Madhya Pradesh High Court
Ramesh Chandra vs The State Of M.P. Judgement Given By: ... on 7 May, 2014
1 Cr.R.No.788/2000
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
SB: HON. SHRI N.K.GUPTA,J.
CRIMINAL REVISION NO.788/2000
Ramesh Chandra. A.F.R.
Vs.
State of Madhya Pradesh. Judge
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Shri Sunil Pandey, Advocate for the applicant.
Shri G.S.Thakur, Panel Lawyer for the respondent/ State.
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ORDER
(Passed on the 7th day of May, 2014) The applicant was convicted for commission of offence under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954") vide judgment dated 8.2.2000 passed by the Chief Judicial Magistrate, Khandwa in Criminal Case No.127/1991 and sentenced with six months' RI with fine of Rs.1000/-. In Criminal Appeal No.32/2000, the learned First Additional Sessions Judge, Khandwa vide judgment dated 8.6.2000 dismissed the appeal in toto. Being aggrieved with the aforesaid judgments, this criminal revision is preferred by the applicant.
2. The prosecution case, in short, is that on 12.10.1990 the Food Inspector Ramsevak Mishra (PW-1) along with the flying squad went to the Tail Ghani (small scale oil mill) of the applicant, situated at Shivpuri Mohalla 2 Cr.R.No.788/2000 Mundi Tahsil Khandwa. At about 10:15 AM he found that in two drums the applicant had collected 200 kg groundnut oil. The Food Inspector proposed to take the sample of that oil and gave a notice. Thereafter he purchased 375 gms groundnut oil in sum of Rs.12/-. The payment was made. The entire groundnut oil was apportioned in three equal parts and kept the same in clean dried glass bottles and thereafter properly sealed with the help of slips issued by the Local Health Authority. A memo Ex.P-5 was prepared. One sample was sent to the Public Analyst for its analysis and vide report dated 20.11.1990 Ex.P-11 the Public Analyst found that the sample was adulterated. Thereafter the permission of prosecution was obtained from the concerned authority and a complaint was filed before the CJM Khandwa. Thereafter a notice under Section 13 of the Act was also sent to the appellant, which was served upon him in the month of January 1991.
3. The applicant-accused abjured his guilt. He did not take any specific plea in the case, but he has stated that he was extracting the groundnut oil for someone who had supplied the groundnut seeds to the applicant and the oil was collected in a huge drum. The Food Inspector took the sample from such drum. However, no defence evidence was adduced.
4. The learned Chief Judicial Magistrate after considering the prosecution evidence convicted and 3 Cr.R.No.788/2000 sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant has argued the present revision only on two counts. Firstly, the sample was not exactly adulterated. A marginal error was found in the sample according to the report given by the Public Analyst and secondly the sentence of the applicant may be reduced to the period for which he remained in the custody. In support of the second contention, the learned defence counsel has relied upon the order passed by the Single Bench of this Court in the case of "Tulsiram Mehta Vs. State of Madhya Pradesh" (2009(2) MPHT 177). Reliance is also placed on the judgment/order of Hon'ble the Apex Court in the case of "State of Orissa Vs. K. Rajeshwar Rao" (AIR 1992 SC 240) and "Braham Dass Vs. State of Himachal Pradesh" (JT 1988(3) SC 184).
7. After considering the prosecution evidence, it would be apparent that the testimony of the Food Inspector Ramsevak Mishra (PW-1) was acceptable to the effect that he took the sample and after apportionment of the same, he sealed the sample and sent it to the Public Analyst. No enmity between the applicant and the Food Inspector Ramsevak Mishra is evident. Similarly, the applicant had received a notice under Section 13 of the Act (Ex.P-13) and 4 Cr.R.No.788/2000 he did not apply for analysis of the sample from the Central Food Laboratory.
8. So far as the contention of the learned counsel for the applicant is concerned, there was a marginal error in the various results obtained by the Public Analyst in the sample which was examined by him and it may be compared with standard as mentioned in Appendix B of the Prevention of Food Adulteration Rules, 1955 at Article A.17.03. In that specification, it was mentioned that the groundnut oil should be clear, free from rancidity, suspended or other foreign matter,separated water, added colouring or flavouring substances, or mineral oil and it should confirm to the following standards:
STANDARD (Extract of
Ex.P-11)
(a) Butyro-refractometer 54.0 to 57.1 57.3
reading at 41°C
OR
Refractive Index at 1.4620-1.460 __
40°C
(b) Saponification value 188 to 196 185.65
(c) Iodine value 85 to 99 99.76
(d) Unsaponifiable matter Not more than --"*"
1.0 per cent
(e) Acid value Not more than 1.23
6.0
(f) Bellier test (Turbidity 39°C to 41°C 39°C
temperature-Acetic
Acid method)
Test for added
colour/
minerals oil/
rancidity
negative
5 Cr.R.No.788/2000
Test for argemone oil
shall be negative
* Sample is clear, free from separated water and suspended matter.
