Abhishek vs State Of U.P.
2019 Latest Caselaw 5424 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 78
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25773 of 2019
 

 
Applicant :- Abhishek
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Jitendra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Sri Jitendra Singh, learned counsel for the applicant-Abhishek, and Sri Om Prakash Mishra, learned A.G.A. for the State.

2. Perused the material on record.

3. The instant bail application has been filed by the applicant- Abhishek respectively with a prayer to enlarge them on bail in Case Crime No. 19 of 2019, under Sections 420, 272 I.P.C. Police Station- Nangal, District-Bijnor, during the pendency of the trial.

4. It transpires from the record that a first information report has been lodged by the Sub-inspector, Sri Bijendra Singh on 20.03.2019 at 02:47 hrs against three persons, namely, Rizwan, Manoj Kumar and Abhishek Kumar (applicant herein) alleging therein that the Police has been informed that in the Sarkari Mandi situate at Vill-Sahjadpur, three persons were preparing artificial desi ghee by adding chemical in it, in order to sell it on high rate to public at large. On the said information, the Police personnel came to the spot and saw that three persons were preparing artificial desi ghee on a gas stove. They were instructing to each other to mix chemical so that an aroma of pure ghee may ooze from this artificial ghee and mixed this chemical in this artificial ghee. The accused persons were arrested on the spot and when they were also asked for license, they could not show. From the possession of them, 33 kg. Artificial desi ghee and some tool, gas stove were recovered from the spot, which was registered as case crime no. 19 of 2019 under Section 420 and 272 I.P.C., Police Station-Nangal, District-Bijnor.

5. It has been argued by the learned counsel for the applicant that once alleged adulteration is being made in food stuff, then the entire activity of applicant is covered by Special Act i.e. Food Safety and Standard Act, 2006 and the authorities can take action only under the aforesaid Special Act as it postulates an overriding effect over all other food related laws including the F.A. Act and accordingly, invocation of Section 272 I.P.C. in matter relating to adulteration is unjustifiable, hence this Court should come to the rescue and reprieve of the applicant. It has further been argued that the period of detention of the applicant of more than three months as on date is excessive, whereas the punishment for the offences punishable under Section 272 is only for six months along with fine. It has further been argued by the learned counsel for the applicant that the co-accused persons, namely, Manoj and Rizwan having similar role, have already been granted bail by another Bench of this Court vide order dated 20.06.2019 and 01.07.2019 passed in Cri. Misc. Bail Application Nos. 24939 of 2019 and 25578 of 2019, respectively, copy of which orders have been passed on to the Court today, is taken on record, hence the applicant is also liable to be enlarged on bail on the ground of parity. It has lastly been argued that the applicant has not committed any heinous crime and he is alleged to have committed petty offences. Therefore, they are liable to be enlarged on bail. The applicant has no criminal antecedents to their credit except the present one. As the present case is false, the applicant is liable to be enlarged on bail. There is no possibility of the applicants of fleeing away from the judicial process or tampering with the witnesses and in case, the applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. The applicant is in jail since 20.03.2019.

6. Per contra, Mr. Om Prakash Mishra, learned A.G.A. has opposed the present application for bail. He states that the first submission of the learned counsel for the applicant that when in the matter food adulteration, Special Act i.e. FSS Act has come into picture, provisions of Section 272 I.P.C. is not applicable against applicant is liable to be rejected on the ground that there is no bar to a trial or conviction of an offender under two different enactments, the bar is only to the punishment of the offender twice for the offence. In support of the same, Mr. Mishra, learned A.G.A. has placed reliance upon the judgment of the Apex Court in the case of the State of Maharashtra & Anr. Versus Sayeed Hassan Sayeed Subhan & Ors. reported in AIR 2018 SC 5348 & MANU/SC/1021/2018.

7. Paragraph nos. 6 and 7 of the said judgment are reproduced herein below:

"6. There is no dispute that Section 55 of the FSS Act provides for penalty to be imposed for non compliance of the requirements of the Act, Rules or Regulations or orders issued thereunder by the Food Safety Officer. But, we are afraid that we cannot agree with the conclusion of the High Court that non compliance of the provisions of the Act, Rules or Regulations or orders cannot be subject matter of a prosecution under IPC unless expressly or impliedly barred. The High Court is clearly wrong in holding that action can be initiated against defaulters only under Section 55 of FSS Act or proceedings under Section 68 for adjudication have to be taken. A further error was committed by the High Court in interpreting the scope of Section 188 of the IPC. Section 188 of the IPC does not only cover breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act complained of causes or tends to cause danger to human life, health or safety as well. We do not agree with the High Court that the prohibitory order of the Commissioner, Food and Safety is not an order contemplated under Chapter X of the IPC. We are also not in a position to accept the findings of the High Court that Section 55 of the FSS Act is the only provision which can be resorted to for non compliance of orders passed under the Act as it is a special enactment.

7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:

"Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of 1 T.S. Baliah v. T.S.Rengachari - (1969) 3 SCR 65 2 State of Bihar v. Murad Ali Khan - (1988) 4 SCC 655 those enactments, but shall not be liable to be punished twice for the same offence."

