Gujarat High Court
State Of Gujarat Through Sureshbhai ... vs Hariom Proteins Pvt.Ltd on 9 March, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.A/901/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 901 of 2017
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STATE OF GUJARAT THROUGH SURESHBHAI ABHAYSINGH OAD
Versus
HARIOM PROTEINS PVT.LTD
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Appearance:
MR HARDIK SONI, ADDL.PUBLIC PROSECUTOR for the Appellant.
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/03/2018
ORAL ORDER
1. It is the case of the prosecution that on October 10, 2013, the appellantFood Safety Officer had visited the office of the original accused No.1, who purchased the sample of "Jeevandeep Refined Cotton Seed Oil" from 15 kilogram packed tin, B. No.06, manufactured in the month of September, 2013 and sent the same for analysis for the report of the Public Analyst, who declared the said sample as substandard food. Since it did not comply with the standards and provisions laid down under Regulation No.2.2.1(2) of the Food Safety and Standards (Food Products and Food Additive) Regulations, 2011 and provisions of the Food Page 1 of 11 R/CR.A/901/2017 ORDER Safety and Standard Act, 2006 (hereinafter referred to as 'the Act') and the Rules framed thereunder.
2. A notice thereafter came to be issued and the accused pleaded guilty to the charge, however, they ensured not to commit any such mistake in future.
3. The Adjudicating Officer and Additional District Magistrate, Nadiad in Adjudication Case No.20 of 2015 vide order dated March 31, 2016, has imposed the fine in the following manner :
"Accused No.1Shri Mukeshbhai Dineshchandra Shah (Food Business Operator & Owner) is found guilty for committing breach of Section 3(1)(zx), 26(1), 26(2)(ii) and 27(1) of the Food Safety and Standards Act which is punishable under Sections 50 and 51 of the Food Safety and Standards Act and thereby imposed a fine of Rs.50,000/. Accused No.2Shri Hariom Proteinds Pvt Ltd., (Manufacturing Firm), is found guilty for committing breach of Section 3(1)(zx), 26(1), 26(2)(ii) and 27(1) of the Page 2 of 11 R/CR.A/901/2017 ORDER Food Safety and Standards Act which is punishable under Sections 50 and 51 of the Food Safety and Standards Act and thereby imposed a fine of Rs.1,50,000/.
Accused No.3Shri Dineshbhai Omprakash Malhotra (Director of Manufacturing Firm) is found guilty for committing breach of Section 3(1)(zx), 26(1), 26(2)(ii) and 27(1) of the Food Safety and Standards Act which is punishable under Sections 50 and 51 of the Food Safety and Standards Act and thereby imposed a fine of Rs.50,000/. Accused No.4Shri Ommprakash Kishanchand Malhotra (Director of Manufacturing Firm) is found guilty for committing breach of Section 3(1)(zx), 26(1), 26(2)(ii) and 27(1) of the Food Safety and Standards Act which is punishable under Sections 50 and 51 of the Food Safety and Standards Act and thereby imposed a fine of Rs.50,000/. Accused No.5Shri Sangitaben Dineshbhai Malhotra (Director of Manufacturing Firm) is found guilty for committing breach of Section 3(1)(zx), 26(1), 26(2)(ii) and 27(1) of the Food Safety and Standards Act which is punishable under Sections 50 and 51 of the Food Safety and Standards Act and thereby imposed a fine of Rs.50,000/." Page 3 of 11
R/CR.A/901/2017 ORDER
4. This authority also directed the deposit of amount within a period of seven days and if default is made, then interest at the rate of 12% per annum be paid and further, the charge will also be created on the property of the accused. Aggrieved accused i.e. respondent Nos.2 to 5 preferred an appeal bearing No.79 of 2016 before the Food Safety Appellate Tribunal, Gujarat State, Gandhinagar, which vide order dated March 24, 2017, confirmed the order of conviction and fine in respect of the original accused No.2Hariom Proteins Pvt. Ltd. While confirming such order of conviction and fine, it reduced the amount of fine from Rs.50,000/ to Rs.20,000/ qua the original accused Nos.3 to 5.
5. Aggrieved by the said order dated March 24, 2017 of the Tribunal, the appellantState is before this Court seeking enhancement of the fine in respect of the accused Nos.2 to 5 on the ground that they have already been convicted by the trial Court and the trial Court had awarded the Page 4 of 11 R/CR.A/901/2017 ORDER reasonable amount of fine, which could not have been interfered with by the Tribunal.