For comparison on the basis of extract of the report Ex.P-11 is also mentioned in front of the standard given by Article A.17.03, if the scrutiny is made, then butyro-refractometer reading is slightly higher than the standard whereas saponification value is slightly lower than the standard. No result of unsaponifiable matter was given in the report Ex.P-11, whereas remaining readings were within the limit as shown by the standard. As stated by the applicant in the cross examination of the Food Inspector Ramsevak Mishra and in the accused statement, it appears that the applicant was collecting oil in huge drums after extracting it from the fresh groundnuts and the Food Inspector took the sample without churning. If the oil seed was not properly dried, then possibility the thickness of the oil may vary from layer to layer in a drum. When the oil is made available for sale in the market, then it would have been sealed in a tin or small tin or in pouch packet, and therefore it was expected from the applicant to stir properly the entire oil and thereafter to seal and to take oil for sale. Before taking the sample, if the oil was not properly stirred, then such marginal difference in the various readings in comparison with the standard 6 Cr.R.No.788/2000 given by the Prevention of Food Adulteration Rules, may occur.
9. In this context, the order passed by the Single Bench of this Court in the case of "Babu Vs. State of MP"
[2007(1) MPHT 435] may be perused in which it was found that if there was slightly difference in the various readings between the sample and the standard fixed by the P.F. Rules, then the sample cannot be said to be adulterated. Similarly, in this context, the order passed by Hon'ble the Apex Court in the case of "P.S.Sharma Vs. Madanlal Kasturichandji" [(2009)16 SCC276] may be perused in which it is also laid that if there was a marginal difference in the various readings found in the sample in comparison with the standard fixed by the PF Rules, then the sample cannot be said to be adulterated. In the light of the aforesaid order of Hon'ble the Apex Court in the case of P.S. Sharma (supra) if the present matter is considered, then it would be apparent that there was marginal difference in the various readings obtained by the Public Analyst and that difference could be caused due to improper stirring of oil before taking the sample, because without churning the oil, if the sample was taken and thickness of the oil differs from layer to layer, results would vary with marginal differences in the analysis. Hence due to such marginal difference, it cannot be said that the sample was adulterated. The learned Additional Sessions Judge as well 7 Cr.R.No.788/2000 as the Chief Judicial Magistrate has committed an error in convicting the applicant for the aforesaid offence.
10. In the present case, the applicant is going to be acquitted, and therefore there is no need to discuss on the point of the sentence in the present case. However, looking to the arguments advanced by the learned counsel for the applicant, it is necessary to discuss on the point of the sentence in the present case. It is the settled view of Hon'ble the Apex Court that if the minimum sentence is prescribed in the particular statute, then it cannot be reduced by any of the criminal Court including the High Court. In the present case, Section 16 of the P.F. Act provides minimum sentence of six months and it is mentioned in the proviso (ii) that if any person is found guilty for the said offence, then in appropriate cases a sentence of imprisonment may be reduced to the period for a term which shall not be less than three months. Under such circumstances, no such sentence could be given lower than the minimum limit prescribed by the statute. In the case of K.Rajeshwar Rao (supra) Hon'ble the Apex Court has mentioned that in that particular case the offence was committed prior to the amendment of Section 16 of the PF Act when the provision of imposition of minimum sentence was enacted, and therefore in the present case the offence is committed when the amended provision of Section 16 was already in force relating to the minimum sentence, 8 Cr.R.No.788/2000 therefore, the law laid down by Hon'ble the Apex Court in the case of K.Rajeshwar Rao (supra) cannot be applied in the present case. Similarly, in the case of Brahma Dass (supra) while reducing the jail sentence Hon'ble the Apex Court did not mention any provision in doing so, and therefore it would be apparent that such reduction was done by Hon'ble the Apex Court under the constitutional power of the Supreme Court, which cannot be enjoyed by other courts dealing with such circumstances.
11. So far as the order of the Single Bench of this Court in the case of Tulsriram Mehra (supra) is concerned, it appears that the applicant was given an opportunity to move an application for remission of sentence before the competent Govt. and a huge fine was directed to be deposited before the trial Court. However, such type of order cannot be passed in a criminal revision, because the scope of criminal revision is not so wide. It is for the revisionary Court to examine as to whether any illegality or perversity has been committed by the courts below in passing their judgments or not and if the judgments passed by the trial Court as well as the appellate Court are not perverse or illegal, then no interference can be done in such judgments specially where the minimum sentence is prescribed for a particular offence.
