State vs Jagdish Grover
2011 Latest Caselaw 5046 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 26/2011
%                                          Decided on: 13th October, 2011

       STATE                                             ..... Appellant
                             Through:   Mr. Mukesh Gupta, APP.
                    versus

       JAGDISH GROVER                                      ..... Respondent
                    Through:            Ms. Aasha Tiwari, Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?

MUKTA GUPTA, J. (ORAL)

Crl.M.A. 159/2011

For the reasons stated in the application the delay of 56 days in filing

the present appeal is condoned.

Application is disposed of.

CRL.A. 26/2011

1. The present appeal is directed against the judgment dated 5 th August,

2010 passed by Learned Additional Sessions Judge in CRL.A. 85/09

whereby upholding the conviction of the Respondent for offences punishable

under Section 16 (1A) read with Section 7 of P.F.A Act the sentence

awarded by the Learned Metropolitan Magistrate of Rigorous Imprisonment

for one year was reduced to six months and a fine of Rs. 5,000/- in default of

payment of fine to further undergo S.I. for one month.

2. Learned APP for the State contends that the impugned judgment is

contrary to law and facts of the case. There is no dispute that the sample

was found to be adulterated with the presence of synthetic Colour tartrazine.

The punishment prescribed under Section 16 (1A) of P.F.A. Act is for a term

which shall not be less than one year but which may extend to 6 years and

with fine which shall not be less than Rs. 2000/-. Thus, the impugned order,

reducing the sentence of the Respondent to a term less than the minimum

prescribed punishment is illegal.

3. Per contra learned counsel for the Respondent contends that there is

no illegality in the impugned order and the learned Additional Sessions

Judge has correctly reduced the sentence of the Respondent. Learned

counsel for the Respondent further contends that against the impugned order

dated 5th August, 2010, the Respondent had also filed a petition being

Crl.Rev.P. No. 420/2010 wherein this Court upholding the conviction

further reduced the sentence to the period already undergone and enhanced

the fine to Rs. 50,000/-. Thus this Court cannot now modify the order

passed by this Court in another petition.

4. I have heard learned counsel for the parties and perused the record.

Briefly the facts of the prosecution case are that on 6th October, 2001 at

about 5.30 PM Food Inspector Shri N.N. Sharma purchased a sample of dal

Arhar, a food article for analysis from Respondent Jagdish Grover, who was

found carrying on the business in name and style of M/s. Inder Lal Store,

S.No. 31, Parda Bagh, Daryaganj, Delhi-06 where said article was found

stored for sale for human consumption. The sample consisted of

approximately 750 gms of the food article which was taken from an open

gunny bag, bearing no label declaration. The sample was taken under the

supervision/direction of SDM/LHA. The sample was taken after properly

mixing the food article with the help of clean and dry jhaba. The sample

was divided into three equal parts and each part was put in separate clean

and dry bottle and each part was packed, fastened and sealed separately as

per the provisions of the PFA Act and Rules. Vendor's signatures were

obtained on the LHA slip and the wrapper of the sample bottles. It is alleged

that before starting the proceedings, efforts were made to join the public

witnesses but none came forward. All the documents were got signed from

the Respondent and other witnesses. The sample was taken under the

supervision of local health authorities. One of the three samples was sent to

the Public Analyst with the seals intact. The other two counter-parts of the

sample were deposited with the local health authority. On analysis of the

sample, the Public Analyst found that the sample did not conform to the

standards because it was found to be coloured with synthetic colouring

matter viz. tartrazine.

5. The Respondent exercised his right under Section 13(2) of PFA Act to

get the second counter part of the sample to be analyzed from the Director

CFL who vide its certificate dated 3rd May, 2003 and opined that the sample

did not conform to the standards as it was found to be adulterated with the

synthetic colour tartrazine. Learned ACMM after recording the evidence

and statement of accused under Section 313 Cr.P.C. convicted the

Respondent as mentioned hereinabove. This order of conviction was

appealed against by the Respondent whereby learned Additional Sessions

Judge reduced his sentence as mentioned above.

6. It may be noted that the revision petition filed by the Respondent

herein was disposed of by this Court vide order dated 11 th November, 2010.

This Court in the said judgment had observed that the Respondent herein is a

patient suffering from hypertension with diabetes mellitus(type II) with

diabetic retinopathy and had already undergone almost half of the

imprisonment awarded to him and taking into account that the Petitioner had

no other criminal record, the punishment awarded to the Petitioner was

modified to the period already undergone by him with a fine of Rs. 50,000/-.

In case of default of payment of fine the Petitioner was to undergo

imprisonment for a period of three months. The present appeal has been

filed belatedly by the State and the order passed in the revision petition has

since attained finality.

7. Hon'ble Supreme Court in U.J.S. Chopra v. State of Bombay, AIR

1955 SC 633 while dealing the said issue held as under:-

"15.....When an appeal or revision by the accused is allowed, after a full hearing on notice to the respondent, the conviction and sentence must be regarded as having been put in issue and finally decided. When the accused person in the presence of the State claims an acquittal or reduction of his sentence, the State ought then and there to apply for enhancement of sentence and its failure to do so cannot but be regarded as abandonment of the claim.

The acceptance by the High Court of the appeal or revision on notice to the respondent and after a full hearing is, therefore, nothing less than a judgment of acquittal or a judgment for reduction of sentence. On the other hand, the dismissal by the High Court of an appeal or revision after such a full hearing amounts to a judgment of conviction.

In both cases the judgment is final as regards both the accused and the respondent as regards the conviction as well as the sentence in all its aspects, namely, reduction or enhancement. In that situation no further question of revision can arise at the instance of either party. There can be no further application by the accused challenging his conviction or sentence.

Nor can there be any further application by the State for enhancement of the sentence, for that question could have been and should have been raised when the accused person in the presence of the respondent prayed for acquittal or reduction of sentence and not having then been raised it cannot be raised subsequently and consequently no question can arise for the exercise of right by the accused under Section 439(6).

This result is brought about not by any technical doctrine of constructive res judicata which has no application to criminal cases but on the general principle of finality of judgments. The summary dismissal of an appeal or revision by the accused, with or without hearing him or his pleader but without issuing notice to the respondent is, so far as the accused is concerned, a judgment of conviction and confirmation of his sentence and he can no longer initiate revision petition against his conviction or sentence.

The judgment or decision is a final judgment qua the accused person, for otherwise he could go on making successive appeals or revision applications which obviously he cannot be permitted to do. But the State or other interested person who has not been served with any notice of the appeal or revision cannot be precluded, by the summary dismissal of the accused's appeal or revision, from asking for enhancement, for in that situation the State or the complainant not being present the question of enhancement was not in issue before the Court and the summary dismissal cannot be regarded as an adjudication on the question of enhancement.

That question not having been put in issue and not having been decided by the High Court, the finality attaching to the summary dismissal as against the accused does not affect the position. This, I apprehend, is the true distinction between a summary dismissal of an appeal or revision and a dismissal of it after a full hearing...."

8. Thus, keeping in view the law laid down, the fact that the impugned

order has attained finality in view of the order dated 11th November, 2010

passed by this Court in Crl.Rev.P. No. 420/2010 where the notice was

served to the State and after affording full hearing to the parties, the matter

was decided and applying doctrine of merger, the present appeal cannot be

entertained being a coordinate bench.

9. Appeal is dismissed accordingly.

MUKTA GUPTA, J.

OCTOBER 13, 2011 'vn'