8. So far as the second submission raised by the learned counsel for the applicant that the period of detention of the applicant of more than three months as on date is excessive, whereas the punishment for the offences punishable under Section 272 Cr.P.C. is only for six months along with fine, is also liable to be rejected on the ground that under the amended provisions of Section 272 I.P.C. in the State of Uttar Pradesh, the punishment for the offences under Section 272 I.P.C. is for life imprisonment along with fine. Learned counsel for the applicant has mislead the court in submitting that the punishment under the aforesaid Section is for six months only. In support of the same, he has placed reliance upon the amended provisions of Section 272 I.P.C., which read as follows:

"272. Adulteration of food or drink intended for sale

Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

STATE AMENDMENTS

State of Uttar Pradesh:

In sections 272, 273, 274, 275 and 276 for the words "shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both" the following shall be substituted, namely:-

"shall be punished with imprisonment for life and shall also be liable to fine:

Provided that the court may, for adequate reason to be mentioned in the judgment, impose a sentence of imprisonment which is less than imprisonment tot- life."

[Vide U.P. Act No. 47 of 1975]."

9. In view of the aforesaid amended provisions, Mr. Mishra, learned A.G.A. has further stated that as learned counsel for the applicant has mislead the Court by submitting that the punishment under Section 272 I.P.C., is for six months only, applicant is not entitled to any relief from this Court including their enlargement on bail. In support of the same, he has referred paragraph nos. 21 to 30 of the judgment of the Apex Court in the case of Ramjas Foundation & Another Versus Union of India & Others reported in (2010) 14 SCC 38, which reads as follows:

"21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.

22. In Dalglish v. Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B. observed:

"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward.

23. In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words: "A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go."

24. In Republic of Peru v. Dreyfus Brothers & Company 55 L.T. 802, 803, Kay J. held as under:

"I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made."

25. The same rule was restated by Scrutton L., J in R. v. Kensington Income Tax Commissioner (1917) 1 K.B. 486. The facts of that case were that in April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicants for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicants obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicants was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicants stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother's house, 213, King's Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent part of the time at 213, King's Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom.

26. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicants in reply, it appeared that in February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in the name of the applicant's brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the appliants out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicants. The Divisional Court without dealing with the merits of the case discharged the rule on the ground that the applicants had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say "we refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicants in bringing the case before us".

27. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed:

"and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicants comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicants must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement."

28. The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands - Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114.

29. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed:

"1.For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." (emphasis supplied)

30. In our view, the appellants are not entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under clause (d) of notification dated 13.11.1959 by the High Court and this Court."

10. Mr. Mishra, learned A.G.A. has further argued that the lastly submits that the parity claimed by the learned counsel for the applicant is also liable to be rejected on the ground that the grant of bail is not a mechanical act and principle of consistency cannot be extended to repeating a wrong order. If the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, it will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. Mr. Mishra, learned A.G.A. has also placed reliance upon following judgments of the Apex Court as well as of this Court:-

(a) Chander @ Chandra v. State of U.P. (1998 U.P. Cr.R. 263); the Apex Court in paragraph-19 has held as follows:-

"......The grant of bail is not a mechanical act and principle of consistency cannot be extended to repeating a wrong order. If the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, it will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency."

(b) Amarnath Yadav vs. State of U.P.; 2009 (67) ACC 534 AIR, the Apex Court in paragraph-39 has held as follows:-

"39. In Herringion v. British Raiways Board (1972 (2) WLR 537) Lord Morris said:-

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lords Denning in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which said of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the said branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it".

(c) In Chandigarh Administration Vs. Jagjit Singh; AIR 1995 SC 705, the Apex Court in paragraph-8 has held as follows:

"....... if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal and unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order."

"...... The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition.

"..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law."

(d) In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:-

"The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused-respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier."

(e) In Satyendra Singh Vs. State of U.P.; 1996 A. Cr. R.867 also, the following observations have been made by this Court in para 16:-

"The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judicially but rule of parity is not applicable in all the cases, where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity can not be a sole ground and is one of the grounds for consideration of the question of bail."

Even otherwise, the learned A.G.A. has pointed out that bail orders of co-accused persons, namely, Manoj and Rizwan had been obtained by suppressing material facts and misrepresenting before the Hon'ble Court.

11. Mr. Mishra, learned A.G.A. has next argued that the last submission of the learned counsel for the applicant that the applicant has not committed heinous crime and for the petty offences, seeing the detention of the period of the applicant, they are liable to be enlarged on bail, is also liable to be rejected on the ground that the learned counsel for the applicant has mislead the court as the offences committed by the applicant is punishable under Section 272 and punishment under the said Section is for life imprisonment along with fine. The person like the applicant, who sells the food stuff by mixing toxic chemicals etc. only to earn more money and for their personal benefit, are liable to be punished harshly, as such persons are dangerous for life and liberty of public at large. In this case, the artificial desi ghee, which are made from chemicals, not only make the people sick but also become cause of death in few cases. Due to the consumption of artificial desi ghee, people can get various chronic diseases like Liver Disorder, Diarrhoea, Stomach Disorder, Lathyrism Cancer, Vomiting, Dysentery, Cancer, Joint Pain, Heart Diseases, Food Poisoning etc. The minerals, chemicals, and poor quality substances added to the food are responsible for these health conditions which the people might have to undergo in future.

12. Dealing with the complicity of applicant-accused and in light of the material on record, the learned A.G.A. vehemently submits that no case for bail is made out and the bail application of the present applicant is liable to be rejected. It is lastly contended that the innocence of the applicant cannot be adjudged at this stage, therefore, he do not deserve any indulgence.

13. Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the applicant but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application stand rejected.

14. However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same as expeditious, as possible from the date of receipt of certified copy of this order, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and Another reported in AIR 2018 (SC) 2004, if there is no legal impediment, in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicant fully cooperate in conclusion of the trial, if there is no other legal impediment.

15. Office is directed to transmit a certified copy of this order to the court concerned within a fortnight.

16. It is clarified that any observations, if any, made by this Court are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.

(Manju Rani Chauhan, J.)

Order Date :-02.07.2019

JK Yadav