Chattisgarh High Court
Jeevan Lal Nahata vs State Of Madhya Pradesh Now State Of ... on 22 March, 2011
HIGH COURT OF CHATTISGARH BILASPUR
Criminal Revision No 978 of 1996
Jeevan Lal Nahata
...Petitioners
Versus
State of Madhya Pradesh now State of Chhattisgarh
...Respondents
! Miss Sharmila Singhai counsel for the applicant ^ Mr UKS Chandel Panel Lawyer for the State CORAM: Honble Mr T P Sharma J Dated: 22/03/2011 : Judgement ORAL ORDER (22-3-2011) Revision under Section 397 401 of the Code of Criminal Procedure
1. By this revision under Section 397 read with Section 401 of the CrPC, the applicant has challenged legality & propriety of the judgment dated 7-10-96 passed by the Additional Sessions Judge, Dhamtari in Criminal Appeal No.6/96, affirming the judgment of conviction & order of sentence dated 5-1-96 passed by the Judicial Magistrate First Class, Dhamtari in Criminal Complaint Case No.1943/92, whereby learned Judicial Magistrate First Class has convicted the applicant under Section 7 read with Section 16 (1) (a)
(i) of the Prevention of Food Adulteration Act, 1954 (for short `the Act') and sentenced him to undergo imprisonment for six months & pay fine of Rs.1,000/-, in default of payment of fine to further undergo imprisonment for three months.
2. As per case of the complainant/prosecution, the applicant has sold groundnut oil to the complainant Food Inspector which was found adulterated. After complying the procedure prescribed in the Act, complaint was filed before the competent Court against the applicant herein and also against Ranulal Chaganlal Firm through Devichand. During the course of trial, Ranulal Chaganlal Firm was discharged on the ground that the said Firm was not manufacturer, distributor or dealer of the packed container and the applicant has not satisfied the Court that the co-accused has sold the packed container to him. After providing opportunity of hearing to the parties, learned Judicial Magistrate First Class convicted & sentenced the applicant as aforementioned and while affirming the judgment of conviction & order of sentence, the appellate Court has dismissed the appeal.
3. I have heard learned counsel for the applicant, perused the judgment impugned and record of both the Courts below.
4. Learned counsel for the applicant submits that the applicant is not manufacturer of packed groundnut oil, he has purchased the same from another co-accused who has been discharged by the trial Court. The applicant has successfully discharged his obligation in terms of Section 19 of the Act and the Local Authority has not served notice for analysis of the article from the Director of the Central Food Laboratory and thereby the right of the applicant has been ceased. Learned counsel further submits that the applicant is facing trial since 1982 and presently his age is more than seven years. In these circumstances, again sending the applicant to jail will not serve any purpose and the period already undergone by him along with enhancement of fine will serve the purpose of criminal justice.
5. Learned counsel for the applicant placed reliance upon the order dated 9-5-2008 passed by this Court in Criminal Revision No.156/1997 (Chintaram v. State of Madhya Pradesh) in which this Court has reduced the sentence from three months to the period already undergone and enhanced the fine amount from Rs.500/- to Rs.3,000/-. Learned counsel further placed reliance in the matter of Santosh v. Municipal Corporation and another, (2000) 9 SCC 151, in which on the basis of constituents of oil falling below the standard very marginally, the Supreme Court has enhanced the fine amount to Rs.10,000/- and provided opportunity of filing application for commutation of sentence of imprisonment before the appropriate Government under Section 433 (d) of the CrPC. Learned counsel also placed reliance in the matter of Haripada Das v. State of W.B. and another, (1998) 9 SCC 678, in which the Supreme Court has reduced the sentence to the period already undergone on the ground of financial hardship and mental agony.
6. On the other hand, learned State counsel opposes the revision and submits that the trial Court has rightly convicted & sentenced the applicant as aforementioned and concurrent finding of facts of both the Courts below are not liable to be disturbed without any cogent reason.
