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Sukhdeo and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 155/1978
Judge
Reported in1982WLN(UC)128
AppellantSukhdeo and ors.
RespondentState of Rajasthan
Cases ReferredIn Ishar Dass v. State of Punjab
Excerpt:
prevention of food adulterations, 1955 - rules 17, 18 & 7--requirements of.;it must be held that: (i) under rule 17 it is abligatory for the food inspector to seal the outer cover containing the sealed container and the memorandum in form vii; (ii) the provisions of rule 18 which require that the copy of the memorandum and the speciman impression of the sead used to send the packet should be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him are mandatory in nature; and (iii) rule 7 requires that the public analyst must compare the seals on the container and the outer cover with specimen impression of the seal received separately and shall note the condition of the seals there on and after analysis the public analyst should.....s.c. agrawal, j.1. both these revision petitions raise common questions for determination and, therefore, they are being disposed of by this common order.2. criminal revision no. 155 of 1978 has been filed by sukhdeo against the judgment, dated may, 31, 1978, passed by the sessions judge, bhilwara, in criminal appeal no. 255 of 1977, filed by the said petitioner against the decision of munsif and judicial magistrate, gulabpura, in criminal case no. 342 of 1976. in the aforesaid criminal case the said petitioner was prosecuted in respect of an offence under section 7/16 of the prevention of food adulteration act, 1951 (hereinafter referred to as 'the act') the case of the prosecution was that on december 10, 1975, shri shyamlal, (p.w. 1), food inspector of gulabpura, checked the milk in.....
Judgment:

S.C. Agrawal, J.

1. Both these revision petitions raise common questions for determination and, therefore, they are being disposed of by this common order.

2. Criminal Revision No. 155 of 1978 has been filed by Sukhdeo against the Judgment, dated May, 31, 1978, passed by the Sessions Judge, Bhilwara, in Criminal Appeal No. 255 of 1977, filed by the said petitioner against the decision of Munsif and Judicial Magistrate, Gulabpura, in Criminal Case No. 342 of 1976. In the aforesaid criminal case the said petitioner was prosecuted in respect of an offence under Section 7/16 of the Prevention of Food Adulteration Act, 1951 (hereinafter referred to as 'the Act') The case of the prosecution was that on December 10, 1975, Shri Shyamlal, (P.W. 1), Food Inspector of Gulabpura, checked the milk in the possession of the petitioner, which was stated to be cow and buffalo milk (mixed) which has been brought for sale to Gulabpura by the petitioner. The Food Inspector purchased 660 ml. of milk from the petitioner and after dividing it into three parts, he put the same in three bottles and put 18 drops of formalin in each bottle and sealed, said bottles. One of the bottles was delivered to the petitioner and another bottle was sent to the Public Analyst, Ajmer, for chemical examination. According to the report of the Public Analyst (Ex. p 5), the sample of the milk contained in the bottle was adulterated for the reason that it contained about 16% of added water. Thereafter a complaint was filed against the petitioner in the court of Chief Judicial Magistrate, Bhilwara, and the same was transferred to the court of Munsiff and Judical Magistrate, Gulabpura, for trial. The Munsiff and Judicial Magistrate, by his judgment, dated September 26, 1977, convicted the petitioner of the offence under Section 7/16 of the Act and sentenced him to rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in the event of default in payment of fine to undergo simple imprisonment for a further period of six months. The petitioner filed an appeal which was decided by the Sessions Judge, Bhilwara, by his judgment, dated May 31, 1978. The Sessions Judge, while upholding the conviction of the petitioners under Section 7/16 of the Act, reduced the sentence to rigorous imprisonment for three months and a fine of Rs. 500/-, and in the event of non-payment of fine to undergo simple imprisonment for a further period of three months.

