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State of Kerala Vs. Neelakantan Damodaran and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1974CriLJ1107
AppellantState of Kerala
RespondentNeelakantan Damodaran and anr.
Cases ReferredPrevention of Food Adulteration Act. In Isher Das v. The State of Punjab
Excerpt:
.....air 1963 punj 170 :(1963) 1 cri lj 469 it was hold that a party which could have appealed and has failed to do so cannot invoke the revisional jurisdiction of the high court. in rajkishore jena's case air 191 orissa 193 referred to above suo motu revisional jurisdiction of the high court was not exercised because the orissa high court felt that it could be exercised only in exceptional cases. 14. in the other case which is in revision the accused was released on probation of good conduct under section 4 of the probation of offenders act......from the sentence of the former court.this provision does not run counter to the provisions of the code of criminal procedure, as section 404. criminal procedure code provides-no appeal shall lie from any judgment or order of a criminal court except as provided, for by this code or by any other law for the time being in force.where there is provision to file an appeal under a special statute as required in section 404, criminal procedure code, and if no appeal is filed under that statute, it is not open to a party to that proceeding to question the order, judgment or conviction in a revision under section 439, criminal procedure code. sub-section (5) of section 439, criminal procedure code itself prohibits the filing of a revision under section 439(1) if the party has a rieht of appeal......
Judgment:

E.K. Moidu, J.

1. The respondent in each of the petitions has been convicted under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954) -- hereinafter referred to as 'the Act' -- and the respondent in the first of the two petitions was released on admonition under Section 3, and the respondent in the other petition was released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 (Central Act 20 of 1958), without awarding any sentence. The State has filed these two revision petitions questioning the impropriety and illegality of the order.

2. The Food Inspector in the first case purchased gingili oil from the respondent and it was found to be adulterated on analysis by the Public Analyst. The purchase of gingili oil, the procedure adopted by the Food Inspector in sampling and the final result of the analysis by the Public Analyst were not disputed, On analysis it was found that the standard of the sample of gingili oil was not in conformity with the standard prescribed under the Prevention of Food Adulteration Rules 1955. Under Rule A. 17-11 of the Rules, the Butyro-refractometer reading at 40C shall be 58.0 to 61.0 while the sample in question was found to be 54.2. Under the same Rule, saponification value shall be 188 to 193. But the sample showed 203.5. The Iodine value should have been 105 to 115 under the Rule, but the sample showed 87.4. Apart from these variations there was also the additional circumstance that the admixture contained 19 per cent of coconut oil. The trial court was therefore correct in holding that the respondent is guilty of the offence under Section 7(i) read with Section 16(1)(a)(i) of the Act.

3. In the other case the article of food was tea infusion, which, on analysis, was found to contain coal-tar dye which was identified as Orange II (Colour Index 151). Under Rule 29 (g) of the Rules, addition of coal-tar dye to the tea beverage is prohibited. In this case also it was not disputed that the Food Inspector purchased the article of food in question, that he followed the correct procedure in sampling and that the Public Analyst gave his opinion in accordance with the provisions of the Act and the Rules made thereunder. It can therefore be held that the respondent in this case has correctly been convicted under Section 7(i) read with Section 16(1)(a)(i) of the Act.

4. The main question argued by the learned Counsel of the respondent in each of these cases was that the revision against the order passed either under Section 3 or under Section 4 of the Probation of Offenders Act, is not maintainable as the remedy of the State, if any, under that Act is to file an appeal against the order and so long as the right to file an appeal subsists, the State cannot circumvent the procedure by invoking the powers of the High Court under Section 439 Cr.P.C. So the question is whether the remedy of the State, in the circumstances of these cases, is to file an appeal against the orders or not.

5. There is no difficulty in finding an answer to this question as Section 11(2) of the Probation of Offenders Act itself provides for a right of appeal it reads:

Notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentence of the former court.

