Bombay High Court

Prakash Parmanand Gurbakshani vs The State Of Maharashtra on 22 October, 2024

2024:BHC-AUG:25934
                                                                          revn-40-2006 judg.odt
                                                   (1)


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                         CRIMINAL REVISION APPLICATION NO. 40 OF 2006

                 Prakash Parmanand Gurbakshani,,
                 Age : 35 years, Occ. Business,
                 Proprietor of M/s. Prakash Kirana Stores,
                 Khanapur, Taluka Raver,
                 District Jalgaon.                                       ..Applicant

                       VERSUS

                 The State of Maharashtra
                 (through the Food Inspector,
                 Food and Drug Administration,
                 Jalgaon).                                               ..Respondent
                                                    ...
                      Advocate for Petitioners : Ms. Monica Dahat h/f Mr. Joydeep
                                                Chatterjee
                         APP for Respondent/State : Ms. Vaishali S. Choudhari
                                                    ...
                                                   CORAM : S.G. MEHARE, J.

                                            RESERVED ON : OCTOBER 09, 2024

                                        PRONOUNCED ON : OCTOBER 22, 2024

                 JUDGMENT :

1. The applicant has impugned the judgment and order of

the learned Judicial Magistrate First Class, Raver passed in R.C.C.

No.155 of 1993 dated 23.02.2001 and the judgment and order of the

learned 2nd Additional Sessions Judge, Jalgaon in Criminal Appeal

No.15 of 2001 dated 03.02.2006. Both Courts convicted the applicant

for the offence punishable under Section 7(i) r/w Section 16 of the

Prevention of Food Adulteration Act, 1954 ('Act of 1954' for short).

The applicant was sentenced to suffer R.I. for one year and directed to revn-40-2006 judg.odt

pay a fine of Rs.1,000/- in default to pay the fine amount, he was to

suffer R.I. for 15 days.

2. The prosecution case in brief was that the applicant was

running a grocery shop. The Food Alteration Officer/complainant

visited his shop with panchas on 07.08.1992. The cotton oil seed was

stored in the backside of his shop. The complainant expressed his

intention to purchase and draw the samples from the cotton oil seed

and did local formalities. Accordingly, the samples were taken from

the container of cottonseed oil. Those were divided into three parts

and sealed. The necessary notices as required under the Act of 1954

were served to the applicant. On 10.08.1992, the complainant sent

the samples for analysis to the State Food Laboratory. On the same

day, he handed over two sealed samples to the Local Health Authority.

On 15.09.1992, he received the report from the State Food Laboratory

with a remark that the sample did not conform to the standard as per

Item No. A.17.02 of the Prevention of Food Adulteration Rules, 1955.

On 14.09.1993, he had received the sanction from the Assistant

Commissioner (Maharashtra State), Jalgaon on 24.09.1993. On

09.11.1993, he filed the complaint to the Court. On the same day, the

Court issued the process to the accused. The Local Health Authority

addressed a letter with the laboratory to the applicant intimating to

him that he may apply to the Court for sending another sample for

the test to the Central Food Laboratory within ten days of the receipt revn-40-2006 judg.odt

of the intimation. The accused appeared on 13.01.1994 before the

Court and on the same day applied to the Court for sending the

samples to the Central Food Laboratory. The Court received the

report of the Central Food Laboratory conforming the earlier analysis

report of the State Food Analyst Laboratory. The Court appreciating

the evidence held the accused guilty as mentioned above.

3. The learned counsel for the applicant has vehemently

argued that the panch witness to the memorandum panchnama

Exhibit-30 was dead. Even, another panch witness alive was not

examined. Therefore, it violated Section 10(7) of the Act of 1954 and

the seizure of the samples was not proved. It was fatal to the

prosecution.

4. As against this, the learned APP has vehemently argued

that there was no second witness to the memorandum panchnama.

However, the sole panch witness was dead. Therefore, the

complainant had proved that memorandum panchnama. Hence, it

cannot be said that the said memorandum panchnama Exhibit-30 was

not proved.

5. Section 10 of the Act of 1954 speaks of the Powers of the

Food Inspectors. Sub-section (7) of Section 10 provides 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 [call

one or more persons to be present at the time when such action is revn-40-2006 judg.odt

taken and take his or their signatures]. The section provides for

calling one or more persons to be present as panch witnesses.