3. Criminal Revision Petition No. 157 of 1978 has been filed by Ladu and it is directed against the judgment, dated June 3, 1978, passed by the Sessions Judge, Bhilwara, in Criminal Appeal Ni. 38 of 1978 filed by the said petitioner against the judgment of the Munsiff and Judicial (sic)Magistrate, Gulabpura in Criana case No. 342 of 1978. In the aforesaid case the said petitioner was prosecuted in respect of an offence under Section 7/16 of the Act. The case of the prosecution was that on September 27, 975, Shri Shyamlal Bhati, (P.W. 1), Food Inspector. Gulabpura,(sic)checked the milk in the possession of the petitioner and the said milk which was claimed to be cow and buffalo milk (mixed) had been brought by the petitioner for sale to Gulabpura. The Food Inspector purchased 660 ml. of milk and after dividing in to three equal parts, he filed the same in three bottles and after adding 18 drops of formalin in each bottle he sealed the bottles. One of those bottles was delivered to the petitioner' and another one was sent to the Public Anylyst, Ajmer, for analysis. According to the report of the Public Analyst (Ex P. 5) the sample of the milk contained in the bottle was adulterated for the reason that it contained about 16% of added water. Thereupon, a complaint was filed against the petitioner in the court of Chief Judicial Magistrate, Bhilwara, which was later on transferred to the court of Munsiff and Judicial Magistrate, Gulabpura The Judicial Magistrate by his judgment, dated February 1, 1978, convicted the petitioner of the offence under Section 7/16 of the Act and sentenced him to rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, and in the event of default in payment of fine to undergo simple imprisonment for a further period of six months. The petitioner filed an appeal against the aforesaid judgment of the Judicial Magistrate and he said appeal was decided by the Sessions Judge, Bhilwara by his judgment, dated June 3, 1978. The Sessions Judge, while upholding the conviction of the petitioner under Section 7/16 of the Act, reduced the sentence to rigorous imprisonment for a period of three months a and fine of Rs. 500/-, and in the event of non-payment of fine to undergo simple imprisonment for a further period of three months.

4. I have heard Shri Rewachand, the learned Counsel for the petitioners in both the revision petitions and the learned Publie Prosecutor.

5. Shri Rewachand has challenged the conviction of the petitioners in both these cases on the following two grounds:

(i) there has been non-compliance with the mandatory provisions of Rule 9(i) of the Prevention of Food Adulteretion Rules 1955 (hereinafter referred to as 'the rules');

(ii) there has been noncompliance with the mandatory provisions of Rules 7, 17 and 18 of the Rules.

6. In so far as the first contention of Shri Rewachand is concerned it may be observed that Rule 9(j) as originally framed, read as under:

9.(j) It shall be the duty of the Food Inspector to send by hand or registred post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or the Rules made thereunder as soon as the case is filed in the Court.

The aforesaid rule was amended with effect from February 13, 1974 and after amendment, it read as under:

(9) It shall be the duty of the Food Inspector...

(j) to send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case, the sample conforms to the provisions of the Act Rules made thereunder then the person may be informed of the same and the report need not be sent.

The said rule has now been omitted with effect from January 4, 1977, in view of the amendments that have been introduced in Section 13 of the Act by the Prevention of Food Adulteration (Amendment) Act, 1976. As a result of the aforesaid amendments Sub-section (2) of Section 13 of the Act; Provides as under:

(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the simple of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forwarded, in such nammer as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, in formaing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local '(Health) Authority analysed by the the Central Food Laboratory.

It would thus be seen that Rule 9(j), as originally framed and prior to its amendment with effect from February 13, 1974, postulated that the copy of the report of the Public Analyst would be sent by Registered post or by hand to the person from whom the sample was taken in case, it was found to be not conforming of the Act or Rules made thereunder as soon as the case was filed in the Court. After amendment with effect from February 13, 1974 the said rule provided that the copy of the report received from the Public Analyst should be sent by Registered Post to the person from whom the sample was taken within ten days of the receipt of the said report. Under Sub-section (2) of Section 13 as it stands after the enactment of the Amendment Act of 1976, a copy of the report of the Public Analyst is required to be forwarded to the person from whom the sample of the article of food was taken after the institution of the prosecution against him and the said person has been given a right to make an application to the court within a period of 10 days from the date of the receipt of the copy of the report to get the sample of the article of food, Kept by the Local (Health) Authority analysed by the Central food Laboratory.

7. In Criminal Revision No. 155 of 1978 the sample of the milk of has been taken on December 10, 1975, and in Criminal Revision No. 157 of 1978 the said sample was taken on September 27, 1975. Thus, in both the cases the provisions of Rule 9(j) as amended with affect from February 13, 1974 are applicable.