This provision does not run counter to the provisions of the Code of Criminal Procedure, as Section 404. Criminal Procedure Code provides-

No appeal shall lie from any judgment or order of a Criminal Court except as provided, for by this Code or by any other law for the time being in force.

Where there is provision to file an appeal under a special statute as required in Section 404, Criminal Procedure Code, and if no appeal is filed under that statute, it is not open to a party to that proceeding to question the order, judgment or conviction in a revision under Section 439, Criminal Procedure Code. Sub-section (5) of Section 439, Criminal Procedure Code itself prohibits the filing of a revision under Section 439(1) if the party has a rieht of appeal. Sub-section (5) reads-

Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

Sub-section (2) of Section 11 of the Probation of Offenders Act applies to all parties in a proceeding pending before a Criminal Court. The expression 'party' occurring in Sub-section (5) of Section 439, Criminal Procedure Code includes not only private parties, but also the State if it happens to be the party as in a police case. Section 11(2) of the Probation of Offenders Act, read with Section 439(5), Criminal Procedure Code is clear that the State is bound to file an appeal against the order made either under Section 3 or under Section 4 of the Probation of Offenders Act, and that the remedy of the State, or for that matter, every person who is affected by the order, is to file an appeal against that order and not to file a revision against the order under Section 439(1), Criminal Procedure Code. The revision petition therefore is not maintainable. That was also the view expressed in a decision in Rajkishore Jena v. Raja alias Kalasi Sahu AIR 1971 Ori 193. The opinion expressed in that decision reads:

In any view of the matter, in my opinion, the petitioner in this case who was the complainant being entitled to prefer an appeal under Section 11(2) and not having done so, the revision is not maintainable.

6. In an earlier ruling of the Orissa High Court in The State v. K. Lachman Murty : AIR1958Ori204 , where in a police case ending in acquittal by the trying Magistrate, the State omitted to file a regular appeal under Section 417, Criminal Procedure Code, it was held that the State cannot move the High Court through the Sessions Judge to reverse the order of acquittal in exercise of its revisional jurisdiction under Section 439, Criminal Procedure Code. It is because the State being a party for the purpose of Section 439(5), Criminal Procedure Code, that Sub-section would operate as a bar against the High Court's interference in revision. It is apparent from the trend of this decision that the language of Section 439(5), Criminal Procedure Code, does not warrant the inference that the bar of that Section applies only if the court is directly approached by the party concerned and not when it is moved through the Sessions Judge or the District Magistrate, as the case may be, even though the latter officer was requested to exercise his revisional jurisdiction at the instance of the party concerned.

7. Again in State v. Haraprakash Bajaj ILR 1964 Cut 620 it is pointed out that the order of acquittal in a case under Section 12 of the Bihar and Orissa Motor Vehicles Taxation Act is appealable under Section 417, Criminal Procedure Code and therefore a reference on behalf of the State is incompetent, and it will not be legal for the High Court in exercise of its revisional jurisdiction to interfere with the order of acquittal at the instance of a party who could have appealed.

8. In State v. Alakh Narain Singh : AIR1954Pat161 , the State preferred a revision against the acquittal by the Magistrate. The Additional Sessions Judge referred the case to High Court for setting aside the acquittal. Section 439(5), Criminal Procedure Code was held to be a bar for exercising jurisdiction under Section 439(1). Criminal Procedure Code. It was further held in that case that the bar operated even if the State without coming to the High Court direct has chosen to come through the Additional Sessions Judge on a reference made by him.

9. In Kishan Singh Munsha Singh v. The State AIR 1963 Punj 170 : (1963) 1 Cri LJ 469 it was hold that a party which could have appealed and has failed to do so cannot invoke the revisional jurisdiction of the High Court.

10. But in a Saurashtra decision in State v. Kanbi Vashram Kanji AIR 1954 Sau 129 : 1954 Cri LJ 1553 it is held that in a fit case the High Court can exercise its power of revision, although no appeal has been preferred by the accused. But such power should be exercised in rare cases of palpable or gross error requiring interference by the High Court in the interest of justice.

