A.P. Ravani, J.
1. In food adulteration cases, why impose sentence less than the minimum prescribed under the Prevention of Food Adulteration Act? Why this misplaced sympathy? While answering the aforesaid question it is also necessary to resolve the problem, as to whether the Judge or Bench of Judges issuing show cause notice for enhancement of the sentence should or should not hear the same?
2. The questions arise in the backdrop of the facts that follow:
The petitioner is the orignal accused of Criminal Case No. 87 of 1982 of the Court of learned Metropolitan Magistrate (Court No. VI) Ahmedabad. It was alleged that he sold cow-milk to one Mr. R.S. Patel, Food Inspector of Ahmedabad Municipal Corporation on June, 24, 1982. The said sample of milk was collected by the Food Inspector in the presence of panchas and necessary formalities regarding dividing the sample, packing and sealing the sample were also done in presence of panchas. The sample was sent for analysis to the public analyst who on analysis found that there was fat deficiency in the milk and 40% of the additional water was detected. On the basis of the aforesaid allegations, the complaint was filed against the petitioner-accused. The Food Inspector himself was examined and panch was also examined in the case. On appreciation of evidence and on hearing the parties, the learned Magistrate convicted the accused for the offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and ordered him to undergo sentence of three months. Land to pay a fine of Rs. 500/-, in default of payment of fine, directed to undergo further Section 1. for two month. The petitioner-accused preferred appeal in the Court of City Sessions Judge, Ahmedabad, who after bearing the parties, dismissed the same as per the judgment and order dated October, 8, 1983. The petitioner-accused has preferred this revision application and has challenged the legality and validity of the aforesaid orders.
3. It is contended that the report of the public analyst is not in the prescribed form inasmuch as it is in two parts i.e. at Ex. 8 and Ex. 9. According to the learned Counsel for the petitioner, the second part which is at Ex. 9 is not in the prescribed form and unless the second parties proved by examining the public analyst, the same could not have been made the basis of conviction.
4. In the facts and circumstances of the case, the aforesaid contention has no relevance at all. In the instant case, at the instance of the accused, another sample bottle was sent to the Director of Central Food Laboratory for analysis. The certificate issued by the Director, Central Food Laboratory is produced at Ex. 2. Even according to the certificate issued by the Director, Central Food Laboratory, the sample of milk sold by the petitioner-accused is found to be adulterated as there was fat deficiency. As held by the Full Bench of this High Court in the case of Prahladbhai Ambalal Patel v. The State of Gujarat and Anr. reported in 1984 G.L.H. 413, the report of the public analyst gets superseded when the report of the Director, Central Food Laboratory is placed on record. In the aforesaid judgment, it is held as follows:
Once the report gets superseded it gets totally excluded from evidence and hence no part of the said report can then be considered as evidence of its content. The entire report gets totally substituted and superimposed by the superior certificate of the Director.
5. In above view of the matter, the contention with regard to the alleged defect in the report of the public analyst has no bearing whatsoever on the prosecution case and the same is of no significance whatsoever.
6. It may also be noted that this question was raised before the learned City Sessions Judge. He has dealt with this argument in paras 33 to 35 of his judgment. I am in agreement with the reasoning given by and the conclusion arrived at by the learned City Sessions Judge. He has come to the conclusion that there was no defect in the report of the public analyst and it was on account of the fact that there was no place left in the first part i.e. Ex. 8 and hence additional writing has been made in another part i.e. Ex. 9. That it was for the Courts convenience that the Court gave two separate exhibit numbers. Simply because the trial court gave two separate exhibit numbers, it cannot be said that the report was not in the prescribed form. In view of this position, the contention raised by the Counsel for the petitioner that the report of the public analyst was not in the prescribed form is required to be rejected.