12. For reduction of the sentence, the learned counsel for the applicant has placed his reliance on the 9 Cr.R.No.788/2000 order passed by the Single Bench of this Court in the case of Tulsiram (supra), however the Single Bench of this Court has directed about the remission of the sentence and directed to pay some amount before the trial Court. On this subject the order passed by Hon'ble the Apex Court in the case of "K.Pandurangan Vs. S.S.R. Velusamy" (2003 CRI.L.J. 4964) may be perused in which it is held that as per the provisions of Section 432 of Cr.P.C. power for remission of sentence vests with the appropriate Government and not with any Court and such power cannot be exercised by the appellate Court. Similarly, in the case of "Delhi Administration (now NCT of Delhi" Vs. Manoharlal" (2002 CRI.L.J. 4295) may also be referred in which it was laid as under:
"5.........this court has issued directions in some other cases, to deal with the fact situation in those other cases, in the purported exercise of its undoubted inherent and plenary powers to do complete justice, keeping aside even technicalities, the High Court, exercising statutory powers under the Criminal Laws of the land, could not afford to assume to itself the powers or jurisdiction to do the same or similar things. The High Court and all other courts in the country were no doubt ordained to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law, if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately, to the cases before them. Considered in that context, we could not find from the decisions reported in 1997 (9) SCC 101 (supra) and 2000 (9) SCC 151 (supra) any law having 10 Cr.R.No.788/2000 been declared or any principle or question of law having been decided or laid down therein and that in those cases this Court merely proceeded to give certain directions to dispose of the matter in the special circumstances noticed by it and the need felt, in those cases, by this Court to give such a disposal. The same could not have been mechanically, adopted as a general formula to dispose of, as a matter of routine, all cases coming before any or all the courts as an universal and invariable solution in all such future cases also. The High Court had no justifying reason to disturb the conclusion of the first Appellate Court in this regard..........."
It is further laid by Hon'ble the Apex Court that if the Supreme Court has given any direction regarding commutation of the sentence in specific circumstances of the case before it, then the Apex Court could pass an order under its powers of Article 141 of the Constitution of India. The High Court exercising its statutory powers under criminal laws could not assume the powers and jurisdiction by passing such or similar orders.
13. The provision of Section 433 of Cr.P.C. relating to remission for which Hon'ble the Apex Court has mentioned in para 6, which is as under:
"6. That apart, Section 433 of the Code of Criminal Procedure, 1973 also enacts that the appropriate Government may, without the consent of the person sentenced, commute, among other things enumerated therein, a sentence of simple imprisonment for fine. This Court in State of Punjab v.
Kesar Singh (supra) though while considering clause (b) of the very provision has observed as follows" "The mandate of Section 433, Cr.P.C.a enables the 11 Cr.R.No.788/2000 Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the Courts.... That apart, even if the High Court could give such a direction, it could only direct consideration of the case of premature release by the Government and could not have ordered the premature release of the respondent itself. The right to exercise the power under Section 433, Cr.P.C. vests in the Government and has to be exercised by the Government in accordance with the rules and established principles........"
By the dictum laid by Hon'ble the Apex Court in the case of Manoharlal (supra), it would be apparent that scope of criminal revision is limited. If Hon'ble the Apex Court has directed for remission etc. to the accused under its special power of Article 141 of the Constitution of India, then such powers cannot be exercised by the High Court and such orders cannot be passed. In the light of the order passed by Hon'ble the Apex Court in the case of Manoharlal (supra) the orders passed by the High Court in cases like the order passed in the case of Tulsiram (supra) are nothing but per incurium from very beginning and such orders cannot be relied upon as precedents. In the light of the order passed by Hon'ble the Apex Court in the case of Manoharlal (supra) this Court's cannot give advantage to the applicant by such remission etc., and therefore the revisionary Court, who has limited jurisdiction is competent to find the illegality or perversity in the judgments of both the Courts below and can act accordingly. After conclusion of the 12 Cr.R.No.788/2000 revision the convict accused still has a right to move an application under Section 433 of Cr.P.C. before appropriate forum. As per the provisions of Section 16 of the P.F. Act, the minimum sentence cannot be reduced to the period for less than three months. Under such circumstances, the prayer of the applicant in following the order passed by the Single Bench of this Court in the case of Tulsiram (supra) cannot be accepted.
14. Though the applicant cannot be released on remission etc., but in the present case it was found that the readings of the analysis of the sample were marginally away from the standard, and therefore it cannot be said that the sample taken from the applicant was adulterated in the eye of law. Therefore, he cannot be convicted for the offence under Section 7(i) read with Section 16(1)(a)(i) of the Act.
15. On the basis of the aforesaid discussion, the revision filed by the applicant can be accepted. Consequently, it is hereby accepted. The conviction as well as the sentence directed by both the Courts below for the offence under Section 7(i) read with Section 16(1)(a)(i) of the Act is hereby set aside. The applicant is acquitted from all the charges appended against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
13 Cr.R.No.788/2000
16. At present the applicant is on bail, his presence is no more required, and therefore it is directed that the his bail bonds shall stand discharged.
17. A copy of this order be sent to the trial Court as well the appellate Court along with their records for information.
(N.K.Gupta) Judge 07/05/2014 Ansari