H.R. Krishnan, J.
1. This is an appeal under Section 417(1) Criminal Procedure Code, by State of Madhya Pradesh from the appellate order of the Additional Sessions Judge, Jhabua (in Criminal Appeal No. 29 of 1964) setting aside the conviction of the respondent under Section 7(1) read with Section 16(1) of the Prevention of Food Adulteration Act, 1954, and the sentence (in view of a previous conviction) of rigorous imprisonment for one year and a fine of Rs. 2000/-with further rigorous imprisonment in default of six months, recorded by the First Class Magistrate of Thandla, in Criminal Case No. 519 of 1963. Actually, the Sessions Court has, after thus setting aside the conviction and sentence, remanded the case for a retrial in accordance with certain directions set out in its judgment.
2. The allegations that the respondent was offering to sell milk, had actually sold a sample to the Food Inspector, and that the sample sent for analysis in the prescribed manner was found to be below standard and to be adulterated with water, were all admitted by the respondent who stated in his examination under Section 342, Criminal Procedure Code.
Yes. I did add water to the milk which I was selling to my customers and a portion of which I sold to the Food Inspector. I plead guilty: but I am a poor cultivator.
Similarly the factum of earlier conviction on 4-2-1963 for a similar offence was proved by the exhibition of a copy of that judgment and a confronting of the accused which also he admitted:
Yes. On that occasion (on 4-2-1963, in Case No. 39 of 1963) I was convicted for the same offence and sentenced to a fine of Rs. 30/-. This is my second offence.'
3. However, in this appeal a number of points (all unrelated to merits) have been urged on behalf of the respondent why this Court should not interfere in appeal and should let the order of the Sessions Court take effect. The more important of these grounds are firstly, that in view of the acquittal by the--Sessions Court being incomplete or provisional, no appeal under Section 417, Cr. p. C. is competent; and the appropriate course of the aggrieved party is an application in revision, secondly, that as the prosecution, under the Prevention of Food Adulteration Act, is one under Section 190(1)(a) and not under Section 190(1)(b), Cr. P. C. the Government is not competent to file an appeal under Section 417(1), Cr. P. C. the local authority or the Food Inspector may seek special leave under Section 417(3), Cr. P. C. The argument in other words is that these two sub-sections are mutually exclusive. Thirdly, that apart from other errors, it is urged, the trial Court had contravened the provisions of Sections 221(7), 255-A and 256, Cr. P. C. As these do not seem to have been fully examined by any of the High Courts, it would be convenient to deal with them at some length.
4. The facts themselves are simple. The respondent is a milk vendor with a set of regular customers among whom he was distributing milk on the morning of 28-6-1963 within the municipality of Maghnagar. The Food Inspector stopped him and took a sample. There was no indication on the container as to the kind of milk he was selling, and naturally the standard applied was that laid down for buffalo-milk. This incidentally is in accordance with one of the statutory rupees which prevents the seller of milk pleading, without an express indication on we container itself, that it was milk from a cow or a goat and not from a buffalo. It was sent for analysis and turned put to be adulterated. The analyst has in his report calculated from the shortage that about 7.5 per cent of water had been superadded. Our calculation from his own data would give a higher percentage of the superadded water but that is immaterial; because even on the most charitable view, the milk had been adulterated.
5. In this Court a suggestion was made that the addition of preservatives, which is usually formalin, had not been established and it was possible that during the few days between the same taking and the analysis, the milk might have got decomposed. Actually, the Panch-nama which was exhibited mentions the addition of 16 drops of formalin, and the Food Inspector who was offered for cross-examination was not asked anything about it. In fact, from the line the respondent was taken and in view of the express-admission, this question did not arise. We will have to assume that the milk that was offered for sale and was actually sold to the Food Inspector was below standard. Similarly the previous convictions was put to the accused proved by documentary evidence and admitted by him.
6. Still the Sessions Court allowed his appeal because the Magistrate before whom the accused pleaded guilty did not straightway convict him but called upon him to enter into defence, and when he said he had no defence, then convicted him. It is a confusing argument: but the idea seems to be that having called upon him to enter into defence, the Magistrate should have considered it and not merely the plea of guilty though it is not clear what exactly he was to consider, because there was no defence evidence. A second error which according to the Sessions Court was fatal to the conviction was that a separate charge was not framed in regard to the previous conviction though it was expressly put to the accused and admitted by him. This according to the Sessions Court is a contravention of the 'mandatory' provisions in Section 221(7). Similarly he feels that there was a breach of requirement of Section 255-A, in that the Magistrate had not recorded a conviction under the current charge before proceeding to prove the previous conviction. He has also indicated that there was a breach under Section 256, Cr. P. C. What exactly it was, is not clear; but apparently the Sessions Court's idea is that having called upon the accused to enter into defence, he should have placed the prosecution witnesses once again before the accused even though he did not want them, so that he could cross-examine them after the charge. For these reasons, in spite of the express admission of the adulteration as well as of the previous conviction, the Sessions Court set aside the conviction and remanded the case for a retrial.
