long time as a consequence of a Supreme Court pronouncement, came to be set at naught by a decision pronounced by the later larger Bench. Naturally, the question had arisen as to what should be done in respect of so many cases which might have resulted, either in conviction or acquittal during the interregnum. The Supreme Court would take a note of this by saying that some cases would have resulted into acquittal while some cases may not have been decided in this fashion. But looking to the totality, the facts and circumstances, the Supreme Court has felt that the justice would not require that they should interfere with the orders of acquittal in all such cases and send some cases back to the High Court. Thus, it is apparent that the Supreme Court has leaned towards the Doctrine of Prospective Overruling, because, though the earlier view which was holding the field for a pretty long time came to be altered, the Supreme Court thought it fit and proper not to interfere with the orders of acquittal, in those cases which were decided before the alteration of the legal position consequent to the pronouncement of the larger Bench. While coming to this conclusion, the Supreme Court has made a reference to an earlier decision in Food Inspector, Calicut Corporation v. Cherukatill Gopalan & Am. 1972 FAC 9 in which the following view has been taken.
But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour.
9. In Delhi Bottling Private Limited v. Municipal Corporation, Delhi, 1978 (I) FAC 261 the Doctrine of Prospective Overruling has been accepted by the Delhi High Court. In the said case the discharge of the two companies was maintained by the Sessions Court for the reason that a company or a firm could be indicated and punished only for an offence for which the imprisonment was not mandatory and that since the offence with which the Company was charged was compulsorily punishable with imprisonment the Company as such could not be prosecuted. This had happened because of the decision in M/s. Kameshwar Chhote Lal & Ors. v. Union of India and Ors. 1974 FAC 176. Anyhow, this view expressed by the Court in the above said pronouncement came to be overruled by a Full Bench in Municipal Corporation of Delhi v. J.B. Bottling Company Private Limited 1975 (1) FAC 321. In view of the change in law on 27 February, 1976 the Municipal Corporation of Delhi had filed a fresh complaint under Sees. 7/17 read with Section 16 of the Food Adulteration Act, 1954, against the above said two Companies. It was urged that the mere fact that there has been a change in law would not justify the reopening of the case which had been decided on the view of the law which was then prevailing. The learned Metropolitan Magistrate had taken the view that the fresh complaint was not barred by the rule of estoppel or res judicata. Upon the appeal before the Delhi High Court a view has been taken that the Doctrine of Prospective Overruling would apply to the facts of the case. While coming to this conclusion a reference was made to the Supreme Court pronouncement in case of Alaserry Mohammed (supra) and also to the Supreme Court pronouncement in L.C. Golak Nath & Ors. v. State of Punjab wherein it was observed as under:
It is indisputable that a Court can overrule its earlier decision. There cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the Court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated.
10. A similar view came to be taken once again by the Delhi High Court in N.D.M.C. v. Shri Gwumukh Das & Am. 1978 (1) FAC 266. The Delhi High Court has noticed while deciding not to interfere in revision, that the case under revision was decided in the year 1976 at a time when the Supreme Court decision was the law in force in India. In Municipal Corporation, Jndore v. Jagan Nath, 1989 (II) FAC 47, the Madhya Pradesh High Court has also accepted the Doctrine of Prospective Overruling, by saying that if subsequently the view which was holding the field for a pretty long time is changed by the Larger Bench decision, it would not afford justifiable ground for interfering with the acquittal recorded by the Court below. It is on the basis of the acceptance of the Doctrine of Prospective Overruling that the Madhya Pradesh High Court in the facts and circumstances of that case, has said that the view taken by the learned Magistrate, when the earlier view was holding the field, cannot be said to be unreasonable. Lastly, in State of Rajasthan v. Khem Chand 1990 (2) FAC 341 the Rajasthan High Court has accepted the very same principles, placing reliance upon the say of the Supreme Court in case of Alaserry Mohammed (supra).
11. Thus, these pronouncements on which the Learned Counsel for the respondent No. 1-original accused has placed reliance have, in fact accepted the Doctrine of Prospective Overruling. As indicated earlier under the two unreported decisions in Criminal Appeal No. 752 of 1967 decided on 17th February, 1979 and Criminal Appeal No. 36 of 1979 decided on 26th September, 1980 the defence regarding the formalin strength and regarding the variance between the two reports had provided a good ground of defence and acquittal to the respondent-accused. At all the material times, namely, on the date of the alleged commission of the offence, the date of the filing of the complaint, the date of the trial and the date of the decision of the appeal before the appellate Court, the field was being held by the above said two decisions. Everything came to be changed, only in year 1984 when in the month of April the Full Bench pronouncements have taken away the said defences which were available to the original accused. Thus, it is clear that the Court below was acting upon the above said two unreported decisions which undoubtedly were hoding the field till the legal scenerio came to be altered by the above said two Full Bench pronouncements.
12. The Learned Counsel for the appellant-original complainant would place reliance upon the Supreme Court pronouncements in Secretary, Irrigation Department v. G.C. Roy . In that case while examining the question regarding the dispute in respect of interest the pendente life. Supreme Court has overruled its earlier decision in Jena's case and has said that such an interest can be awarded by the arbitrator. This decision has been pressed in service by the Learned Counsel for the appellant-complainant with a view to urge, that under the altered legal position though the interest pendente lite could be awarded by the arbitrator, there is a specific observation saying that this decision of the Supreme Court was only prospective in operation, meaning that it would not entitle any party nor shall it empower any Court to reopen the proceedings which have been finally disposed of. Even otherwise, the Supreme Court has said that the law declared therein shall apply to only pending proceedings. The Learned Counsel for the appellant-complainant urges that whenever the Supreme Court wanted to have the Doctrine of Prospective Overruling to come into operation, it has been said so specifically. There cannot be a quarrel on this aspect of the case, nonetheless the fact remains that all these decisions on which the Learned Counsel for the respondent has placed reliance, there has been an absolute recognition of the Principle of Prospective Overruling. The Supreme Court decision in case of Secretary, Irrigation Department (supra) on which the Learned Counsel for the appellant-complainant places reliance, in my view, would not call for a contrary view.
13. The facts, therefore, would justify the acceptance of the Doctrine or Prospective Overruling. The question as to whether in fact the recognition of the doctrine is called for should be answered with the assistance of the above said pronouncement on which the Learned Counsel for the respondent No. 1 has placed reliance. The compactus of the decisions is in favour of the respondent-accused. It is thus clear that the Doctrine of Prospective Overruling which is canvassed by the Learned Counsel for the respondent-accused requires to be recognised. If this is once done, the consequences are not unknown- As done in case of Food Inspector, Calicut Corporation (supra) the order of acquittal passed by the Court below cannot be set aside, but the respondent No. 1 herein should be held only technically guilty. The appeal shall have to be allowed for this limited purpose only.
14. There should be a recognition that the respondent-accused herein would be technically guilty under the altered legal position but that would not allow me to set aside the orders of acquittal passed in favour of the respondent No. 1 herein by the Court below. The appeal, therefore, would succeed in part only on this technical point under which the respondent No. 1 herein, should be found 'technically guilty' only. There is no question of ordering the respondent No. 1 herein to surrender and to undergo the sentence or pay the fine. Appeal is allowed to the above said extent only saying that the respondent No. 1 herein is found to be technically guilty but without the liability of undergoing sentence or paying the fine.