6. This Court has heard Shri Hardik Soni, learned Additional Public Prosecutor appearing for the appellantState, who has taken this Court through the judgment and order as well as the record of the case. He has also fervently urged that the minimum punishment prescribed under the said Act is Rs.2 lakh under section 50 and upto Rs.5 lakh under section 51 of the very Act. He has further urged that the accused No.1 did not challenge the judgment and order rendered by the Adjudicating Authority and, therefore, the order qua the accused No.1 of the Adjudicating Authority has become final and, therefore also, the Tribunal ought not to have interfered with the same.
7. A challenge is also made qua the order of the Appellate Authority in respect of the respondent No.2, since the minimum punishment prescribed for fine of Rs.5 lakh and Rs.2 lakh, has not been awarded by the Adjudicating Authority. He Page 5 of 11 R/CR.A/901/2017 ORDER has further urged that so far as the accused Nos.3 to 5 are concerned, the reduction in punishment is substantial and the same ought not to have been reduced by the Appellate Tribunal. He has fairly agreed that these provisions of the Act provides for maximum punishment and do not provide for minimum punishment. The provisions provide for penalty for selling food not of the nature or substance or quality demanded. Section 51 of the Act provides for penalty for selling, storing, distributing or importing substandard food for human consumption.
8. Having heard the learned Additional Public Prosecutor and on perusal of the record, this Court notices that so far as the respondent No.2 is concerned, there was no challenge made to the order of the Appellate Tribunal for any breach of provisions of sections 3(1)(zx), sections 26(1), 26(2)(II) and 27(1) of the Food Safety and Standards Act. The penalty imposed qua the said respondent No.2 had been accepted by the Page 6 of 11 R/CR.A/901/2017 ORDER State and, therefore, the said challenge before this Court would not be tenable.
9. Insofar as accused Nos.3 to 5 are concerned, this Court notices that the Appellate Tribunal has upheld the judgment and order of conviction qua these respondents and thus, has not made any dent in the findings of the Adjudicating Authority.
10. Some of the parameters necessary for deciding the penalty are provided in section 49, which read as under :
"49. General provisions relating to penalty : While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer or the Tribunal, as the case may be, shall have due regard to the following :
(a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention,
(b) the amount of loss caused or likely to cause to any person as a result of the contravention, Page 7 of 11 R/CR.A/901/2017 ORDER
(c) the repetitive nature of the contravention,
(d) whether the contravention is is without his knowledge, and
(e) any other relevant factor."
11. At this stage, a reference to the decision of the Apex Court in the case of State of Punjab v. Prem Sagar and others1, would be necessary, whereby the Apex Court has held that there is no standardised guideline so far as quantum of punishment is concerned, particularly when there is no minimum or maximum fine provided. It would be apt to reproduce the relevant observations and findings of the said decision, which read as under "6. Whether the court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstance of each case.
1 AIR 2008 SC (Supp) 261 Page 8 of 11 R/CR.A/901/2017 ORDER While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.
7. There are certain offences which touch our social fabric. We must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept out of the purview thereof. While imposing sentences, the said principles should be borne in mind.
8. A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice delivery system. The Parliament, however, in providing for a hearing on sentence, as would appear from Subsection (2) of Section 235, Subsection (2) of Section 248, Section 325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take Page 9 of 11 R/CR.A/901/2017 ORDER into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.
Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant."
12. So far as the Food Safety and Standards Act is concerned, section 49 of the said Act itself lays down the general provisions and also provides for giving due regard to certain parameters and this Court notices that in the case of original accused Nos.3 to 5, who were Directors of the respondent No.3 Firm, in absence of any material to indicate that they had gained any unfair advantage and in absence of any quantification, the Appellate Tribunal rightly deemed it fit to reduce the fine from Rs.50,000/ to Rs.20,000/. Thus, this Court sees no reason to interfere with the impugned judgment and order and, hence, the same deserves to be confirmed by this Court.
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R/CR.A/901/2017 ORDER
13. For the foregoing reasons, the present appeal fails and the same is, accordingly, dismissed. The impugned order passed by the Appellate Tribunal is confirmed.
(MS SONIA GOKANI, J) Aakar Page 11 of 11