7. The learned Counsel for the petitioner-accused contended that the trial court had no means to determine the genuineness of the sample before sending the same to the Director, Central Food Laboratory. This question was not raised before the trial Court. On this point, there is no cross examination of the complainant Food Inspector. Moreover, there is no mention whatsoever in this behalf in the application submitted under the provisions of Section 13(2)(c) of the Act. It is conceded by the Counsel for the petitioner that no grievance whatsoever was made by the petitioner-accused at the time of submitting the application for sending the sample to the Director. Central Food Laboratory under the provisions of Section 13(2)(a) of the Act. Still, however, when this contention was raised before the learned City Sessions Judge, he has dealt with the same in para 37 of his judgment. The learned City Sessions Judge has himself examined the papers produced at pages 93 to 99 of the record and has come to the conclusion that the sample bottle sent to the Director, Central Food Laboratory was in tact and there was no doubt with regard to the genuineness of the said sample. This is a finding of fact. There is no reason to differ from this finding. In this view of the matter, the contention raised by the learned Counsel on this score has also got to be rejected.
8. The learned Counsel for the petitioner submitted that there was non-compliance of the provisions of Section 10(c)(sic rule 10(c)) of the Act inasmuch as the signature of the panch was not taken on the intimation given to the accused for the purchase of sample milk. The panch has been examined as P.W. 2. No question has been asked to the panch in this connection. Similarly, no question has been put to the complainant Food Inspector on this point in his cross examination. This point was not raised before the lower courts. This question is sought to be raised for the first time before the High Court in this revision application. Moreover, it may be noted that Exhibit-5 i.e. intimation given to the accused for the sale of the sample milk bears the signature of the accused himself. This is an undisputed position. Therefore, absence of the signature of panch on the intimation slip Exhibit 5 pales into insignificance. It cannot be said that any prejudice whatsoever has been caused to the accused on account of the absence of the signature of the panch. The genuineness of the intimation slip Exhibit 5 cannot be doubted because it bears the signature of the accused himself. In this view of the matter, the contention raised with regard to the non-compliance of the provisions of Section 10(c)(sic rule 10(c)) of the Act has also got to be rejected.
9. The trial Court imposed the sentence of three month S.I. And directed the accused to pay a fine of Rs. 500/- and in default of payment of fine, directed to undergo further S. I. for two month. This order of sentence has been confirmed by the learned City Sessions Judge. If one looks at the provisions of Section 16 of the Act, it is clear that the legislature has left no discretion whatsoever with the Court when the offence is under Section 16(1)(a)(i) of the Act. The relevant part of the provisions of Section 16 provides that the accused shall be punishable with imprisonment of a term which shall not be less than six month, but it may extend to 3 years and fine which shall not be less than Rs. 1,000/-. It is not the case of the petitioner-accused that the case against him falls within the proviso to Section 16(1)(a)(i). Once the case does not fall within either of the two provisos to Section 16(1)(a)(i), there is no discretion whatsoever left with the Court. The Court has to impose the maximum sentence of six month and to impose minimum fine of Rs. 1000/-.
10. In the case of P.K. Tejani v. M.R. Dange 1974 S.C. 228, the Supreme Court has observed.
The Prevention of Food Adulteration Act, 1954, is meant to save society, and Parliament has by repeated amendments emphasized the statutory determination to stamp out food offences by severe sentences. Indeed, dissatisfied with the indulgent exercise of judicial discretion, the legislature has deprived the Court of its power to be lenient. In the light of escalating food adulteration this is understandable. Even so, there are violations and violations.
In para 25 of the judgment, it is further observed:
There is injustice to the community - the invisible but immense victim of the crime in the courts misplaced sympathy for the culprit.
