Gujarat High Court
State Of Gujarat vs Harishkumar S. Vyas And Ors. on 6 October, 1986
Equivalent citations: (1987)2GLR931
JUDGMENT J.P. Desai, J.
1. The respondents in these three appeals were tried before the different learned Judicial Magistrates for an offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as 'the Act') and sentenced to imprisonment till the rising of the Court and to pay fine, on the respective respondents pleading guilty to the charge framed against them. Being dissatisfied with the sentence imposed by the learned Judicial Magistrates in all these eases, the State of Gujarat has filed these appeals for enhancement of sentence under Section 377 of the Code of Criminal Procedure, 1973. The respondents have appeared in response to the notices served upon them.
2. As these three appeals can be disposed of by a common order, the contention in all these cases being that the accused pleaded guiltyon account of plea-hargaining, these appeals are heard together and they are being disposed of by this common judgment.
3. Having heard the learned Addl. Public Prosecutor Mr. D.K. Trivedi for the State and the learned Advocates for the respondents-accused, I am inclined to set aside the order of conviction and sentence recorded by the learned Judicial Magistrates in all these cases and remand the cases to the learned Judicial Magistrates for trial according to law for the reasons which follow.
4. Section 16 of the Act prescribes punishment. It prescribes punishment of rigorous imprisonment which may extend to three years but shall not be less than six months and fine which shall not be less than Rs. 1,000/-. The first proviso gives discretion to award lesser punishment when the offence falls within certain provisions of the Act Rules enumerated in the said proviso, but there also the discretion is restricted because it provides that the sentence may extend to two years and fine not less than Rs. 500/- but the sentence should not be less than three months. It is only the second proviso to Section 16 which gives discretion to the Court to award lesser sentence than three months and also impose fine less than Rs. 500/- when the case falls under the provisions enumerated therein. It is clear on going through the judgments delivered in all these cases that the second proviso cannot be pressed into service in the present cases. In view of this, minimum sentence of rigorous imprisonment for six months and fine of Rs. 1,000/- is required to be imposed unless the case can be brought within the first proviso. Even if the case can be brought within the first proviso to Section 16, then also the sentence of imprisonment for three months and fine of Rs. 500/- has to be imposed. In Criminal Appeal No. 352 of 1986, the substantive sentence of imprisonment is only till the rising of the Court and fine imposed is Rs. 1,000/- In Criminal Appeal No. 357 of 1986, the sentence imposed is till the rising of the Court and fine imposed is Rs. 1,200/-. In Criminal Appeal No. 452 of 1986 the sentence imposed is imprisonment till the rising of the Court and fine imposed is Rs. 300/-. It is thus clear, on the face of it, that even if these cases or any of them fall under the first proviso to Section 16 of the Act, the sentence imposed by the learned Judicial Magistrates is not in accordance with law. The minimum sentence required to be imposed is not imposed in these cases, even if the first proviso can be pressed into service. It appears from the reasoning given by the learned Judicial Magistrates in all these cases that the provisions of Section 16 relating to punishment to be imposed were not present in their mind. When the minimum sentence which is required to be imposed according to law is not imposed, then prima facie it leads me to infer that these were cases of plea-bargaining. It may be that the learned Judicial Magistrates themselves may not have given any such assurance to the accused that he will be let off leniently as has been done in all these cases. But there may be an inducement from some other corner to plead guilty suggesting to the accused that he will be let off only with a fine and will not be sent to jail. In Criminal Appeal No. 452 of 1986 the respondent-accused has in fact filed an affidavit stating therein that he was induced by the Food Inspector to plead guilty. In Criminal Appeal No. 357 of 1986 also the accused has filed an affidavit stating therein that he was given to understand that if he pleaded guilty, then be will not be sent to jail. So far as Criminal Appeal No. 352 of 1986 is concerned, no such affidavit has been filed by the respondent-accused, but the fact that the accused have been let off with a fine only shows that it was very probably a case of plea-bargaining. The learned Judicial Magistrate has observed in the judgment that the pleas was without any fear or without any pressure and was voluntary and, therefore, it was accepted. It is not possible to ascertain on what material the learned Judicial Magistrate came to such a conclusion. Any way, all these three cases appear to be the result of plea-bargaining and, therefore, the conviction and sentence recorded by the learned Judicial Magistrate is required to be set aside and the matters are required to be remanded to the trial Court for fresh trial according to law.
5. My attention has been drawn to two decisions of the Supreme Court with regard to plea-bargaining. The first is reported in Kasambhai v. Stale of Gujarat and the other is reported in Thippeswamy v. State of Karnataka . In the first case, the accused was convicted of an offence punishable under Section 16 of the Act and light sentence was awarded. The High Court enhanced the sentence, but the Supreme Court allowed the appeal and directed retrial. The Supreme Court disapproved the practice of plea-bargaining and letting of an accused with a lenient sentence. In the second case, the conviction was for an offence punishable under Section 304-A I.P.C. and there also the Supreme Court took the same view.
6. As a result of the aforesaid discussion, all these appeals are allowed, the orders of conviction and sentence recorded by the learned Judicial Magistrates are hereby set aside and the cases are remanded back to the concerned Judicial Magistrate for trial according to law. The learned Judicial Magistrates shall start the trial afresh from the stage of recording the plea of the accused. They should explain the allegations made against the accused and then record their plea and then proceed further in accordance with law.
7. Before parting with this judgment, it pains us to observe that even though this Court has on many occasions disapproved the practice prevailing in the trial Courts to let off the accused convicted under the provisions of the Prevention of Food Adulteration Act with light sentences, the Courts below have continued to let off the accused with light sentence simply because they pleaded guilty. They have even not cared to consider the question whether minimum sentence is required to be imposed or whether they have got any discretion to impose lesser sentence. These three cases clearly show non-application of mind on the part of the concerned learned Judicial Magistrates of the provisions of Section 16, so far as the punishment portion is concerned. It is high time that the Courts below properly apply their mind and award appropriate punishment in accordance with law and do not hasten to dispose of cases by awarding light sentences which are not even according to law, as in the present cases. When a minimum sentence is required to be imposed according to law, the concerned Magistrate should first apply his or her mind to the provisions of law and then give an indication to the accused that even if he or she pleads guilty, the minimum sentence which is required by law to be imposed shall have to be imposed and that should be made clear to the accused while recording his plea so that the accused knows before pleading guilty, that he or she will be imposed not less than the particular minimum sentence prescribed by law Unless the Magistrates adopt such a course the accused are bound to come up with the defence that it was a case of plea-bargaining and on the face of it, this Court will be inclined to accept that contention in such circumstances. I hope that the learned Judicial Magistrates will carefully go through the above two judgments given by the Supreme Court and also go through the judgments of this Court delivered recently and reported in Gujarat Law Reporter and Gujarat Law Herald, so far as the punishment to be awarded under the Prevention of Food Adulteration Act is concerned and also go through the relevant provisions of the Act carefully so as to understand as to what is the minimum sentence required to be imposed so that such cases do not occur in future.
With the above observations, these three appeals stand disposed of as above.
ORDER Heard Mr. A.D. Padiwal and Mr. D.K. Trivedi, Addl. Public Prosecutor.
Mr. Padiwal states that as the conviction and sentence are being set aside, the fine, if paid by the accused, should be ordered to be refunded. The request seems to be quite reasonable. In view of this, it is directed that if fine is paid by the respondents-accused, the same should be refunded to them.