Therefore, calling only one witness to the memorandum panchnama

is not bad in law. When the sole panch was dead or the panchas do

not support the prosecution, the complainant or the person who

prepared such panchnama may prove such panchnamas and it may be

received in evidence where the substantial evidence against the

accused is clinching and acceptable. Therefore, this Court does not

find any substance in the argument of the learned counsel for the

applicant. The Court also does not find that Exhibit-30 bear the

signatures of another panchas. The so-called another person Mr.

Tadwi was not the panch to the memorandum panchnama Exhibit-30.

In view of the facts, the argument of the learned counsel for the

applicant cannot be accepted that the memorandum panchnama

Exhibit-30 was not proved and it violated Section 10(7) of the Act of

1954.

6. The next limb of the argument of the learned counsel for

the applicant was that the complainant had demanded the applicant a

bribe of Rs.5000/-. He did not pay, hence, he brought the samples

with him and lodged a false case against him. However, she could not

produce a complaint/report against the complainant for demanding a

bribe of Rs.5,000/-. In the absence of any cogent evidence, bare revn-40-2006 judg.odt

words blaming the public servant for asking for a bribe and lodging a

false case against him cannot be accepted.

7. She further argued that the complaint was delayed by

one year. Therefore, the applicant could not get an opportunity to

get the samples tested from the Central Food Laboratory in time. In

the meantime, the shelf-life of the samples/cottonseed oil was over.

So naturally, the test before was against came adverse.

8. Section 11 of the Act of 1954 imposes the duty on the

Food Inspector to serve a notice in writing to the person from whom

the samples are taken that he intends to collect the samples analyzed

and he was to send one of the parts of the analysis to the public

analyst under the intimation to the Local Health Authority. Sub-

section (2) of Section 13 of the Act of 1954 imposes a duty upon the

Local Health Authority to forward a copy of the result of the analysis,

if it is adverse, to the accused or the person from whom the samples

are collected, after instituting prosecution against such person. Then,

the accused may within ten days from the receipt of the copy of the

receipt may apply to the Court for getting the samples analyzed by the

Central Food Laboratory. This section does not provide for waiting till

the Court issues the summons to the accused. The complainant had

addressed a letter to the Local Health Authority dated 10.11.1993

that the prosecution had been filed against the applicant informing

him that the next date was 08.12.1993. The Assistant Commissioner, revn-40-2006 judg.odt

Food and Drugs, Jalgaon who was also the Local Health Authority had

issued a letter to the applicant dated 12.11.1993 which the applicant

had received on 17.11.1993 informing him that he may apply to the

Court for sending the second sample to the Central Food Laboratory

within ten days. However, the record does not reveal that after the

receipt of this notice on 17.11.1993, the applicant applied to the

Court to send the samples to the Central Food Laboratory. He

appeared in the Court on 13.01.1994 and the same day applied for

sending the samples to the Central Food Laboratory. These facts

establish that the applicant did not exercise his right under Section

13(2) of the Act of 1954 within ten days. Therefore, she could not

argue that the samples were sent to the Central Food Laboratory

belatedly after the shelf-life of the cottonseed oil was over. Be that as

it may, even the samples were sent belatedly as per the request of the

applicant. Again an adverse report was received that the samples

were not as per the required standard.

9. The learned counsel for the applicant has vehemently

argued that the applicant was in jail. He is suffering from various

ailments. Therefore, his sentence be reduced.