8. The provisions of Rule 9(j) of the Rules have come up for consideration before this Court in a number of cases. In Shakoor v. State of Rajasthan (sic)(a)1977 Cr. LR (Raj.) 17 decided by a learned Single Judge of this Court (Shrimal J.) the provisions of Rule 9(j) as they stood prior to the amendment of 1974 were construed and it was held that the said provisions were not mandatory but were directory in nature and that non-compliance of the said provisions would not result in the acquittal of the accused unless it was shown that as a result of the said non compliance the accused had been prejudiced in his defence. In State of Rajasthan v. Noparam 1980 Raj, Criminal Cases 241 the provisions of Rule 9(j) as amended with effect from February 13, 1974, were considered and it was held that the said provisions were mandatory in the sense that it was incumbent upon the Food Inspector to send a copy of the report of the Public Analyst to the person from whom the sample was taken before the filing of the compliant but the requirements in the said Rule that the copy of the report of the Public Analyst should be sent by registered post and within ten days of the receipt of the report which was directory in the sense that the failure to comply with the same would not have any bearing on the trial of it was shown that the said provisions had been substantially complied with and no prejudice had been caused to the accused as a result of the failure to strictly comply with the said requirements. In the said case this court did not agree with the judgment of the Bombay High Court in State of Maharashtra v. Josti Doba 1978 Cr LJ 427 but preferred to agree with the view of the Andhra Pradesh High Court in Public Prosecutor v. JM. Murlidhar 1977 Cr. LJ 1634.

9. In Richpal v. State of Rajasthan 1977 WLN (UC) 326 another learned single Judge of this court (Bhatnagar J) has considered the provisions of Rule 9(j) as amended with effect from February 13, 1974 and has held that the said provisions were mandatory and that since there was non-compliance with the conviction of the accused could not be sustained. The earlier decisions of this court in Shakoor v. State of Rajasthan (supra) and State of Rajasthan v. Noparam (supra) were not noticed in this decision.

10. Thus there are conflicting decisions of learned Single Judges of this Court on the question as to whether the provisions of Rule 9(j) as is Mood after the amendment of February 13, 1974 were mandatory or directory in nature. I would have referred the matter to a larger Bench for resolving this conflict but in the facts and circumstances of the case I do not consider it necessary to do so, because in my view, on the basis of the record of both the cases, it cannot be said that there has been non-compliance with the provision of Rule 9(j).

11. In both these revision petitions there is the evidence of Shyam Lai Bhati, P.W. 1 that he had given the information of the report of the Public Analyst to the accused petitioner and that Ex. P. 6 was the copy of the letter by which the said information was sent. In Criminal Revision No. 155 of 1978 Ex. P. 6 is the letter dated January 9, 1976 addressed by Shyam Lai Bhati to the petitioner Sukhdeo which shows that a copy of the report of the Public Analyst was sent along with the said letter to the petitioner. The said letter bears an endorsement 'registered letter'. Similarly in Criminal Revision No. 157 of 1978, Ex. P. 6 is the letter dated October 27, 1975 addressed by Shyamlal Bhati to the petitioner Ladu and the said letter also bears an endorsement 'registered Letter'. From the aforesaid evidence that has been adduced in both these cases it is clear that a copy of the report of the Public Analyst was sent by the Food Inspector within ten days of its receipt and in view of toe endorsement 'registered letter' on the copy of the letter Ex. P. 6 in both the cases it can be said that the said copy of the report of the Public Analyst was sent to the petitioners by registered post. In my opinion, therefore, it cannot be said that the provisions of Rule 9 (j) have not been complied with in these cases.

12. The second contention of Shri Rewachand relates to the noncompliance with the provisions of Rules 7,17 and 18 of the Rules. Rules 7 prescribes duties of a Public Analyst and in sub Rule (1) it is laid down that on receipt of a packet containing a sample for analysis from a Food Inspector or any other person the Public Analyst, or any officer authorised by him, shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition with the seals therein. Sub-rule (3) of Rule 7, as it stood after February 13, 1974 but prior to the amendment of 1977, laid down that if the analysis had been completed the Public Analyst shall send to the person concerned two copies of the report of the result of such analysis in Form III within a period of 45 days of the receipt of the sample. Rule 16 prescribes the manner of packing and sealing the samples & in Sub-rule (d) of the said rule it is laid down that both, jar or other container containing the sample after packing shall be tied with a twine or thread and the same shall be sealed with sealing was so as to bear at least four distinct and clear impressions of the seal of the sender. Rule 17 prescribes the manner of despatcahing containers of samples and the said rule as it stood prior to the amendment of 1977, laid down that the container of sample for analysis shall be sent to the Public Analyst by registered post or railway parcel or Air-flight or by hand or by any suitable means of transport available in a sealed packet enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst. Rule 18 provides that a copy of the memorandum and the specimen impresssion of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or the any person authorised by him.