7. As per record and evidence, the applicant has sold groundnut oil, he is a shopkeeper and used to sell oil and other eatable items. As per his defence and Ex.P-7, one cash memo, he has purchased the sealed container from one Ranulal Chaganlal Firm - wholesale merchant. During the course of trial, the trial Court has discharged the aforesaid affirm vide order dated 4-10-91 on the ground that the applicant has not produced any material to show that the co-accused was manufacturer of the oil. In order to shift his burden and save from conviction, in case of sealed article manufactured by other manufacturers, the applicant was under obligation to establish the fact that he has purchased the sealed article from manufacturer, distributor or dealer with a written warranty in the prescribed form, as required under Section 19 of the Act, which reads as follows: -
"19. Defences which may or may not be allowed in prosecutions under this Act.-(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer,
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence."
8. In the present case, the applicant has failed to establish the fact that he has purchased the sealed article i.e. groundnut oil from manufacturer, distributor or dealer. Ex.P-7 cash memo receipt reveals that he has tried to show that he has purchased the sealed article from some wholesale merchant. Unless it is proved that the wholesale merchant was manufacturer or distributor or dealer of the aforesaid oil, the applicant was not entitled for benefit under Section 19 of the Act. Therefore, while discharging the co-accused, the trial Court has not committed any illegality.
9. As regards the question of selling adulterated groundnut oil, same is duly established by evidence of K.K. Venugopalam (PW-1), Bharat Lal (PW-2) & Kejuram (PW-3) and the said groundnut oil has been found adulterated vide analysis report Ex.P-9. Paras 6 & 8 of evidence of K.K. Venugopalam (PW-1) reveal that notice for analysis from the Central Food Laboratory under Section 13 (2) of the Act has been sent to the applicant vide Ex.P-14. Defence has not been able to elicit anything in cross-examination of this witness by giving any suggestion that the Local Authority/competent authority has not issued any notice to the applicant. Even otherwise, after his appearance during trial, the applicant has not made any application for analysis of second part of the sample from the Director of the Central Food Laboratory. The applicant has failed to show that serious prejudice has been caused to him by not providing opportunity available under Section 13 (2) of the Act.
10. In the present case, report of analysis does not show that any inferior article has been added, but the constituents does not confer the standard prescribed and, therefore, same is adulterated. Clause A. 17.03 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (for short `the Rules') provides Standards of Quality and constituents of groundnut oil. As per Ex.P-9 - Report of Public Analyst the only variation that has been noticed below the prescribed standard is in Iodine value, other requirements are within the prescribed variation. Required standards in groundnut oil as per Clause A. 17.03 of Appendix B of the Rules and result of the analysis of Groundnut oil as per Report by Public Analyst (Ex.P-9) are as follows: -
Required Result
standards of
analysis
(a) Butyro-refractometer reading 54.0 to 57.1 55.6
at 400C
OR 1.4620-
Refractive Index at 400C 1.4640
(b) Saponification value 188 to 196 193.25
(c) Iodine value 85 to 99 83.3
(d) Unsaponifiable matter (Free Not more 0.56%
fatty than 1.0 per
acids as oleic acid) cent.
(e) Acid value Not more --
than 60
(f) Bellier test (Turbidity 390C to 39.50C
temperature-Acetic acid method.) 410C.
11. Consequently, in absence of any addition of material and slight marginal variation in one of constituents, as held in the case of Santosh (supra), the revision is partly allowed. While maintaining conviction of the applicant under Section 7 read with Section 16 (1) (a) (i) of the Act, sentence imposed upon the applicant is modified to the extent that the applicant shall deposit a sum of Rs.10,000/- in the trial court as fine within thirty days from today, failing which he shall undergo imprisonment for three months. The applicant shall be at liberty to apply before the appropriate Government for commutation of his jail sentence under Section 433 (d) of the CrPC within forty-five days from today and shall intimate in writing to the trial Court by filing a copy of the same. If the applicant files such application before the appropriate Government, sentence imposed upon him by the trial Court shall be suspended till the disposal of the said application. In case if the applicant fails to comply or his sentence is not commuted under Section 433 (d) of the CrPC, the applicant shall surrender himself before the trial Court for serving remaining sentence.
JUDGE