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State of Kerala Vs. Arunachalam Reddiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1961CriLJ112
AppellantState of Kerala
RespondentArunachalam Reddiar and ors.
Cases ReferredM. P. v. Ramkrishna
Excerpt:
- - no doubt, it is usual in this court to have die applications for a certificate of fitness for appeal to be heard by the same judges who disposed of the appeal, but that is not due to any unalterable rule of practice and in a case like this where one of the judges is not available, the petition has perforce to be beard by a bench differently constituted. certifying' is a strong word and therefore, it has been repeatedly pointed out that a high court is in error in granting a certificate on a mere question of fact, and that the high court is not justified in passing on an appeal for determination by this court when there are no complexities of law involved in the case......the complainant in the case was the city corporation of trivandrum represented by the corporation food inspector.the 1st accused is the owner of a shop and the 2nd accused is stated to have been conducting the sales in the shop for and on behalf of the 1st accused. the prosecution case is that on 30-7-1957 the food inspector of the corporation went to the shop and purchased twelve ozs. of gingilly oil from the 2nd accused and sent a portion of it to the public analyst. it was found that the said gingilly oil contained a high percentage of groundnut oil and fatty acids.the accused were proceeded against under the prevention of food adulteration act hereinafter referred to as the act and the first class magistrate who tried the case convicted both the accused under clause (l)(g)(ii) of.....
Judgment:

Anna Chandy, J.

1. This is an application by the State under Article 134(1)(c) of the Constitution, that we certify as a tit case for appeal to the Supreme Court, the order of acquittal passed by this Court in Criminal Appeal No. 417 of 1958. The appeal arises out of a prosecution instituted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act XXXVII of 1954. The complainant in the case was the City Corporation of Trivandrum represented by the Corporation Food Inspector.

The 1st accused is the owner of a shop and the 2nd accused is stated to have been conducting the sales in the shop for and on behalf of the 1st accused. The prosecution case is that on 30-7-1957 the Food Inspector of the Corporation went to the shop and purchased twelve ozs. of gingilly oil from the 2nd accused and sent a portion of it to the public analyst. It was found that the said gingilly oil contained a high percentage of groundnut oil and fatty acids.

The accused were proceeded against under the Prevention of Food Adulteration Act hereinafter referred to as the Act and the First Class Magistrate who tried the case convicted both the accused under Clause (l)(g)(ii) of Section 16 and sentenced each of them to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2000/- and in default of payment to undergo simple imprisonment for a further period of six months. On appeal the learned Sessions Judge found that the prosecution was vitiated by serious illegalities and therefore allowed the appeal.

Against that order of acquittal the complainant filed an appeal to this Court after obtaining special leave under Section 417 of the Criminal Procedure Code. This Court upheld the order of acquittal finding that the general authority conferred by the Commissioner of the Corporation on the Food Inspector to prosecute all persons who may be found to have committed offences under the Prevention of Food Adulteration Act could not be accepted as a proper and valid sanction under Section 20 of the Act and that in the absence of a valid sanction the prosecution launched by the Food Inspector could not be sustained.

The court also held that certain irregularities and illegalities in the investigation and trial of this case had caused material prejudice to the accused. One such defect was that the direction under Sub-section (7) of Section 10 of the Act that where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6) he shall as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures, was not complied with in this case, though independent witnesses are available in that locality.

Another was that the Food Inspector did not comply with the provisions of Section 11 of the Act which directs that when a Food Inspector takes a sample of food for analysis, he shall give notice in writing then and there of his intention to have it so analysed, to the person from whom he has taken the sample. Here the sample was supplied by the 2nd accused but the only notice served on him was one addressed to the 1st accused. Yet another irregularity was the clubbing of the charge for the actual commission of the offence with the one for enhanced punishment for a previous conviction.

2. In the application for certificate, the correctness of the findings on all the above points is challenged and it is alleged that the questions of law raised and decided by this Court in the appeal are of outstanding difficulty and importance and have given rise to conflict of opinion among the different High Courts of India.

