Himachal Pradesh High Court

State Of H.P vs Anubhav Awasthi on 9 October, 2023

Bench: Rakesh Kainthla

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 230 of 2009


                                              Reserved on: 28.09.2023
                                              Date of Decision: 09.10.2023





    State of H.P.                                                                 ...Appellant.
                                     Versus





    Anubhav Awasthi                                                              ...Respondent.

    Coram

Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.

For the Appellant : Mr. R.P. Singh, Deputy Advocate General.

For the Respondent : Mr. Mahender Singh Kanwar.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 28.4.2009, passed by learned Special Judge (Forests),

Shimla, vide which the respondent (accused before the learned

Trial Court) was released on probation. (The parties shall

hereinafter be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience).

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2. Briefly stated, the facts giving rise to the present

appeal are that the Food Inspector presented a complaint before

the learned Trial Court against the accused and other persons

for the commission of an offence punishable under Section

16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in

short 'PFA Act'). It was asserted that the complainant inspected

the premises of M/s Clarks Hotel, The Mall, Shimla on 3.12.2002,

at around 1.00 PM and found one P.D. Shukla conducting the

business of the hotel. He had three sealed bottles of 500 gms

each of Sego Chamba Honey on a wooden shelf, in his

possession, which were kept for sale to the general public. The

Food Inspector disclosed his identity and issued a notice (Ex.P-

1) declaring his intention to take the sample of Sego Chamba

Honey for analysis. Food Inspector purchased three sealed

bottles of Sego Chamba Honey each weighing 500 gms. on

payment of ₹240/- as samples for analysis. A receipt (Ex.P-2)

was obtained. P.D. Shukla disclosed that he had purchased the

article of foods from M/s Kahan Chand and Sons Agency Pvt. Ltd.

vide Bill No. 12501, dated 11.01.2002 (Ex.P-3). A copy of the

notice (Ex.P-1) was also sent to Kahan Chand and Sons. The

bottles were separately labelled and wrapped into a thick paper.

A paper slip bearing Code and Serial No. of LHA MC Shimla, S-

11/2531 was affixed with gum from top to bottom on each sample

packet. The paper slip was signed by LHA, MC Shimla and was

issued to the Food Inspector. Samples were fastened with strong

thread and sealed with a sealing wax. At least four seal

impressions were put on each packet and all the knots were

covered with seal. Signatures of the accused were taken in such a

manner that they appeared on paper slips and wrappers. Vijay

Kumar (PW-5) and Charan Dass (PW-4) witnessed the

proceedings. A Panchnama (Ex.P-4) was prepared which was

signed by the witnesses, accused and the Food Inspector. One of

the samples was sent to Public Analyst, Kandaghat along with

Form-VII (Ex.P-5) through Charan Dass. One copy of Form-VII

was sent separately in a sealed packet, sealed with an

impression (Ex.P-6). The remaining two packets of the sample

along with two copies of the memo and Form-VII were

deposited with LHA, MC Shimla for record vide letter (Ex.P-7).

The receipt (Mark-X) was issued by the Public Analyst. Public

Analyst issued a report (Ex.P-8), stating that the month and

year up to which the product was best for consumption was not

mentioned on the label. The fructose glucose ratio was 0.86

against the minimum prescribed standard of 0.95. Chief Medical

Officer, Shimla was empowered to give written consent under

Section 20 of the PFA Act. All the documents along with a report

of analysis were produced before the CMO, Shimla for obtaining

the written consent with a letter (Ex.P-10). Chief Medical

Officer, Shimla saw the documents and signed them. He found

that the case was fit to launch a prosecution. He issued the

sanction (Ex.P-11). The Food Inspector filed a complaint before

the Court and sent the notice to the accused along with a copy of

the report of the Analyst.

3. The Court summoned accused Nos. 1 to 3. Accused No.

3 applied to implead the present appellant as accused No. 4,

which was allowed. The notice of accusation was put to the

accused for the commission of an offence punishable under

Section 16(1)(a)(i) of the PFA Act. They pleaded not guilty and

claimed to be tried.

4. The complainant examined himself (PW-1), R.D.

Sharma, Dealing Assistant (PW-2), Naresh Kumar, Dealing

Assistant (PW-3), Charan Dass (PW-4) and Vijay Kumar (PW-5).