10. Section 16 of the Act of 1954 provides for the penalties.

Different penalties have been provided for the different offences as

provided in the Act. The applicant was tried for the offence

punishable under Section 2(ia)(a), 2(ia)(m) of the Act of 1954. Sub-

revn-40-2006 judg.odt

clause (ia) defines the 'adulterated articles of food'. Sub-clause (a) of

that sub-clause is for selling of such adulterated articles by the vendor

that were not of the nature, substance or quality demanded by the

purchaser and is to his prejudice, or is not of the nature, substance or

quality which it purports or is represented to be. Sub-clause (m) from

the same section is about the quality or purity of the article falling

below the prescribed standard or its constituents are present in

quantities not within the prescribed limits of variability but which

does not render it injurious to health. The laboratory reports were

that the samples were not of the required standard. However, it was

not injurious to health. The punishment as per Section 16 for the

offences committed under sub-clause (a) or (m) of Section 2 of the

Act 1954 shall be not less than six months but it may extend to three

years, and with a fine which shall not be less than one thousand

rupees. The proviso to that section provides that if the offence is

under sub-clause (i) of clause (a) and with respect to an article of

food, being primary food, which is adulterated due to human agency

or with respect to an article of food which is misbranded within the

meaning of sub-clause (k) of clause (ix) of Section 2; or if the offence

is under sub-clause clause (a) but not being an offence with respect to

the contravention of any rule made under clause (a) or clause (g) of

sub-section (1-A) of section 23 or under clause (b) of sub-section 2 of

Section 24, the Court may, for any adequate and special reasons to be revn-40-2006 judg.odt

recorded, impose a sentence of imprisonment for a term which shall

not be less than three month but it may extend to two years and fine

which shall not be less than five hundred rupees. The offence

punishable under sub-clause (m) of Section 2 does fall under the

above proviso clause. Therefore, the sentence of imprisonment for a

term not less than six months could not be reduced to three months.

The applicant as argued had undergone the sentence for sixty days

which was the minimum punishment, therefore, also the sentence as

provided under the first proviso can not be reduced. In the

circumstances, there appears no error of law in imposing the penalty

against the applicant by the Trial Court as well as the Appellate Court.

11. In the alternative, she had prayed for extending the

benefit of the Probation of Offenders Act. The documents placed on

record support her contention that the applicant is suffering from

various ailments and probably, he may be bedridden. There are no

complaints against him that before or after the present crime, he was

the accused or convicted of the identical offence.

12. The Hon'ble Supreme Court in the case of Tarak Nath

Kesari Vs. State of West Bengal, Criminal Appeal No.1444 of 2023

(Arising out of SLP (Cri) D No.28476 of 2018) dated 10.05.2023,

held that even if there is a minimum sentence provided in Section 7 of

the Essential Commodities Act, in our opinion, the appellant is

entitled to the benefit of probation, the EC Act, being of the year 1955 revn-40-2006 judg.odt

and the Probation of Offenders Act, 1958 being later. Even if a

minimum sentence is provided in the EC Act, 1955, the same will not

be a hurdle for invoking the applicability of provisions of the

Probation of Offenders Act, 1958. In that case, the Hon'ble Supreme

Court has referred the case of Lakhvir Singh Vs. The State of Punjab

and Ors, (2021) 3 SCC 763.

13. In view of the law laid down by the Hon'ble Supreme

Court in the case of Tarak Nath Kesari (supra), there appears no

impediment to exercise the powers under Section 4 of the Probation

of Offenders Act, though the minimum sentence has been provided in

the Act. The Hon'ble Supreme Court laid the law that the benefits of

the Probation of Offenders Act could even be extended for the offence

punishable under the Prevention of Food Adulteration Act, 1954.

Considering the deteriorating health of the applicant and his

subsequent conduct after conviction, it is expedient to release him on

probation of good conduct. Hence, the following order :

ORDER

(i) Criminal Revision Application is partly allowed.

(ii) The judgment and order of the learned Judicial Magistrate

First Class, Raver passed in R.C.C. No.155 of 1993 dated

23.02.2001 and the judgment and order of the learned 2 nd

Additional Sessions Judge, Jalgaon in Criminal Appeal No.15 of

2001 dated 03.02.2006, stand maintained. However, instead of revn-40-2006 judg.odt

sentencing him at once to the punishment, it is expedient to

release him on probation of good conduct.

(iii) The applicant be released on executing the bond for one

year of Rs.10,000/- (ten thousand) with an undertaking to

appear and receive the sentence when called upon during the

said period, and in the meantime, he should keep peace and

good behaviour.

(iv) The bonds as directed above be furnished before the

learned Trial Court within four weeks from today.

(v) The fine amount, if any, deposited be returned to the

applicant.

(vi) The surety and bail bonds stand cancelled and the surety

is discharged.

(vii) Record and proceeding be returned to the learned Trial