Partly allowed

Makhan Chu v. State of U.P. and Another

Allahabad HC2 Dec 2022CRLR/2640/2003

Case brief

AI extract

What is this about?

Revision challenged conviction for food adulteration. Court confirmed conviction but modified sentence under Probation of Offenders Act, 1958, despite minimum sentence in the Food Act, due to age of offence and lack of subsequent criminality.

What did the court decide?

Conviction confirmed but sentence modified to grant benefit of Probation of Offenders Act, 1958, requiring bond with sureties for two years.

Makhan Chu Vs State of U.P. and Another — Pension and Retirement Benefits | Allahabad HC (2022)

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Reserved on 25.11.2022 Delivered on 02.12.2022

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Court No. - 84

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Case :- CRIMINAL REVISION No. - 2640 of 2003

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Revisionist :- Makhan Chu Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ch.Singh Gautam,C.H.Singh Gautam Counsel for Opposite Party :- G.A.,A.G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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1 . This criminal revision is filed by Revisionist-Makhan Chu, who was convicted by judgment and order dated 06.02.1999 passed by Additional Chief Judicial Magistrate (Economic Offences), Ghazipur under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) whereby revisionist was sentenced for one year rigorous imprisonment and fine of Rs. 2000/with default sentence of two months additional rigorous imprisonment. Revisionist is further aggrieved that his appeal against aforesaid order being Criminal Appeal No. 15 of 1999 was dismissed by judgment and order dated 10.09.2003 passed by Additional Sessions Judge (Fast Track Court No. 5), Ghazipur.

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2 . Sri Chandrahas Singh Gautam, learned counsel for revisionist has limited his argument to quantum of sentence placing reliance on two judgments of Supreme Court in Lakhvir Singh and others vs. State of Punjab and another (2021) 2 SCC 763 and State through SP, New Delhi vs. Ratan Lal Arora (2004) 4 SCC 590 and contended that since conviction is under Act, 1954, i.e., enacted before Probation of Offenders Act, 1958 (hereinafter referred to as “Act, 1958”), therefore, benefit of Act, 1958 could be granted to revisionist considering the circumstances of case that alleged offence was occurred way back in the year 1990, i.e., about 32 years ago and allegation was adulteration in oil,

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presently revisionist is aged about 60 years and there is no reported criminal act after the criminal act involved in present case.

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Sri Deepak Kapoor, learned AGA appearing for State, assisted on law that since Act, 1954 was enacted prior to Act, 1958 and there is nothing in Act, 1958 to debar the benefit to accused persons convicted under this Act, therefore, benefit of Act, 1958 could be granted considering the conditions mentioned therein.

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4 . I have heard learned counsel for parties and perused the material available on record.

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5 . In order to consider the legal submissions in the light of facts and circumstances of present case following paragraphs of Lakhvir Singh (supra) are necessary to refer hereinafter:

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“14. The legal position insofar as invocation of Section 4 is concerned has been analysed in Ishar Das vs. State of Punjab elucidating that nonobstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. The observation in Ramji Missar (supra) was cited with approval to the effect that in case of any ambiguity, the beneficial provisions of the Act should receive wide interpretation and should not be read in a restricted sense.

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The aforesaid aspect is confirmed by the wording of the said Act which reads as under:

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“ 18. Saving of operation of certain enactments. — Nothing in this Act shall affect the provisions of Section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), or of any law in force in any State relating to juvenile offenders or Borstal Schools.”

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16 . Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the PC Act’) prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of

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the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab are in the same context.”

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Revisionist was convicted under Section 7/16 of Act, 1954 which prescribes minimum sentence of six months and minimum fine of Rs. 1000/-. However, as held in Lakhvir Singh (supra) that since Act, 1958 is enacted subsequent to Act, 1954 and there is no specific bar to extend the benefit of provisions of Act, 1958 to convicted persons under Act, 1954 even where there is a minimum sentence, therefore, as held in Lakhvir Singh (supra) that non substance clause of Act, 1958 intends that provisions of Act have effect notwithstanding any other law in force at that time, therefore, in the circumstances of the present case that alleged occurrence took place about 32 years ago, allegations were of adulteration in oil and also taking note that there is no reported criminal act after present case as well as present age of revisionist, the benefit of Act, 1958 is extended to revisionist.

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7 . In view of above, the conviction of revisionist is confirmed but without interfering with amount of fine the sentence is modified granting benefit of Probation of Offenders Act, 1958, that revisionist shall give a bond with two sureties each to ensure that he shall maintain peace and good behaviour for a period of two years from today.

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The revision is disposed of accordingly.

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9 . Certify this judgment to the lower Court immediately. Order Date :- 02.12.2022 AK

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Digitally signed by AWADESH KUMAR Date: 2022.12.02 17:11:41 IST Reason: Location: High Court of Judicature at Allahabad

Makhan Chu v. State of U.P. and Another

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Makhan Chu v. State of U.P. and Another

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