13. A combined reading of the aforesaid rules indicates that after bottle, jar or container containing the sample of the food article had been sealed the said sealed container along with a Memorandum in Form VII was required to be placed in a packet which was also required to be sealed and the sealed packet containing the sealed container as well as the memorandum in Form VII required to be sent to the Public Analyst either by registered post or railway or Air flight or by hand or by any sutaible means of transport available. It was further required by Rule 18 that a copy of the memorandum and specimen impression of seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. After the aforesaid sealed packet containing the sample as well as the copy of the memorandum and the specimen impression of the seal were received by him, the Public Analyst was required by Rule 7(1) to compare the seals on the container and the outer cover with specimen impression of the seal received separately and to note the conditions of the seals thereon. From the provisions of Sub-rule (1) of Rule 7 it appears that seal on the container as well as the outer cover is the same because both these seals are to be compared with the specimen impression of the seal which is sent separately under Rule 18.

14. The aforesaid provisions contained in Rules 7, 17 and 18 have come up for consideration before this Court in a number of cases. In State of Rajasthan v. Ram Sehai 1979 Cr. L.R.(Raj.) 60 a learned Single Judge of this Court (M.C. Jain, J) has held that although Rule 17 does not lay down that the outer cover of container may as well be sealed but the said rule has to be read along with Rule 7 as well as Form III and if so read it would be evident that the outer cover is also required to be sealed. The aforesaid decision in State of Rajasthan v. Ramsahai (supra) was followed by another learned Single Judge of this Court (Bhatnagar J.) in Bherulal v. State of Rajasthan 1980 Raj. Cr. C. 62 wherein, while holding that Rule 17 postulates the sealing of the outer cover, the learned Judge further held that the provisions contained in Rule 18 for sending the copy of the memorandum and specimen impression of the seal used to seal the packet separately are mandatory in nature and that the direction contained in Sub-rule (3) of Rule 7 with regard to the sending of the copies of the reports of the result of the analysis in Form III by the Public Analyst was also mandatory in nature and that the said direction should be complied with. In State of Rajasthan v. Mangu 1979 WLN(UC) 309 a Division Bench of this Court has also held that the provisions of Rule 18 are mandatory in nature.

15. In view of decisions aforesaid it must be held that:

(i) Under Rule 17 it is obligatory for the Food Inspector to seal the outer cover containing the sealed container and the memorandum in form VII;

(ii) the provisions of Rule 18 which require that the copy of the memorandum and the speciman impression of the seal used to seal the packet should be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him are mandatory in nature and

(iii) Rule 7 requires that the Public Analyst must compare the seals on the container and the outer cover with specimen impression of the seal received separetely and shall note the condition of the seals thereon and after analysis the Public Analyst should send the report in Form III.

16. The first question which arises for consideration is whether the provisions of Rule 17 have been complied with these cases. The submission of Shri Rewachand was that there is no evidence to show that the outer cover containing the sealed container and memorandum in form VII had been sealed by the Food Inspector before sending the same to the Public Analyst. I am unable to accept the aforesaid contention. In both the cases there is evidence of Shyamlal P.W. 1, who was stated that he had sent one sample to the Public Analyst, Ajmer along with form No. VII and that one copy of form VII was sent separately and the said copy is Ex. P. 4. The document marked Ex. P. 4 in both the cases is the copy of the Memorandum in Form VII. In both the cases Ex. P. 4 contains the following statement.

A copy of this memo and specimen impression of the seal used to seal the packet of sample is being sent separately by hand.

The aforesaid statement in Ex. P. 4 indicates that the packet of sample which was sent by the Food Inspector to the Public Analyst had been sealed. In my opinion, therefore, it cannot be said that the packet or the outer cover containing the sealed container and the memorandum in Form VII had not been sealed and there was non-compliance with Rule 17.