11. It may be relevant also to point out that the obiter dictum in Raj Kumar Paul v. Amar Chand pas (1962) 1 Cri LJ 677 (Tripura), is consistent with the above view. In this decision it was pointed out that the right of appeal against an acquittal was provided only when the complainant obtained special leave of the High Court under Section 417(3), Criminal Procedure Code. So it can be said that under Section 417(3) he has a right to file an application for leave to appeal to High Court. It followed that Section 439(5), Criminal Procedure Code is no bar to a complainant from invoking the revisional jurisdiction of the High Court under Section 439(1), Criminal Procedure Code.

12. The conclusions and opinions expressed in these cases, however, do not militate against the powers of the High Court in revision in interfering with an illegal or improper order passed by Lower Courts. There is no doubt that the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever the facts calling for its exercise are brought to the notice of the court and it matters little how and by whom those facts are brought to the notice of the High Court. The revisional jurisdiction of the High Court is in its real purpose not a mere power but also a duty. The bar under Sub-section (5) of Section 439, Crimi nal Procedure Code can operate only against a party and cannot operate to deprive the High Court of its undoubted jurisdiction. In Rajkishore Jena's case AIR 191 Orissa 193 referred to above suo motu revisional jurisdiction of the High Court was not exercised because the Orissa High Court felt that it could be exercised only in exceptional cases. Anyhow High Court's right to invoke revisional jurisdiction had not been denied in that case. Whether the revisional jurisdiction has to be exercised or not depends upon the circumstances of each case based on the nature of illegality or injustice committed by Subordinate Courts in their orders or judgments.

13. Considering the orders which are sought to be revised in the instant case we might say that the order which is the subject-matter in the first of these two petitions is on the face of it illegal. Under Section 16(1) of the Prevention of Food Adulteration Act, the maximum term of imprisonment provided for is six years. But the application of Section 3 of the Probation of Offenders Act is limited to the offence which is punishable with imprisonment for not more than two years. So the trial Court should not have applied Section 3 of that Act against the accused after he is convicted under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.

14. In the other case which is in revision the accused was released on probation of good conduct under Section 4 of the Probation of Offenders Act. In that case the Public Analyst found that the tea infusion contained coal-tar dye which was identified as Orange II (Colour Index 151). The addition of coal-tar dye is not permitted under Rule 29 (g) of the Prevention of Food Adulteration Rules. Accordingly the tea was found to be adulterated. The trial Court has not given sufficient reason for the application of Section 4 of the Probation of Offenders Act to the case on hand. It is the duty of the trial Court in the interest of justice to consider the nature of the sentence to be awarded taking into consideration the nature and gravity of the offence. In this regard it is relevant to point out the observations of the Supreme Court as a guideline to be followed by courts whenever sentences are to be awarded on offenders under the Prevention of Food Adulteration Act. In Isher Das v. The State of Punjab : 1972CriLJ874 the Supreme Court observed as follows, at page 1299:

Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act. As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the Prevention of Food Adulteration Act. should not be deprived of the advantage of Probation of Offenders Act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.

15. The trial Court did not consider whether the cases before it are fit and proper for the application of the provisions of Probation of Offenders Act or not. In the first of these cases, it was argued that the offence made out in that case would come within the ambit of the first proviso to Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, and as such minimum sentence as required under Section 16(1) need not be imposed in that case. The trial Court did not consider that aspect of the question. So both these cases are remitted to the trial Magistrate for fresh disposal on the basis of the convictions the learned Magistrate had already entered against the respective accused person in each of these cases.

16. In the result, the conviction entered against the respective accused person is confirmed; the orders under Sections 3 and 4 of the Probation of Offenders Act are set aside and both the cases are remitted to the trial Magistrate for disposal in accordance With law.

P. Narayana Pillai, J.

17. I agree in disposing of these Revision Petitions as indicated by my learned brother.


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