In the case of Shyam Sunder Vs. State of Rajasthan & Anr.
[1996(3) W.L.C. 722], a similar question had arisen and the
question was referred to a Larger Bench for answer. The Larger
Bench opined that in post conviction cases, the trial of a case for
offence under Section 16(1) read with Section 7 of the Act by
adopting the procedure of a warrant case does not stand vitiated
unless prejudice caused to the accused is shown. Since no
prejudice occasioned to the petitioner by trying the case of the
petitioner as per procedure in a warrant trial court has been
shown, the argument advanced by Mr. Jain has no substance and
accordingly rejected.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
Ishwar Singh Vs. The State of Raj.
S.B. Criminal Revision Petition No.311 of 1995
under Section 397 read with Section 401 Cr.P.C.
against the judgment dated 29.09.1995 passed
by the learned Special Judge cum Additional
Sessions Judge, Pratapgarh in Criminal Appeal
No.3/1995 (1/1992) whereby he upheld the
judgment dated 10.12.1991 passed by the
learned Additional Chief Judicial Magistrate,
Pratapgarh in Criminal Case No.35/1984 whereby
he convicted the petitioner for the offence
under Section 7/16 of the Food Adulteration Act.
<><><>
Date of Order ::: 31.01.2014
Present
Hon'ble Mr. Justice Banwari Lal Sharma
The petitioner has preferred this revision petition against the
Judgement dated 29.09.1995 passed by the learned Special Judge
cum Additional Sessions Judge, Pratapgarh in Criminal Appeal
No.3/1995 (1/1992) whereby he upheld the judgment dated
10.12.1991 passed by the learned Additional Chief Judicial
Magistrate, Pratapgarh in Criminal Case No.35/1984 whereby he
convicted the petitioner for the offence under Section 7/16 of the
Food Adulteration Act and has sentenced him to undergo three
months' rigorous imprisonment and a fine of Rs.1,000/-, in default
whereof to further undergo six months' simple imprisonment.{2}
The brief facts of the case are that the Food Inspector
submitted a complaint before the learned trial court to the effect
that on 28.09.1983 at about 06.30 a.m., he took sample of milk for
examination and on chemical examination from the analyst, the
milk was found adulterated and thus the petitioner-accused has
committed the offence under Section 7/16 of the Food
Adulteration Act.
The learned trial court, thereafter, framed charge under
Section 7/16 of the Food Adulteration Act against the petitioner to
which petitioner denied and claimed for trial. The prosecution
examined as many as four witnesses and the petitioner-accused
was examined under Section 313 Cr.P.C. wherein he stated the
prosecution case as false. He did not lead any evidence in defence.
The learned trial court, after hearing the learned Assistant
Public Prosecutor and the learned counsel for the petitioneraccused,
convicted and sentenced the petitioner as aforesaid vide
order dated 10.12.1991. Aggrieved by this Judgement of conviction
and order of sentence, the petitioner-accused preferred appeal
before the learned appellate court which was dismissed and the
judgment of conviction and order of sentence passed by the
learned trial court was affirmed. Hence, this revision petition.
Heard Mr. Vineet Jain, learned counsel appearing for the
petitioner and Mr. K.K. Rawal, learned Public Prosecutor.
Mr. Vineet Jain, learned counsel appearing on behalf of
petitioner-accused urged that since the case against the petitioner
was not tried as a summary trial case, as required by Section 16A
of the Act and was tried as a warrant trial case, the trial stood
vitiated. However, no prejudice caused to the petitioner by the
trial adopted in his case was pointed out. {3}
In the case of Shyam Sunder Vs. State of Rajasthan & Anr.
[1996(3) W.L.C. 722], a similar question had arisen and the
question was referred to a Larger Bench for answer. The Larger
Bench opined that in post conviction cases, the trial of a case for
offence under Section 16(1) read with Section 7 of the Act by
adopting the procedure of a warrant case does not stand vitiated
unless prejudice caused to the accused is shown. Since no
prejudice occasioned to the petitioner by trying the case of the
petitioner as per procedure in a warrant trial court has been
shown, the argument advanced by Mr. Jain has no substance and
accordingly rejected.
It was next urged by Mr. Jain that before granting the
sanction for prosecution of the petitioner, the sanctioning
authority did not apply its mind and, therefore, the very basis for
the prosecution of the petitioner was bad. However, no specific
defect showing that the sanction (Ex.P/8) was not appropriate was
pointed out.