17. As to whether there has been compliance with the provissions of Rule 18 it may be observed that in Criminal Revision No. 155/78 there is evidence of Shyamlal P.W. 1, in examination-in-chief that he had sent one Form VII separately by registered post and the copy of the same was Ex. P. 4. The aforesaid statement made by Shymlal was not challenged during the course of cross-examination. Moreover, the aforesaid statement that a copy of the memorandum containing the specimen impression of the seal was sent separately finds corroboration from Ex. P. 4, the copy of the Memorandum in Form VII which contains the statement that a copy of the said memo and the specimen impression of the seal used to seal the packet of sample was sent separately by hand. Moreover, the report of the Public Analyst, which is exhibited as Ex. P. 5 also contains the statement that seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Shri Rewachand has submitted that there is contradiction between the evidence of Shayamlal, P.W. 1 and Ex P. 4 the copy of their Memorandum in Form VH in as much as while in his statement as P.W. 1 Shyamlal has stated that he had sent the memorandum in Form No. VII by registered post whereas the copy of the said memorandum which has been exhibited as Ex. P. 4 shows that it, was not sent by registered post but was sent by hand. In my opinion the petitioner car not be permitted to take advantage of this discrepancy between the evidence of Shyamlal and the document Ex. P. 4 about the manner of sending the copy of the memorandum in form No. VII containing the seal impression. It was open to the petitioner to have cross-examined Shyam Lai in that regard the petitioner cannot take advantage of this discrepancy between the statement of Shyamlal and Ex. P. 4 with regard to the manner in which the copy of the memorandum in Form No. VII containing the specimen impression of the seal was sent to the Public Analyst. The Sessions Judge has chosen to place reliance on the statement of Shyamlal, P.W. J, that the copy of the memorandum in Form VII was sent to the Public Analyst by registered post and I find no reason to disagree with the said finding in revision.

18. In Criminal Revision No. 157/78 there is evidence of Shyamlal, P.W. 1, that he had himself delivered a copy of the memorandum in Form No. VII to the Public Analyst. The said statement of Shyamlal. P.W. 1, finds corroboration from Ex. P. 4 which is a copy of the said memorandum in Form VII and which contains the statement to the effect that the copy of the memorandum and the specimen impression of the seal used to seal the sample was being sent separately by hand. The evidence of the Shyamlal P.W. 1 is also corroborated in Ex. P. 5, the report of the Public Analyst, where in it is stated that the seal fixed on the container of the sample tallied wish the specimen impression of the seal separately sent by the Food Inspector. Shri Rewachand has submitted that Shyamlal, during the course of his cross examination, has stated that he bad obtained a receipt when he delivered the copy of the memorandum containing the specimen impression of the seal at Ajmer and that it was incumbent upon the prosecution to have produced the said receipt and that in the absence of the said receipt no reliance can be placed on the testimony of Shyamlal. I am unable to accept the aforesaid contention. As noticed earlier the evidence of Shyamlal. P.W. 1, that he had delivered a copy of the memorandum in Form VIII containing the specimen impression of the seal to the Public Analyst at Ajmer by hand finds corroboration from the documents Ex. P. 4 and Ex. 5 and I find no reason to discard the said statement of P. W. 1, Shyamlal only on the ground that the receipt that was obtained by Shyamlal when he delivered the said specimen impression of the seal has not been produced.

19. In my opinion, therefore, it cannot be said that there has been non-compliance with the provisions of Rule 18 in these cases.

20. With regard to non-compliance with the provisions of Rule 7 the submission of Shri Rewachand was that Form III with regard to the report of the Public Analyst had been amended in the year 1973 and that thereafter the words 'and the outer cover' were inserted between the word 'container' and the words 'of the sample'. The submission of Shri Rewachand was that after the aforesaid amendment of Form III in 1973 it was necessary for the Public Analyst to say in his report that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food inspector. According to Shri Rewachand the reports of the Public Analyst which are marked as Ex. P. 5 in both these cases, are in Form III, as it stood prior to the amendment of 1973, and all that has been stated therein is that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Shri Rewachand has submitted that in the reports of the Public Analyst in both these cases it has not been stated that the seal fixed on the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. It is true that the report of the Public Analyst in both these cases is in accordance with Form III, as it stood prior to the amendment of 1973, and the said report does not state that the seal fixed on the outer cover of the sample tallied with the specimen impression of the seal separately sent. But in my opinion the aforesaid infirmity in the report of the Public Analyse is of little consequence in as much as the rules contemplate that the seal which would be fixed on the container as well as out cover would be same and the said seal should tally with the specimen impression of the seal sent separately under Rule 18. In the present cases it has been found that both the container as well as the outer cover had been duly sealed and the specimen impression of the seal had been sent separately under Rule 18 and that in the report of the public analyst in both the cases it is stated that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent. This shows that at the time when the sample was received by the Public Analyst there was no tampering with the seal of container and, therefore the petitioners cannot be said to have suffered any prejudice on the failure on the part of the Public Analyst to state in his report that the seal fixed on the outer cover of the sample tallied with the specimen impression of the seal separately sent. In my opinion, therefore, non-compliance with the provisions of Rule 7(3) is not of such a nature so as to entitle the petitioners in these revision petitions being acquitted.

