Partly allowed

Shah Nawajuddin v. State of U.P.

Allahabad HC24 Jan 2019CRLR/110/1990

Case brief

AI extract

What is this about?

In a criminal revision against a conviction for food adulteration, the High Court addressed arguments for sentence commutation by the appropriate government. Ruling that the court lacks jurisdiction to directly commute below statutory minimums, the bench partially allowed the revision to reduce the term to three months rigorous imprisonment and a fine, granting a three-month reprieve to move for g

What did the court decide?

Conviction maintained; sentence reduced to three months rigorous imprisonment and fine of Rs. 2000/-. Grant of three months reprieve to apply to appropriate government for commutation.

Shah Nawajuddin Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2019)

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Reserved.....

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Court No. 17.

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Case :- CRIMINAL REVISION No. - 110 of 1990

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Revisionist :- Shah Nawajuddin Opposite Party :- State Of U.P. Counsel for Revisionist :- Pradeep Kumar,Ashfaq Husain,M.F.Ansari,T.H. Farooqui,Tahir Husain Counsel for Opposite Party :- A.G.A. Hon'ble Suresh Kumar Gupta,J.

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This criminal revision has been filed against the judgment and order dated 10.1.1990 passed by II Additional District Judge Farrukhabad in criminal appeal no. 83 of 1988 preferred against the judgment and order dated 30.7.1988 passed by Chief Judicial Magistrate First Class, Kannauj in Sessions Trial No. 398 of 1986 convicting the revisionist under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and has been sentenced to undergo two years rigorous imprisonment and fine of Rs. 1000/- and in default of payment of fine he has been further directed to undergo six months simple imprisonment. The appellate court has, however, modified the sentence and reduced the sentence to one year rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine further additional imprisonment for six months.

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Brief facts of this case are as follows-:

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On 31.10.1980 at about 10:30 a.m. Sri Deep Chandra Gangwar, Food Inspector had taken sample of 750 gms mustard oil by purchasing and distributed the same in three equal phials and then it was sent for examination and after examination it was found adulterated. The complaint was

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filed against the revisionist under Section 7/16 of the Act.

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Food Inspector, Deep Chandra and Second Food Inspector, K.K. Shukla were examined as P.W.-1 and P.W.-2. and clerk of C.M.O., Sri Khushi Ram Verma was examined as P.W.-3. The statement of the accused, revisionist was recorded under Section 313 Cr.P.C. and he has stated that he has falsely been implicated due to personal vengeance. He has stated that sample of mustard oil was taken from his shop.

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The learned trial court after scrutinizing the circumstances, convicted the accused and directed him to suffer relevant punishment. This judgment and order of conviction and sentence has been challenged in this revision.

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I have heard Sri Tahir Husain and Sri M.F. Ansari, learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

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Learned counsel for the revisionist submitted that as per report of the Public Analyst the oil in question was not adulterated. Butyro refractrometer reading 60.5 saponification value 177.0 and Iodin value 110.0 are all within the prescribed limits for mustard oil hence there can be no question of the oil being adulterated.

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It has also been contended by the learned counsel for the revisionist that sample was taken on 31.10.1980, report of Public Analyst was of 6.12.1980 and complaint was filed on 5.7.1982. Notice under Section 13 (2) of the Act was also given on 5.7.1982 and thus there was a delay of over 1 and half years before the notice under Section 13 (2) of the Act. This resulted in serious prejudice as revisionist's valuable right for re-analysis was lost. He also contended that no

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public witness was called for in this case.

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Learned counsel for the revisionist further contended that sentence awarded by the court below is excessive and therefore, order of imprisonment passed against the revisionist should be set aside and same may be enhanced. To give force to his contention learned counsel for the revisionist has placed reliance on judgments of Hon'ble Supreme Court and judgment of this Court in the case of N. Sukumaran Nair Vs. Food Inspector Mavelikara (1995 Law Suit (SC) 158, Mohd Husain Vs. State of U.P. (2008 Law Suit (All) 1975), Jai Sri Prasad Vs. State of U.P. (Law (All) 2008 11 25), Dhruv Vs. State of U.P. (Law (All) 2006 5 177) and Ram Narain Gupta Vs. State of U.P. (Law (All) 2005 12 92) .

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First arguments of the learned counsel for the revisionist is that there is no question that oil is adulterated but as per report of the Public Analyst the oil in question was not adulterated. Butyro refractrometer reading 60.5 saponification value 177.0 and Iodin value 110.0 and therefore, the above measurement is against the prescribed standard hence under the P.F.A. Act the oil seems to be adulterated. Finding of the trial court and appellate court does not suffer from any infirmity.

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The second arguments of the learned counsel for the revisionist is that no public witness was called at the time of taking sample but it is wrong to say because at the time of taking sample there was no public witness. Learned trial court and learned appellate court in his clear finding have given conclusion that public witnesses were present but due to enmity and other several reasons public witnesses present

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at the spot were not ready to give their deposition. So the contention of the revisionist's counsel that no public witness was called by Food Inspector at the time of taking sample. Hence contention of the learned counsel for the revisionist is liable to be rejected.