In the case of Nand Kishore Vs. State of Rajasthan (SB
Criminal Revision Petition No.24/1992), a Coordinate Bench of this
court examined this issue and on the basis of decision of the
Hon'ble Supreme Court in the case of Dhyan Singh Vs. Municipal
Board, Saharanpur [1973 F.A.C. 404], took the view that what is
required for initiation of prosecution for offence under the Act is,
“written consent” of the authority concerned and not “sanction”
within the meaning of the term used in other enactments like
Prevention of Corruption Act, the Code of Criminal Procedure,
1973 and since “written consent” may be given even long before a
particular offence has taken place to institute a particular case or
class of cases, no question of applying one's mind to the facts of{4}
the case before the institution of prosecution in that case arise. In
view of such opinion held by the Coordinate Bench of this point,
there is no merit in this argument also, which is rejected.
It was then urged by Mr. Jain that the report of the public
analyst was not sent to the petitioner, as required by Section 13(2)
of the Act, hence, prejudice was occasioned to him.
From the perusal of record of the trial court, it reveals that
on 03.02.1984, petitioner-accused himself submitted an
application before the learned trial court stating therein that he
received analyst's report on 28.01.1984 and feeling dissatisfied by
the report, urged before the trial court that the sample of milk be
sent to Central Food Laboratory. Therefore, when petitioneraccused
himself admitted that he received the analyst's report and
availed the opportunity of examination of second sample from
Central Food Laboratory, this argument too is rejected.
It was urged by Mr. Jain that panchnama was prepared of
mixed milk, therefore, there will be different standard.
I have considered this argument too. According to the report
of the Public Analyst, the milk fat was found to be 3.20% and milk
solids not fat were found to be 5.60%. Cane sugar and starch were
found as nil. As such, sample was found adulterated as it contained
about 34% added water and as per the report of Central Food
Laboratory also, milk fat was found to be as 3.60% and milk solids
not fat was found 5.0% and test for presence of starch was found
negative and as per the report of Central Food Laboratory (Ex.P/9)
the sample did not confer to the standard of mixed milk laid down
in the Table Item No.A.11.01.11 of Prevention of Food Adulteration
Rules, 1955 (for short, 'the Rules of 1955'). As such, in both the
reports, the mixed milk was found adulterated from standard{5}
specifications of the mixed milk. Therefore, this argument is also
not acceptable.
According to the Table Item A.11.01.11 of Rules of 1955, it
would be clear that for mixed milk, percentage of fat and solid not
fat should be 4.5 and 8.5 respectively for all over India and,
therefore, the sample in question was found adulterated. Under
such circumstances, the learned trial court as well as learned
appellate court have rightly found that the petitioner sold
adulterated milk and, therefore, both the courts below have
rightly convicted the petitioner-accused for the aforesaid offences.
Lastly, learned counsel Mr. Jain submitted that the matter
relates to the complaint filed in the year 1984 and the trial court
vide its impugned judgment dated 09.12.1991, has awarded
sentence of three months' rigorous imprisonment with a fine of
Rs.1,000/- to the accused-petitioner and he is facing trial since
1984 and had remained in custody for about 22 days. He is
suffering from agony of protracted trial since last 30 years.
Presently, he is about 60 years of age during which the petitioner
has already suffered a lot. Situated thus, Mr. Jain submitted that
in the facts and circumstances of the present case, this court may
commute the sentence of the accused-petitioner to one of fine
only.
In support of the above submission, Mr. Jain has relied upon
the decision of the Apex Court in N. Sukumaran Vs. Food Inspector,
Mavelikara [(1997) 9 SCC 101].
The above submission of the learned counsel for the
petitioner was not refuted by the learned Public Prosecutor. The
sample was seized in the year 1983 and more than 30 years have
passed in between. The petitioner was convicted after full trial.{6}
His appeal failed. The petition before this court has been pending
since 1995. The petitioner is now about 60 years of age, therefore,
now no useful purpose will be served in sending him to jail at this
distant point of time being on bail for so many years.
I, therefore, commute the sentence of imprisonment to fine
of Rs.15,000/-. The petitioner would, within two months from
today, deposit a sum of Rs.16,000/- (Rs.15,000/- + Rs.1,000/-) in
all in the court of the learned Chief Judicial Magistrate, Pratapgarh
and intimate to the appropriate Government that such fine has
been deposited. On deposit of such fine, the State Government
may formalise the matter by passing appropriate orders under
clause (d) of Section 433 of the Code of Criminal Procedure. It is
made clear that in case the petitioner fails to pay the fine as
ordered, he would serve the sentence as imposed by the learned
trial court and confirmed in appeal.
With the aforesaid observations, the present revision petition
stands disposed of.
The record of the courts below be sent back with copy of
the order forthwith for compliance.
[Banwari Lal Sharma],J.