21. Another contention urged by Shri Rewachand was that the petitioners should have been given the benefit of provisions of the Probation of Offenders Act, 1958, and that the Sessions Judge has committed an error in denying the said benefit to the petitioners. The aforesaid contention of Shri Rewachand also cannot be accepted. The petitioners, in both these cases, were more than 21 years old at the relevant time. In Ishar Dass v. State of Punjab : 1972CriLJ874 it has been laid down that the Act has been enacted with the aim of eradicating the anti-social evil of adulteration of food which is injurious to public health and that 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 Rs. 1000/- has been prescribed, the courts should not lightly resort the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of the offences under the Act. After the aforesaid decision of the Supreme Court the Parliament amended the Act by the Amendment Act of 1976, and inserted Section 20AA in the Act whereby it has been specifically provided that nothing contained in the Probation of Offenders Act, 1958 or Section 360 Cr. P. C. 1973 shall apply to a person convicted of an offence under the Act unless the person is under 18 years of age. In Prem vallabh v. State : 1977CriLJ12 the Supreme Court has taken note of the aforesaid amendment introduced in the Act and even though the said case related to the period prior to the coming into force of the said amendment, the Supreme Court has observed that the said amendment shows the legislative intent which it would not be right for the court to ignore. In view of the aforesaid decisions, I am unable to agree with Shri Rewachand that the petitioners who were admittedly more than 21 years of age should be given benefit of the provisions of Probation of Offenders Act 1958 or Section 360 Cr. P.C.

22. I may now come to the question of adequacy of the sentence which has been imposed on the petitioners. At the time of admission of these revision petitions that Court had directed that notice be issued to each of the petitioners to show cause as to why the sentence should not be enhanced. I have heard Shri Rewachand and the learned Public Prosecutor on the question of enhancement of sentence. Under the provisions of Section 16 of the Act as it stood at the relevant time i.e. prior to the enactment of the Amendment Act of 1976, the penalty that was prescribed was imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than Rs. 1000/-. There was, however, a proviso which enabled the court for any adequate or special reasons to be mentioned in the judgment, to impose a sentence of imprisonment for a term of less than six months or a fine less than Rs. 1000/- or of both imprisonment for a term of less than six months and fine less than Rs. 1000/-. In Criminal Revision No. 145/78 the Sessions Judge, while reducing the sentence of imprisonment for six months to three months and the fine from Rs. 1000/- to Rs. 500/-, has observed that according to report of the Public Analyst the fat contents of the simple were 4.9% and thus in excess of the prescribed percentage of 4.5%. The Sessions Judge has observed that since fat contents were more than the prescribed standard it was a fit case in which lesser sentence could be awarded Similarly in Criminal Revision No. 157/78 the Sessions Judge has observed that according to the report of the Public Analyst the fat contents were in excess of the prescribed limit and only the non-fat contents were lower. In my opinion in the facts and circumstances of the case, it cannot be said that there were no adequate and special reasons for awarding a lesser punishment to the petitioners and this Court in exercise of its revisional jurisdiction would not be justified in enhancing the punishment that has been imposed on the petitioners.

23. Shri Rewachand has pointed out that in Criminal Revision Petition No. 155 of 1978 the petitioner remained in jail from May 31, 1978 to June 13, 1978 and in Criminal Revision Petition No. 157/78 the petitioner remained in jail from June 3, 1978. The submission of Shri Rewachand was that taking into consideration the fact that the petitioners petty are milk vendors only and have been undergoing the harrassment of a protracted trial as well as proceedings in appeal and revision and they have remained in jail for the periods referred to above the sentence of imprisonment may be reduced to the period of imprisonment already undergone. Taking into consideration the facts and circumstances of the case, I am of the opinion that the interest of justice would be subserved if the sentence of imprisonment imposed on the petitioner is reduced to the period of imprisonment already undergone but the sentence of fine is enhanced from Rs. 300/- to Rs. 1000/-.

24. In the result, the revision petitions are partly allowed, The conviction of the petitioners under Section 7/16 of the Act is upheld. They are sentenced to the period of imprisonment already undergone and pay a fine of Rs. 1000/- and in the event of non payment of fine they will undergo simple imprisonment for a period of three months. The fine may be deposited within a period of two months.


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