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The other contention of the learned counsel for the revisionist that delay in launching the prosecution case caused serious prejudice to the revisionist but what prejudice has been caused has not been shown by revisionist.

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Though an attempt was made to argue that the sample was not adulterated but it is difficult to accept the said submission. Definition of adulteration has contained in Section 2(i.a) reads as under:-

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(i.a) “adulterated” an article of food shall be deemed to be adulterated.”

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(m)“if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.”

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Clause (M) postulates a situation whereof article falls below the prescribed standard, even if it is not injurious to health nevertheless the quality /purity of article were falls below the prescribed standard, it would be treated as adulterated.

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Learned counsel for the revisionist failed to show that prescribed standard of mustard oil falling below due to natural cause which is beyond the control of human agency.

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There is no other significant argument made by the learned counsel for the revisionist. The other point which could have been raised by him had already been answered by

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the learned Magistrate Court as well as Appellate Court.

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Lastly, it is contended by learned counsel for the revisionist that the revisionist has suffered the pain and agony of trial for more than 30 years because the alleged occurrence is of date 31.10.1980 . It was prayed that the sentence of imprisonment of the revisionist be commuted to fine only. Reliance was placed on the following decisions of the Apex Court:-

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Haripada Das Versus State of West Bengal, 1998 (2) FAC 187 : (1998 AIR SCW 4040) the Apex Court has held:-

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“Considering the facts and circumstances of the case and also considering that the revisionist was released on bail by this Court long back and because of the protracted litigation up to this Court he has also suffered a lot of mental agony and financial hardship and also considering the fact that he had already undergone imprisonment for more than three weeks, we feel that in the facts of the case the ends of justice will be met if the sentence of imprisonment is reduced to the period already undergone. We, however, direct the besides the fine imposed by the Courts below, the appellant will have to pay a fine of Rs. 5,000/- within four weeks from today, in default he will have to undergo imprisonment for three months. The appeals are disposed of accordingly. The bail bonds stand discharged”.

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(ii)N Sukumaran Nair V. Food Inspector Navelikara, 1996 (2) PFA Cases 21: (1995 Cri LJ

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3651) wherein it was held (at page 3652 of Cri LJ):

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“The offence took place in the year 1984. The appellant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1000/-. Under clause (d) of Section 433 of the Code of Criminal Procedure, the appropriate government is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial the appellant to deposit in the trial Court a sum of Rs. 6000/- as fine in commutation of the sentence of six months simple imprisonment within a period of six weeks from today 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 Code of Criminal Procedure.”

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Santosh Kumar V. Municipal Corporation, 2000 (2) FAC 76 : (2000 Cri LJ 2777) wherein it was held:-

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“4. This case seems to be almost on a parallel with the facts enumerated in the decision cited above. We are also persuaded to extend the same benefit which the appellant in the aforesaid decision was granted by this Court, as this would be an appropriate case for commutation of sentence under Clause (d) of Section 433 of the Code of Criminal Procedure.

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5. We therefore, direct the appellant to deposit in the

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trial Court a sum of Rupees 10,000/- as fine in commutation of the sentence of 6 months imprisonment within a period of 6 weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of the fine the State Government may formalize the matter by passing appropriate order under clause (d) of Section 433 of the Code of Criminal Procedure. In the meanwhile the appellant will remain on bail.”

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L earned A.G.A. opposed the contention of the learned counsel for the revisionist and submitted that there is complete compliance of the provisions of the P.F.A. Act.

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Now the moot question arises in this case whether this Court can commute the sentence below the minimum prescribed period under the Prevention of Food Adulteration Act. In this regard, the position of law is being considered in several ruling of Hon'ble Supreme Court which is as follows:-

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Delhi Administration (Now NCT of Delhi) Versus Manohar Lal (2002) 7 Supreme Court Cases 222:-

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“3. Aggrieved, the respondent pursued the matter on revision before the High Court in Crl. Revision Petition No.188 of 2001. The conviction of the respondent was not challenged by the respondent before the High Court. So far as the sentence is concerned, adverting to the certificate of the Director, Central Food Laboratory, wherein it was found stated that the colouring matter was not injurious to health and placing reliance upon the decision of this Court reported in 2000 Crl. L. J. 2777, wherein a direction was issued by this Court to the Government under Section 433 Cr.P.C., benefit of Section 433 (d) Cr.P.C.,

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was claimed for the respondent. Taking into account the same and the concession said to have been made by the counsel for the State, the learned Judge in the High Court felt persuaded to extend the benefit of commutation of sentence, as envisaged under Section 433 (d) Cr.P.C.,. and directed the respondent to deposit in the trial court Rs.20,000/- as fine, in commutation of the sentence of imprisonment and inform the Government of such deposit, for formalising the matter by passing appropriate orders under Section 433 (d) Cr.P.C., It was also ordered that on deposit of the fine amount, the sentence of imprisonment imposed shall stand suspended. Aggrieved against this order of the High Court dated 24.4.2001, this appeal has been filed by the Delhi Administration.

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5. We have carefully considered the submissions of the learned counsel appearing on either side. Apparently, the learned Judge in the High Court was merely swayed by considerations of judicial comity and propriety and failed to see that merely because 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

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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 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”.