5. The accused P.D. Shukla admitted that he was the

Store in charge of M/s Clarks Hotel, Shimla and the Food

Inspector had purchased three bottles of honey from him. He

admitted that he had disclosed to the Food Inspector that the

honey was purchased from Kahan Chand and Sons. He stated

that the samples were taken in the same condition in which they

were purchased from accused no. 3. Similar statement was made

by Raman Khanna (accused no. 2). Accused No. 3 Naresh

Kanghari also admitted that samples were purchased by Food

Inspector. He stated that he had sold the honey to accused no.1

and 2 in the same condition in which he had purchased it from

accused no. 4. The accused No. 4 stated that he had sold the

honey to accused no. 3 but he was not aware whether the sample

was misbranded or adulterated. No defence was sought to be

adduced by the accused.

6. The learned Trial Court held that the prescribed

standard of Fructose and glucose ratio in honey is not less than

95% by mass but the ratio was 0.86, which was less than the

prescribed standard. The samples were sold in the same

condition in which they were purchased and since these were

sold by accused no. 4 to accused no. 3 who had supplied them to

accused no. 1 and 2; therefore, only accused no. 4 is liable and

not the other accused persons. The sanction was proper. The

case was duly supported by the documents and the witnesses.

Hence, accused no. 4 was convicted of the offence punishable

under Section 16(1)(a)(i) of the PFA Act and the other accused

persons were acquitted. The Accused No. 4 was sentenced to

undergo simple imprisonment for six months and to pay a fine

of ₹1,000/- and in case of default, to undergo simple

imprisonment for one month for the commission of offence

punishable under Section 16(1)(a)(i) of the PFA Act.

7. Being aggrieved from the judgment and order passed

by the learned Trial Court, an appeal was filed which was

decided by the learned Sessions Judge (Forests), Shimla. Learned

First Appellate Court held that the glucose fructose ratio was

less than prescribed and the sample was adulterated. The honey

was primary food and there was nothing to suggest that some

foreign substance was added to it, which was injurious to health.

The product was misbranded as month and year were not

mentioned. The benefit of the Probation of Offenders Act was

granted to the accused.

8. Being aggrieved from the judgment and order passed

by the learned First Appellate Court, the present appeal has been

filed asserting that the learned First Appellate Court failed to

appreciate the evidence properly. The punishment for the

commission of an offence is not less than six months but the

learned First Appellate Court reduced the same by giving the

benefit of Section 4; therefore, it was prayed that the judgment

and order passed by the learned Sessions Court be set aside

while that of learned JMFC-II, Shimla be restored.

9. I have heard Mr. R.P. Singh, learned Deputy Advocate

General for the appellant-State and Mr. Mahender Singh

Kanwar, learned counsel for the respondent/accused.

10. Mr. R.P. Singh, learned Deputy Advocate General

submitted that the learned First Appellate Court erred in

extending the benefit of Section 4 of the Probation of Offenders

Act to accused no. 4. Section 20(AA) of the Prevention of Food

Adulteration Act excludes the application of Section 360 of

Cr.P.C. and Probation of Offenders Act to the cases under the

Prevention of Food Adulteration Act. This Section was ignored

by the learned First Appellate Court. Therefore, he prayed that

the present appeal be allowed and the judgment and order

passed by the learned First Appellate Court be set aside.

11. Mr. Mahender Singh Kanwar, learned counsel for the

accused no. 4 submitted that there was no error on the part of

the learned First Appellate Court; hence he prayed that the

appeal be dismissed.

12.

I have given considerable thought to the rival

submissions at the bar and have gone through the record

carefully.