/skm/ramesh/
Print Page
[1996(3) W.L.C. 722], a similar question had arisen and the
question was referred to a Larger Bench for answer. The Larger
Bench opined that in post conviction cases, the trial of a case for
offence under Section 16(1) read with Section 7 of the Act by
adopting the procedure of a warrant case does not stand vitiated
unless prejudice caused to the accused is shown. Since no
prejudice occasioned to the petitioner by trying the case of the
petitioner as per procedure in a warrant trial court has been
shown, the argument advanced by Mr. Jain has no substance and
accordingly rejected.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
Ishwar Singh Vs. The State of Raj.
S.B. Criminal Revision Petition No.311 of 1995
under Section 397 read with Section 401 Cr.P.C.
against the judgment dated 29.09.1995 passed
by the learned Special Judge cum Additional
Sessions Judge, Pratapgarh in Criminal Appeal
No.3/1995 (1/1992) whereby he upheld the
judgment dated 10.12.1991 passed by the
learned Additional Chief Judicial Magistrate,
Pratapgarh in Criminal Case No.35/1984 whereby
he convicted the petitioner for the offence
under Section 7/16 of the Food Adulteration Act.
<><><>
Date of Order ::: 31.01.2014
Present
Hon'ble Mr. Justice Banwari Lal Sharma
The petitioner has preferred this revision petition against the
Judgement dated 29.09.1995 passed by the learned Special Judge
cum Additional Sessions Judge, Pratapgarh in Criminal Appeal
No.3/1995 (1/1992) whereby he upheld the judgment dated
10.12.1991 passed by the learned Additional Chief Judicial
Magistrate, Pratapgarh in Criminal Case No.35/1984 whereby he
convicted the petitioner for the offence under Section 7/16 of the
Food Adulteration Act and has sentenced him to undergo three
months' rigorous imprisonment and a fine of Rs.1,000/-, in default
whereof to further undergo six months' simple imprisonment.{2}
The brief facts of the case are that the Food Inspector
submitted a complaint before the learned trial court to the effect
that on 28.09.1983 at about 06.30 a.m., he took sample of milk for
examination and on chemical examination from the analyst, the
milk was found adulterated and thus the petitioner-accused has
committed the offence under Section 7/16 of the Food
Adulteration Act.
The learned trial court, thereafter, framed charge under
Section 7/16 of the Food Adulteration Act against the petitioner to
which petitioner denied and claimed for trial. The prosecution
examined as many as four witnesses and the petitioner-accused
was examined under Section 313 Cr.P.C. wherein he stated the
prosecution case as false. He did not lead any evidence in defence.
The learned trial court, after hearing the learned Assistant
Public Prosecutor and the learned counsel for the petitioneraccused,
convicted and sentenced the petitioner as aforesaid vide
order dated 10.12.1991. Aggrieved by this Judgement of conviction
and order of sentence, the petitioner-accused preferred appeal
before the learned appellate court which was dismissed and the
judgment of conviction and order of sentence passed by the
learned trial court was affirmed. Hence, this revision petition.
Heard Mr. Vineet Jain, learned counsel appearing for the
petitioner and Mr. K.K. Rawal, learned Public Prosecutor.
Mr. Vineet Jain, learned counsel appearing on behalf of
petitioner-accused urged that since the case against the petitioner
was not tried as a summary trial case, as required by Section 16A
of the Act and was tried as a warrant trial case, the trial stood
vitiated. However, no prejudice caused to the petitioner by the
trial adopted in his case was pointed out. {3}
In the case of Shyam Sunder Vs. State of Rajasthan & Anr.
[1996(3) W.L.C. 722], a similar question had arisen and the
question was referred to a Larger Bench for answer. The Larger
Bench opined that in post conviction cases, the trial of a case for
offence under Section 16(1) read with Section 7 of the Act by
adopting the procedure of a warrant case does not stand vitiated
unless prejudice caused to the accused is shown. Since no
prejudice occasioned to the petitioner by trying the case of the
petitioner as per procedure in a warrant trial court has been
shown, the argument advanced by Mr. Jain has no substance and
accordingly rejected.
It was next urged by Mr. Jain that before granting the
sanction for prosecution of the petitioner, the sanctioning
authority did not apply its mind and, therefore, the very basis for
the prosecution of the petitioner was bad. However, no specific
defect showing that the sanction (Ex.P/8) was not appropriate was
pointed out.