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“In Mithilesh vs State (NCT of Delhi) (2014) 13 Supreme Court Cases 423, appellant, who was running a small Kirana shop was held guilty for violation of section 2 (i-a) (a) (m) and punished under section 7 read with section 16 (1) of P.F.A. Act for adulteration in red chilli powder with imprisonment for one year, fine of Rs. 3000 and in default of payment of fine simple imprisonment for 3 months by the Magistrate's Court and the said sentence was upheld by the Appellate Court. In revision, the High Court upheld that conviction but the quantum of sentence was reduced to 3 months' RI which is the minimum sentence,

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giving reasons in para -25 of the judgment that offence related to the year 1993; 12 days incarceration had already been undergone by the petitioner who was 47 years of age; he having rooted himself in society, the ends of justice would be met with if the sentence was reduced to three months. On request for showing further leniency it was held by the Supreme Court that no further benevolence could be shown to the appellant, more so, when it was a case of food adulteration. There were no special circumstances which could warrant reducing the sentence below the minimum and accordingly dismissed the appeal”.

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In the State of Rajasthan vs. Jagdish Prasad, (2009) 12 Supreme Court Cases 646, the Supreme Court did not approbate the commutation of sentence of 6 months' RI to fine. The relevant paragraphs of the judgment are as follows:

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“2. By the impugned judgment the High Court while upholding the conviction for offences punishable under sections 7 and 16 of Prevention of Food Adulteration Act, 1954 (in short “the act”) imposed a fine of Rs. 6000 and directed that the same is in commutation of the sentence of 6 months' RI as awarded by the learned Chief Judicial Magistrate, Sikar. It was directed that the appropriate Government shall formalise the matter by passing an appropriate order under clause (d) of section 433 of the Code of Criminal Procedure, 1973 (in short “the Code”) if the amount is deposited within a particular period. For the aforesaid purpose the High

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Court relied on a decision of this Court in N. Sukumaran Nair vs. Food Inspector.

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Learned counsel for the appellant State admitted that High Court's order is clearly unsustainable. Learned counsel for the respondent on the other hand supported the judgment.

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In Dayal Singh vs. State of Rajasthan it was interalia observed as follows (SCC pp. 728-29, para-15)

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“15. In the instant case it was not disputed that for the offence charged a minimum sentence of 6 months rigorous imprisonment is prescribed by law. The appellant has been sentenced to undergo 6 months rigorous imprisonment which is the minimum sentence. We are not inclined to modify the sentence by passing an order of the nature passed in N. Sukumaran Nair (supra) where this Court in exercise of its extra ordinary jurisdiction imposed only a sentence of fine and directed the State to exercise its powers under Section 433 of the Code of Criminal Procedure to commute the sentence of simple imprisonment for fine. In the instant case the appellant has been sentenced to undergo 6 months rigorous imprisonment. Moreover we are firmly of the view that strict adherence to Prevention of Food Adulteration Act and the Rules framed thereunder is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could go away with mere fine. We, therefore,

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find no reason to interfere with the sentence imposed against the appellant.”

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5. In the circumstances, the appeal is allowed. The sentence, as imposed by the trial Court is restored. However, since the occurrence took place nearly three decades back if the respondent-accused moves the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective. For a period of three months the accused need not surrender to undergo sentence during which period it shall be open to him to move the appropriate Government for commutation. If no order in the matter of commutation is passed by appropriate Government the accused shall surrender to custody to serve the remainder of sentence.”

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So on perusing the law laid down by the Hon'ble Supreme Court, it is settled principle that the power to commute the sentence solely vests in appropriate Government under Section 433 Cr.P.C. This Court have no jurisdiction to commute the sentence below minimum prescribed under the P.F.A. Act.

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19. In this case, it appears that the occurrence taken place on 31.10.1980 i.e. more than three decade back. He has already spent few days in jail after having been convicted by Appellate Court out of the awarded sentence of one year. The offence discloses that he was found selling adulterated mustard oil . This is an offence of very petty nature. Therefore, looking to the fact that during the period, the accused/revisionist remained on bail. He did not commit any

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offence and he seems to have rooted well in society approximately 30 years down the line since commission of the offence, the ends of justice would be made if his sentence is reduced to three months rigorous imprisonment and fine of Rs. 2000/- only. The period served by revisionist will be set off in this sentence .

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The revision is partly allowed. Conviction of the revisionist is maintained. His punishment is reduced to three month rigorous imprisonment and fine of Rs. 2000/ - with default clause is maintained.

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However, if the revisionist moved the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective, for a period of three month. The accused need not surrender to undergo sentence during which period it shall be opened to him to move the State Government for commutation. If no order in the matter of commutation is passed by appropriate Government, the accused shall surrender to custody to serve the remainder of sentence.

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The office is directed to transmit back the record of the Lower Court with a copy of judgment and order of this Court for immediate compliance.

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Order Date:- - 24 .01.2019.. A.Pt. Singh..

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Shah Nawajuddin v. State of U.P.

Case brief

What is this about?

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Shah Nawajuddin v. State of U.P.

Case brief

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