Gujarat High Court

Champaben Arvindsinh Mandola vs State Of Gujarat on 9 April, 2025

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                             R/CR.RA/85/2017                              ORDER DATED: 09/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
                                     SUBORDINATE COURT) NO. 85 of 2017
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                                               CHAMPABEN ARVINDSINH MANDOLA
                                                           Versus
                                                  STATE OF GUJARAT & ANR.
                      ==========================================================
                      Appearance:
                      MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
                      NOTICE SERVED BY DS for the Respondent(s) No. 2
                      MR. HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
                      Respondent(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                                                      Date : 09/04/2025

                                                       ORAL ORDER

1. The present revision application is preferred by the

revisionist-applicant being aggrieved and dissatisfied with

the judgment and order dated 21.8.2012 passed by

learned 3rd Additional Chief Judicial Magistrate, First

Class, Godhra in Criminal Case No. 1661 of 2002

(hereinafter referred to as 'the trial Court') as well as

judgment and order dated 27.1.2017 passed by the

learned 2nd Additional Sessions Judge, Panchmahals at

Godhra (hereinafter referred to as 'the appellate Court')

in Criminal Appeal No. 28 of 2012.

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2. The brief facts leading to filing of the present

revision application is that on 17.4.2002 at about 11:30

am, Food Inspector purchased a sample of 36 pouches of

President Pure Drinking Water from the shop of the

applicant. Thereafter the sample was divided and put in

three separate clean and dry plastic bags and were sent

to public analyst, who gave a report that sample does not

confirm as per provisions of Rule 49(28) of the Prevention

of Food Adulteration Rules.

3. Subsequent to Report of Public Analyst complaint

was filed and summons were issued vide order dated

7.8.2002. Thereafter, charge was framed against the

present applicant under Sections 16, 16(1-A), 1 of the

Prevention of Food Adulteration Act (hereinafter referred

to a 'the Act'), below Exh-46. Plea of the applicant was

recorded below Exh-47. At the end of the trial, after

perusing the material on record, the 3rd Additional Chief

Judicial Magistrate, First Class, Godhra vide judgment

and order dated 21.8.2012 in Criminal Case No. 1661 of

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2002 was pleased to convict the applicant for the offences

under Section 16 read with Section 7(2) of the Act as

well as Section 16 read with Section 7(1), (2), (3), (4) and

(5) of the Act.

4. Being aggrieved and dissatisfied by the order passed

by the learned Judicial Magistrate, First Class, Godhra,

the applicant preferred appeal being Criminal Appeal No.

28 of 2012, wherein the learned appellate Court vide

judgment and order dated 27.1.2017, quashed and set-

aside the sentence for offence under Sections 7(4) and

7(5) of the Act but confirmed the conviction qua the other

Sections. The order passed by the learned appellate Court

has resulted into filing of the present revision application.

5. At the outset, Mr. P.P. Majmudar, learned advocate

for the revisionist-applicant stated that the only case

against the present applicant is now with regard to mis-

branding of the goods. The case was registered in the

year 2002. Even though there are concurrent findings

with the Courts below, the Prevention of Food

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Adulteration Act, 1954 is repealed by introduction of

Food Safety and Standards Act, 2006 wherein Section 52

provides a maximum penalty of Rs.3,00,000/- for

misbranded food.

6. Mr. Majmudar, learned advocate relying upon the

order passed by the Hon'ble Apex Court in M/s. A.K.

Sarkar & Co. & Anr. v. The State of West Bengal & Ors,

reported in (2024) 3 SCR 356 has submitted that this

matter is squarely applicable to the facts of the present

case.

7. Further, according to Mr. Majmudar, learned

advocate for the applicant, even this Court looking to the

provisions of Food Safety and Standards Act, 2006 as

well as order passed by the Apex Court in M/s. A.K.

Sarkar & Co. & Anr. v. The State of West Bengal & Ors

(Supra) in Criminal Revision Application No. 565 of 2015,

has observed that it would be in the fitness of things that

the sentence imposed upon is modified to the extent of

imposing fine which may be deposited before the learned

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trial Court.

8. Mr. Hardik Soni, learned Additional Public

Prosecutor was not in dispute to counter this proposition.

9. Having heard learned advocate for the revisionist-

applicant as well as learned Additional Public Prosecutor,

it can be observed that the facts in the case of M/s. A.K.

Sarkar & Co. & Anr. v. The State of West Bengal & Ors

(Supra), are squarely applicable wherein it is observed as

under:

"9. The Prevention of Food Adulteration Act, 1954 was repealed by the introduction of the Food Safety and Standards Act, 2006 where Section 52 provides a maximum penalty of Rs.3,00,000/- for misbranded food. There is no provision for imprisonment.

The provision, which is presently applicable, is as follows :

"52. Penalty for misbranded food. (1) Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees. (2) The Adjudicating Officer may issue a

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direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed."