7. Ground No. 1:Actually it makes little practical difference in the instant case whether the present proceedings are treated as an appeal from an order of acquittal or as an application in revision directed against the legality or the propriety of the order of the Sessions Court. In the instant case, the result would be the same whether we set aside the judgment of acquittal and restore the conviction and the sentence recorded by the Magistrate, or whether we set aside the order of the Sessions Court on the ground of illegality; when that order is washed out, the judgment of conviction and the sentence awarded by the Magistrate would automatically be revived.
Still it is urged that the Sessions Court has acquitted the respondent but has only directed a retrial. An acquittal properly so called would attract Section 403, Cr. P. C. and be a bar to retrial. Arguing backwards, it is urged that we have an order of remand which makes no acquittal for purposes of Section 417, Cr. P. C. It is difficult to agree; because the very process of setting aside the judgment of the Magistrate amounts to an acquittal though there is the further condition about retrial. Such an acquittal ipso facto attracts Section 417, Cr. P.C. Thus we would hold as a matter of form that this is an appeal and not a proceeding in revision, though in substance it makes no difference whatever view we take of the matter.
8. Ground No. 2;-If this is a revision, it would be unnecessary to demarcate the fields covered respectively by Sub-sections (1) and (3) of Section 417, Cr. P. C. This is because the revisional power is ultimately exercised by the High Court in its own discretion whatever the manner in which the illegality or impropriety is brought to its notice. But assuming this is an appeal, then certainly the question arises whether in a complaint case, such as the present one, a State Government can file an appeal. It is urged on behalf of the Government that Sub-section (1) speaks of 'an original or appellate order of acquittal passed in any case by any Court other than a High Court.' The words 'in any case' are comprehensive and include all the three types of cases mentioned in Section 190, Cr. P. C. Certainly there is one exception; but that is not of all complaint cases, but only of cases that come under Sub-section (5) of Section 417, Cr. P. C.
Sub-section (5)--'If, in any case, the application, under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).' In other words, it is not every case that might come under Sub-section (3) that is excluded, but only such of them as come under it and in which, the special leave having been sought, has been refused by the High Court.
9. As against it, it is urged on behalf of the respondent that our Criminal Procedure Code provides for two patterns of criminal trial. The one started by police challan is tried in a manner materially different from that started on a private complaint. Till 1955, appeal from acquittal in a case started on complaint was not specially provided for. But it was open to the aggrieved complainant, whether he was an individual or a local authority, to persuade the Government to direct the Public Prosecutor to present an appeal; but if the Government refused to do so, the complainant was helpless. In the amendment of 1956, a complainant is afforded an opportunity of approaching the High Court direct. The respondent's position is that the scheme of the Code is such that this new right automatically bars the invoking of the powers of the State Government to direct the Public Prosecutor to present an appeal from an acquittal in a complaint case.
10. While considering this question, which may be of great importance in a large number of cases, we have to be guided by the provisions of Section 417, Cr. P. C. treating it a complete Code on this subject, rather than speculate upon what may be a symmetrical pattern. Simply because the procedures for complaint cases and police report cases are different in certain particulars, there is no reason why appeals against acquittal in the two types should be compartmentalised in a water-tight manner, As long as there is no confusion, we can have an option to the complainant whether to move the State Government in the manner in which he would have had to do before 1956 or, to avail of the new remedy afforded by Sub-section (3). For this we have to be guided by the wording of the three sub-sections already referred to.
It is obvious that the complainant can after 1956, seek leave in the High Court of presenting an appeal to it. The real question is whether this right has restricted the competency of the State Government, to direct the Public Prosecutor to present an appeal from an order of acquittal in 'any case'. As the section now stands, it is difficult to resist the inference that it does not, because 'any case' includes one instituted on a complaint. It would thus be open to the complainant to choose one of the two courses open to him. However, once he has sought leave and it has been refused, the Public Prosecutor cannot present the appeal at the instance of the State Government. There is nothing complicated about it because the High Court having examined the merits of the acquittal in one connection, should not be again troubled with the same problem by another agency. Thus unless the complainant has sought special leave and it has been refused, it is open to the Public Prosecutor on the direction of the State Government to present the appeal from an acquittal even in a case instituted on a complaint. Certainly, when the complainant has obtained leave, (there would be no occasion for the State Government to direct the Public Prose-cutor; but even if there is, the High Court will take note of the fact that the 'special leave has already been granted and, declined to admit the appeal presented by the Public Prosecutor, await that by the complainant himself.