11. In the instant case the petitioner-accused is a petty milk vendor. On this basis, it was submitted that the Court may show mercy to him. The submission cannot be accepted because the Court is left with no discretion whatsoever. Moreover there appears to be good reason for not showing any mercy whatsoever even in cases where the offender is a petty vendor or a hawker. It must be realised that the poor, ignorant and unwary people only purchase their articles of food from petty traders. Well-to-do people with sufficient means are never required to purchase milk and other articles of food from hawkers and petty traders. The people belonging to the affluent section of the society get their requirements supplied in packed conditions i.e. in pouches, or bottles or in tinned and sealed packings from dairies and departmental stores. When such petty trader is shown mercy, innumerable poor, ignorant and unwary people are penalised. This appears to be the reason why Parliament has left no discretion with the Court. Had it been the intention of the legislature to see that lenient view may be taken by the Court in appropriate cases, the Parliament would have provided for the same. In the case of P.K. Tejani (supra), the Supreme Court has observed that there may be cases wherein marginal hardship may be caused by stem sentences on unsophisticated small dealers. But as the Supreme Court has further observed, 'every cause has its martyr and Parliament and Government-not the court must be disturbed over the search for solutions of these problems.' When the 654 Court is not left with no (sic. any) discretion whatsoever, and when the Case is proved to be falling within the provisions of Section 16(1)(a)(i), it is not understood how and why the learned Magistrate and the learned City Sessions Judge imposed sentence of 3 month Section 1. which is less than the minimum prescribed under the Act.
12. In above view of the matter, the Counsel for the petitioner-accused was put question as to why this High Court should not take the notice of the fact that lower Courts had failed to impose the minimum sentence as required under the Act and why this High Court should not enhance the sentence exercising its powers under Section 401 of the Criminal Procedure Code. The learned Counsel for the petitioner has been given notice as provided: under Section 386 of the Criminal Procedure Code before enhancing the sentence. The Counsel appears for the accused and waives service of notice.
13. Counsel for the petitioner-accused fairly submitted that as far as he himself was concerned, he had no objection if I hear the notice to show cause issued against the accused for enhancement of the sentence. However, he wished to point out that there was a notion prevailing amongst many advocates that in view of the decision of the Supreme Court in the case of Tarachand v. State of Maharashtra A.I.R. 1962 S.C. 130, a Judge or the Bench of Judges issuing show cause notice for enhancement of sentence should not hear the same.
14. In the aforesaid case before the Supreme Court, the accused was charged for offence under Section 302 of the I.P.C. on the allegation that he had sprinkled kerosene on his wife and had set her on fire. The trial Court found the accused guilty of offence under Section 304 Part-I of the I.P.C. and sentenced him to R. I. for three years and imposed a fine of Rs. 100/-An appeal against acquittal for offence under Section 302 I.P.C. was preferred and the High Court sentenced him to death. Against that judgment and order, the appellant-accused had applied for a certificate to appeal to the Supreme Court which was refused; hence petition for special leave to appeal to the Supreme Court under Article 136 of the Constitution of India was filed. In the Supreme Court, the case was heard by a Bench consisting of five Judges. The majority Judges of the Supreme Court held that the appeal was liable to be dismissed and accordingly the appeal was dismissed. In para 36 of the minority judgment delivered by Raghubar Dayal, J. (on behalf of himself and Hidayatullah, J.) it is observed as follows:
We would like to remark that the learned Judges who heard the appeal should not have heard it when they, at the time of admitting it, felt so strongly about the accused being wrongly acquitted of the offence of murder that they asked the Government Pleader to look into the papers to find out whether it was a case where the Government would like to file an appeal against the acquittal, under Section 302, Penal Code. Government did not file an appeal against that acquittal. We do not know whether it was at the suggestion of the Government Pleader or not. But, in these circumstances, it would have been better exercise of discretion if this appeal against the acquittal had not been heard by the same Bench which, in a way, suggested the filing of the Government appeal. In fact, to make such a suggestion, appears to be very abnormal.
Counsel for the petitioner-accused submits that the general notion which prevails amongst the advocates has its roots in the observation made in the aforesaid paragraph of the Supreme Court judgment. Even a cursory look at the aforesaid observations should make it clear that the Supreme Court has not laid down any principle that a Judge or the Bench of Judges which issues a show cause notice for enhancement of the sentence should not hear the matter. Be it noted that in that case the observations have been made in a minority judgment and that too, on the footing that the Bench which ordered to issue notice bad felt 'so strongly about the accused being wrongly acquitted of the offence of murder' and 'they asked the Government Pleader to look into the papers to find out whether it was a case where the Government would like to file an appeal against the acquittal, under Section 302. Penal Code', it is also clear that, according to, them minority judgment the suggestion so made by the Bench was 'very abnormal'.