3. Notice of the application was served on the accused and they strongly object to the grant of the certificate. Two preliminary objections were raised by Shri Malloor K. Govinda Pillai the learned Counsel for the accused. He contended that the State has no locus standi to move the application as it was not a party to the appeal and that this Bench which is different from the one which disposed of the appeal is not competent to hear the application for the certificate. The appeal was disposed of by a Bench -consisting of one of us and His Lordship Sankaran, C, J., who has since then retired.

4. There is no force in either of these objections. As for the first objection, it is seen that the Government was a party to the appeal. Though the appeal itself was filed by the Food Inspector who was the complainant in the case, notice of the appeal was served on the State and the Public Prosecutor who entered appearance supported the arguments of the appellant and pressed for a conviction of the accused. The second objection is based upon certain observations made in Sidheswar Ganguly v. State of West Bengal : 1958CriLJ273 .

That was a case where an appeal filed by the -accused having been summarily dismissed by a Division Bench of the Calcutta High Court, the accused applied for grant of a certificate and another Division Bench which dealt with the application examined the grounds taken in the appeal and in the order granting leave made certain observations on the summary disposal of the appeal by the other Bench. It was held by the Supreme Court that the Division Bench which heard the application for a certificate acted contrary to the legal position that one Division Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench.

Needless to say the case is no authority for the position taken up by the learned Counsel for the respondent that an application for a certificate can in no circumstance be heard by a Bench constituted by Judges other than those who heard the appeal. No doubt, it is usual in this Court to have die applications for a certificate of fitness for appeal to be heard by the same Judges who disposed of the appeal, but that is not due to any unalterable rule of practice and in a case like this where one of the Judges is not available, the petition has perforce to be beard by a Bench differently constituted.

5. However, on the merits, this application can-not succeed. We may refer here to two decisions of the Supreme Court which will be of help in deciding as to what makes a criminal case a fit one for appeal to the Supreme Court. In State Govt., M. P. v. Ramkrishna : AIR1954SC20 while considering the provisions of Article 134 of the Constitution, the Court held that:

Article 134 of the Constitution permits an appeal to this Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India, if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. It does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words, there is no provision in the Constitution corresponding to Section 417, Criminal P.C., and such an order is final, subject however, to the overriding powers vested' in this Court by Article 136 of the Constitution'. and regarding the exercise of that jurisdiction it was held:

In the case of an order of acquittal where the presumption of the innocence of an accused person is reinforced by that order, it seems to us that the exercise of this jurisdiction would not be justified for merely correcting errors of fact or law of the High Court, An occasion for interference with an acquittal order may arise, however, where a High Court acts perversely or otherwise improperly or has been deceived by fraud.

In another case : 1958CriLJ273 while considering the sustainability of a certificate under Article 134(1)(c) granted by the Calcutta High Court, His Lordship Sinha, J., as he then was, observed:

Certifying' is a strong word and therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case. requiring an authoritative interpretation by this Court.

So, in a criminal case where the High Court has confirmed an order of acquittal, it will not be justified in granting a certificate under Article 134(1)(c) unless the case involves questions of law of such complexity that require elucidation by the Supreme Court.

6. We do not think, the present case involves any such exceptionally difficult questions. Whether certain irregularities had caused prejudice to the accused and the extent of such prejudice are questions of fact, and the principle that a general sanction given to a Food Inspector to prosecute all those who infringe the provisions of the Food Adulteration Act, will not amount to the sanction contemplated in Section 20 of the said Act, though a question of law is not in our opinion a question of any great complexity.

That is not to say that there is no chance of error, but the position appears to be that the mere possibility of such error is not sufficient to justify the grant of a certificate under Article 134(1)(c).r The matter might be different if the question of law had given rise to differences of opinion between the various High Courts. In the present case though It was alleged in the application that there are such differences of opinion, that ground was not urged at the time of argument and no such cases were brought to our notice,

7. We feel that we cannot certify as fit for appeal to the. Supreme Court the order of acquittal passed in this case. The petition is hence rejected.


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