11. Other grounds: All of these relate to matters of procedure as are covered by irregularity provisions in Section 537, Criminal Procedure Code, For example, the appellate Court finds that there has been a breach of the requirement of Section 221(7), Cri. P. C. Under that section, it is necessary for the Court to state in the charge, at any time before the sentence is passed, the facts, date and place of the previous conviction. Certainly in the instant case, this has not been done; but we do not agree with the result derived by the appellate Court from this omission. After recording the statement of the accused in regard to the fact of the charge, the trial Court proceeded:
Question--In Case No. 30 of 1963 you were convicted on 4-2-1963 under charges of the same nature as the present one and sentenced to a fine of Rs. 30/-2.
Answer--Yes. On that occasion also I was convicted for the offence of adding water to milk and sentenced to a fine. This is my second offence.
Question--Have you anything else to say?
Answer--I am a poor cultivator.' In this manner though the particulars required by Section 221(7), Cr. P. C. have not been mentioned in the charge they were explicitly put to the accused who in his turn admitted their correctness. If this a defect in the charge, it is one cured by Section 537 (b).
Any error, omission or irregularity in the charge which has not occasioned a failure of justice.
Whether it is mentioned in the charge itself or is separately put to the accused, the point is that he should be confronted and he should be in a position, if he can, to show that he had not been really convicted, or the conviction was for another offence or the punishment different. In the instant case, this has been done clearly enough and there has been no miscarriage of justice. It is difficult to see how this omission can at all justify the setting aside of the conviction.
12. The learned appellate Court has referred to Section 255-A, Cr. P. C. also. That section does not come into operation, because the accused has admitted the previous conviction; but any way, the best evidence in that regard viz., a certified copy of the previous judgment has been filed. It is of course not the case of the respondent that the judgment related to somebody else.
13. The discussion in the judgment of the Additional Sessions Judge regarding Sections 255 and 256, Cr. P. C. is obscure. What he apparently means is that having made up his mind to call upon the accused to enter into his defence the trial Magistrate should not have convicted on a plea of guilty. In this Court, it has been argued on behalf of the respondent that having the plea of guilty before him the Magistrate should not have asked the accused, if he wanted to adduce defence evidence. Section 255(b), Cr. P. C. empowers the Magistrate, in the event of the plea of guilty, at his discretion to convict the accused straightway: but if he is so minded then the Magistrate can still call upon the accused, if he has got anything further in defence. This would enable the latter to bring out points in his favour as might mitigate the sentence. What actually happened in this case was that the accused had nothing to put up by way of defence except possibly the excuse that he was a poor cultivator. So that even when the Magistrate was minded to give an opportunity to the accused to defend himself in spite of his plea of guilty, he had nothing else before him.
14. In this Court it is pointed out that the prosecution witnesses were not called a second time for cross-examination after charge. In case of this kind, the oral evidence is very simple. There will always be the Food Inspector who gives oral evidence, and in addition, proves his report. Then there is a report of the Public Analyst which goes in without his examination unless for special reasons the Court summons him. Sometimes one of the Panchas or local witnesses to the taking of the sample is also examined; but where the manner of the sample taking is not in controversy, the Panch is not called. In the instant case, for example, the Food Inspector was called and, after examination in chief, was offered for cross-examination before charge which was declined. The analyst's report was exhibited and a charge framed. It was conceivable that in the event of the accused person challenging the fact or the regularity of the sample-taking, the Panch would have been called. Similarly in the event of his wanting the analyst to be called, he might have been summoned as well. Actually, the accused admitted all these things and there was no occasion to call any more witnesses. Nor did the accused want the Food Inspector himself for further cross-examination. It is suggested that he was unrepresented by a lawyer; but we fail to see what difference this could make. Actually his statement under Section 342, Cr. P. C. shows that there could possibly be no occasion for his asking for further cross-examination for defence witnesses.
15. In these circumstances we are quite unable to accept the reasons given by the Sessions Court for setting aside the conviction and sentence in spite of the respondent's clear admissions. It is likely that he had hoped, by making a clean breast of the whole thing, to earn the sympathy of the Court and get away with a light sentence: but such sympathy, if shown at all, would have been quite misplaced. Actually, this being the second offence, the Court itself had no choice, in view of Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, under which the minimum sentence for the second offence is rigorous imprisonment for one year and a fine of Rs. 2000/-except where there are special and adequate reasons to the contrary, which are not available in the instant case.
16. The result of the foregoing discussion is that the (State) appeal is allowed, the judgment of the Sessions Court is set aside and that of the trial Magistrate is revived. The respondent shall surrender his bail and shall be remanded to serve the unexpired portion of the rigorous imprisonment and pay the fine of Rs. 2000/- (Rupees two thousand) or suffer further rigorous imprisonment for six months in default.