Whether the appellant can be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law? This Court in T. Barai v. Henry Ah Hoe (1983) 1 SCC 177, had held that when an amendment is beneficial to the accused it can be applied even to cases pending in Courts where such a provision did not exist at the time of the commission of offence. It was said as under:-

"22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is

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no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense."

A reference to the above case was given by this Court in Nemi Chand v. State of Rajasthan (2018) 17 SCC 448 where six months of imprisonment awarded under the Act was modified to only a fine of Rs.50,000/-.

The above principle was applied by this Court again in Trilok Chand v. State of Himachal Pradesh, (2020) 10 SCC 763 and the sentence of three months of imprisonment and Rs.500/- of fine for misbranding under the Act, 1954 was modified to that of only a fine of Rs.5,000/-.

10. The present appellant no.2, at this stage, is about 60 years of age and the crime itself is of the year 2000, and twenty- four years have elapsed since the commission of the crime. Vide Order dated 06.08.2018, this Court had granted exemption from surrendering to appellant no.2. Considering all aspects, more particularly the nature of offence, though we uphold the findings of the Courts below regarding the offence, but we hereby convert the sentence of appellant no.2 from three months of simple imprisonment along with fine of Rs.1,000/- to a fine of Rs.50,000/- (Rupees Fifty Thousand only). The sentence of appellant no.1 which is for a fine of Rs.

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2000/- is upheld. The amount shall be deposited with the concerned Court within a period of three weeks from today. Accordingly, the appeal is partly allowed".

10. This issue has also categorically been relied upon by

this Court in Criminal Revision Application No. 565 of

2015, wherein paras-5, 6 and 7 read as under:

"[5.0] Having heard Shri Anurag Rathod, learned advocate appearing for the petitioner, Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of respondent no.1 and Ms. Dilbar Contractor, learned advocate appearing on behalf of respondent no.2 and considering the facts and circumstances of the case, more particularly, when the charge against the petitioner is only of substandardization of the goods and that original accused was convicted for the offence under Section 16 of the Act and under Section 2(ia)(a)

(m)(f) and Section 7(1), 7(5) read with Rule 5, considering the decision of the Hon'ble Supreme Court in the case of Nemi Chand (Supra) and amendment in the Act by Central Amendment Act 34 of 1976 whereby Sections 51 and 52 have been added and under said Sections only fine is leviable, decision of the Hon'ble Supreme Court in the case of Nemi Chand (supra) squarely applies.

[6.0] In the case of Nemi Chand, (supra), the Hon'ble Supreme Court has considered similar request and has observed as under:

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"2. It is not in dispute that the charge against the appellant was only of sub-standardization of goods. Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant, submits that though the appellant has some prima facie case even on merits, he would be giving up the plea on merits and his only submission is about the sentence which has been imposed by the courts below. He has, in this behalf, argued that there has been an amendment in the Act by the Central Amendment Act 34 of 1976 whereby Section 16A was added and under the said section, only a fine is leviable. He has drawn our attention to the judgment of this Court in "T. Barai V. Henry Ah Hoe and Another" [1983 (1) SCC 177] wherein this Court held that since the amendment was beneficial to the accused persons, it can be applied even with respect to earlier cases as well which are pending in the Court. In the said judgment, the Court held as under :-

"22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced

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punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th Edn., at pp. 388-89: A retrospective statute is different from an ex post facto statute. "Every ex post facto law...." said Chase, J., in the American case of Calder v. Bull "must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the

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purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime."

From the facts of the present case, we have no doubt in mind that the aforesaid judgment squarely applies thereon. This appeal is, therefore, partly allowed and the sentence imposed upon the appellant is modified by imposing fine of Rs. 50,000/- which shall be deposited within two months with the trial court. On deposit of the aforesaid amount, the bail bonds furnished by the appellant shall be discharged."

[7.0] Under the circumstances, present Criminal Revision Application is partly allowed. The sentence imposed upon the petitioner by the learned trial Court confirmed by the learned appellate Court is hereby modified by imposing fine of Rs.30,000/- (Rupees Thirty Thousand only), which shall be deposited before the learned trial court within a period of four weeks from today. On deposit of the aforesaid amount, bail bond furnished by the petitioner accused shall be discharged. Rule is made absolute to the aforesaid extent. Direct service is permitted."

11. The Central Act i.e. Food Safety and Standards Act,

2006 has reduced the punishment to maximum fine of

Rs.3,50,000/-. Thus, under the circumstances, present

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Criminal Revision Application is partly allowed. The

sentence imposed upon the applicant by the learned trial

Court confirmed by the learned appellate Court is hereby

modified by imposing fine of Rs.50,000/- (Rupees Fifty

Thousand only), which shall be deposited before the

learned trial court within a period of four weeks from