In the case of Nand Kishore Vs. State of Rajasthan (SB
Criminal Revision Petition No.24/1992), a Coordinate Bench of this
court examined this issue and on the basis of decision of the
Hon'ble Supreme Court in the case of Dhyan Singh Vs. Municipal
Board, Saharanpur [1973 F.A.C. 404], took the view that what is
required for initiation of prosecution for offence under the Act is,
“written consent” of the authority concerned and not “sanction”
within the meaning of the term used in other enactments like
Prevention of Corruption Act, the Code of Criminal Procedure,
1973 and since “written consent” may be given even long before a
particular offence has taken place to institute a particular case or
class of cases, no question of applying one's mind to the facts of{4}
the case before the institution of prosecution in that case arise. In
view of such opinion held by the Coordinate Bench of this point,
there is no merit in this argument also, which is rejected.
It was then urged by Mr. Jain that the report of the public
analyst was not sent to the petitioner, as required by Section 13(2)
of the Act, hence, prejudice was occasioned to him.
From the perusal of record of the trial court, it reveals that
on 03.02.1984, petitioner-accused himself submitted an
application before the learned trial court stating therein that he
received analyst's report on 28.01.1984 and feeling dissatisfied by
the report, urged before the trial court that the sample of milk be
sent to Central Food Laboratory. Therefore, when petitioneraccused
himself admitted that he received the analyst's report and
availed the opportunity of examination of second sample from
Central Food Laboratory, this argument too is rejected.
It was urged by Mr. Jain that panchnama was prepared of
mixed milk, therefore, there will be different standard.
I have considered this argument too. According to the report
of the Public Analyst, the milk fat was found to be 3.20% and milk
solids not fat were found to be 5.60%. Cane sugar and starch were
found as nil. As such, sample was found adulterated as it contained
about 34% added water and as per the report of Central Food
Laboratory also, milk fat was found to be as 3.60% and milk solids
not fat was found 5.0% and test for presence of starch was found
negative and as per the report of Central Food Laboratory (Ex.P/9)
the sample did not confer to the standard of mixed milk laid down
in the Table Item No.A.11.01.11 of Prevention of Food Adulteration
Rules, 1955 (for short, 'the Rules of 1955'). As such, in both the
reports, the mixed milk was found adulterated from standard{5}
specifications of the mixed milk. Therefore, this argument is also
not acceptable.
According to the Table Item A.11.01.11 of Rules of 1955, it
would be clear that for mixed milk, percentage of fat and solid not
fat should be 4.5 and 8.5 respectively for all over India and,
therefore, the sample in question was found adulterated. Under
such circumstances, the learned trial court as well as learned
appellate court have rightly found that the petitioner sold
adulterated milk and, therefore, both the courts below have
rightly convicted the petitioner-accused for the aforesaid offences.
Lastly, learned counsel Mr. Jain submitted that the matter
relates to the complaint filed in the year 1984 and the trial court
vide its impugned judgment dated 09.12.1991, has awarded
sentence of three months' rigorous imprisonment with a fine of
Rs.1,000/- to the accused-petitioner and he is facing trial since
1984 and had remained in custody for about 22 days. He is
suffering from agony of protracted trial since last 30 years.
Presently, he is about 60 years of age during which the petitioner
has already suffered a lot. Situated thus, Mr. Jain submitted that
in the facts and circumstances of the present case, this court may
commute the sentence of the accused-petitioner to one of fine
only.
In support of the above submission, Mr. Jain has relied upon
the decision of the Apex Court in N. Sukumaran Vs. Food Inspector,
Mavelikara [(1997) 9 SCC 101].
The above submission of the learned counsel for the
petitioner was not refuted by the learned Public Prosecutor. The
sample was seized in the year 1983 and more than 30 years have
passed in between. The petitioner was convicted after full trial.{6}
His appeal failed. The petition before this court has been pending
since 1995. The petitioner is now about 60 years of age, therefore,
now no useful purpose will be served in sending him to jail at this
distant point of time being on bail for so many years.
I, therefore, commute the sentence of imprisonment to fine
of Rs.15,000/-. The petitioner would, within two months from
today, deposit a sum of Rs.16,000/- (Rs.15,000/- + Rs.1,000/-) in
all in the court of the learned Chief Judicial Magistrate, Pratapgarh
and intimate to the appropriate Government that such fine has
been deposited. On deposit of such fine, the State Government
may formalise the matter by passing appropriate orders under
clause (d) of Section 433 of the Code of Criminal Procedure. It is
made clear that in case the petitioner fails to pay the fine as
ordered, he would serve the sentence as imposed by the learned
trial court and confirmed in appeal.
With the aforesaid observations, the present revision petition
stands disposed of.
The record of the courts below be sent back with copy of
the order forthwith for compliance.
[Banwari Lal Sharma],J.
/skm/ramesh/
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