15. From what is stated hereinabove, it should be clear that it was in the special facts and circumstances of the case that the minority judges of the Supreme Court had felt that the Bench which had issued notice of enhancement of sentence should not have heard the matter. No absolute proposition has been laid down that a Judge or Bench of Judges which issues show cause notice for enhancement of the sentence should not hear the same. Hence, the notion and/or the belief entertained by the advocates has no roots in any judgment of the Supreme Court and it has no legal basis whatsoever.
16. In the instant case, the Counsel for the petitioner-accused who has received notice on behalf of the accused has no objection if I hear the matter. Moreover, in this case, it is not a question of imposition of enhanced sentence on account of any other circumstance, but it becomes imperative in view of the mandate given by the Legislature. The Court is left with no discretion whatsoever but to impose the minimum sentence prescribed under the Law. As laid down by the Supreme Court in the case of Nadir Khan v. State reported in : 1976CriLJ1721 , in such cases, it is the duty of the High Court to issue show cause notice for enhancement of sentence. When according to the Supreme Court, this is the duty cast upon High Court, then it is not understood how a Judge or the Bench of Judges of the High Court can or should be asked not to perform the duty to its fullest extent. With utmost respect, the notion entertained by the lawyers and at whose instance, the Counsel for the petitioner has shown me the decision in Tarachand's case (supra), has no basis either in law or in common sense. To adopt such practice would cause unnecessary hardships to the office of the High Court and to the accused also. If such practice is adopted, it would so happen that the time consumed by the Judge/Judges constituting the Bench would be rendered useless. Another Judge/Judges constituting Bench will have to invest the time over the same matter again. The Counsel appearing for the State will have to argue the matter again. On account of this, a sword will remain hanging on the head of the accused. Moreover, to adopt such practice would amount to casting aspersion against the Judge/Judges concerned. Simply because a Judge/Judges issue show cause notice for enhancement of sentence, would they become partial or bins? When the Court admits an appeal against acquittal, what does the Court do? Is it not a notice to the accused calling upon him to show cause why the acquittal should not be reversed? By entertaining an appeal against the judgment and order of acquittal, would a Judge(s) become bins? The same logic should apply to the case wherein the Court issues notice to show cause as to why the sentence should not be enhanced.
It may be noted that when such a notice is issued, the accused gets a right to show that his conviction itself is bad and he is entitled to be acquitted of the charges levelled against him. A Judge or Judges hearing the show cause notice for enhancement would be bound to go into the merits of the case and will be required to consider the plea of the accused that he was entitled to be acquitted. There is no basis for raising a presumption or even entertaining an apprehension that a Judge or Judges issuing show cause notice will not be in a position to take detached and impartial view of the matter. Moreover, there is no provision in the Criminal Procedure Code or in the High Court Appellate-Side Rules, disabling the Judge(s) issuing show cause notice for enhancement for hearing the matter on merits and decide the question as to whether the accused is entitled to be acquitted or the sentence imposed was proper or was required to be enhanced,
17. In fairness to the counsel for the petitioner-accused, it must be said that he candidly submitted that once it is held that the offence falls under Section 16(1)(a)(i) and the proviso to the section does not apply, the minimum sentence prescribed under the Act has got to be imposed. In this case, it is not shown as to how the proviso to Section 16(1)(a)(i) can be applied. Hence the sentence imposed upon the petitioner-accused has got to be enhanced to the extent of minimum prescribed under the Act.
18. In the result, the judgment and order of conviction passed by the lower courts are confirmed. The sentence imposed upon the petitioner is modified and the petitioner-accused is directed to undergo R. I. for six month and to pay a fine of Rs. 1000/- in default of payment of fine to undergo further R.I. for the period of two month. Time to surrender up to October 16, 1985, as prayed for, is granted. Notice to show cause against enhancement of sentence is confirmed and the sentence is modified as indicated hereinabove.