13. Mr. Mahender Singh Kanwar, learned counsel for the

accused no. 4 relied upon the judgment of the Hon'ble Supreme

Court in Ram Prakash Vs. State of H.P. 1972 (4) SCC 46 to contend

that it is permissible to grant the benefit of the Probation of

Offenders Act to a person convicted of the commission of an

offence punishable under the Prevention of Food Adulteration

Act. This judgment was delivered on March 14, 1972. Section

20(AA) was added by the legislature after the delivery of this

judgment vide Amending Act 34 of 1976. This Section was

considered by this Court in Court on its motion vs Sherba ILR 1984

HP 21 and it was held that it is not permissible to grant the

benefit of the Probation of Offenders Act and Section 360 of

Cr.P.C. to a person convicted of the commission of an offence

punishable under Prevention of Food Adulteration Act. It was

observed:-

"7. Another amendment made vide amending Act No. 34 of 1976 and which is relevant for our purpose is the insertion of section 20-AA in the Act. This new section

reads:

"20-AA. Application of the Probation of Offenders Act, 1958 and section 360 of the Code of Criminal Procedure, 1973.-Nothing contained in the

Probation of Offenders Act, 1958 (20 of 1958) or

section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

8. Now the Probation of Offenders Act and section 360 Cr.P.C. confer discretionary jurisdiction on the Court to

release an offender after admonition in respect of certain specified offences. In other suitable cases where an

offender is found guilty of having committed an offence not punishable with death or imprisonment for life, the Court has been empowered under the said provisions to

release him on probation. These provisions being of general application had obviously been invoked by the Courts in appropriate cases of convictions under the Act also. The Legislature while deciding to make the penal provision in the Act more stringent and deterrent and to deprive the Court of its discretion to award sentence lesser than that prescribed for certain offences, also decided to strip off the Court of its power to allow the benefit of section 360 Cr. P.C. and the Probation of Offenders Act to the offenders under the Act. It was with the same intention of making the penal provisions more

deterrent that a special provision in the form of section 20-AA was inserted in the Act. It is well recognized rule of interpretation of statutes that where special and general

.

provisions on the same subject are found contained in

different enactments of the same legislature, a case falling within the purview of special provision must be governed by that provision alone and not by the terms of

the general provision. This rule would be countenanced all the more where the special provision is found in a later enactment.

9. In view of the legal provisions discussed above, the

position that emerges is that after the enactment of Act No. 34 of 1976, the special provision found in section 20- A A of the Act clearly interdicts the Court from applying either of the two provisions, namely, Probation of

Offenders Act and section 360 of the Code of Criminal

Procedure to prosecution under the Act unless the offender is below 18 years of age and (k) a person found guilty of having committed an offence punishable under section 16 (1-A) of the Act must be sentenced to

imprisonment for a term which may extend to six years but shall not be less than one year and also to pay a fine which shall not be less than two thousand rupees.

10. The learned counsel for the respondents cited some

authorities of the Supreme Court where the benefit of the Probation of Offenders Act had been allowed to the offenders under the Act. In all such cases, the offence had

been committed prior to the enforcement of Act No. 34 of 1976 when as observed earlier there was no bar for the Court to apply the provisions of the Probation of Offenders Act as also section 360 Cr. P.C. to the prosecution under the Act. The learned counsel could not cite any authority where such benefit had been allowed to an offender under the Act in respect of an offence committed after the insertion of section 20-A A in the Act."

14. A similar view was taken by the Hon'ble Supreme

Court in Babu Ram v. State of Haryana, 1987 Supp SCC 12: 1987 SCC

(Cri) 610, wherein it was observed at page 12:-

"2. The appellant was convicted under Section 16(1)(a)(i)

of the Prevention of Food Adulteration Act. The facts are not in dispute. The respondent has been sentenced to 6 months rigorous imprisonment and to pay a fine of ₹ 1000. Notice was issued confined to the question of

sentence. The learned counsel argues that this is a fit case where the appellant should be admitted to probation. On the other hand, Mr. Mahajan for the respondent points out the provision in Section 20-AA in support of his

submission that the Special Act excludes application of

the Probation of Offenders Act. We are inclined to agree with him that the special provision made in the Prevention of Food Adulteration Act overrides the

provision of the Probation of Offenders Act and therefore the appellant will not be entitled to the benefit thereof. Counsel for the appellant thereafter argued that the

minimum sentence, though 6 months, could be reduced to 3 months in specific cases for good reasons.

3. We are satisfied that this is a case where this Court should reduce the sentence. The appeal is partly allowed

and the sentence of imprisonment is reduced to three months. The fine is said to have already been paid. The appellant will now surrender to undergo the reduced term of imprisonment."

15. This position was reiterated in State of Punjab v.

Mithu Singh, (1988) 3 SCC 607: 1988 SCC (Cri) 861, wherein it was

held at page 608:-

"4. The High Court in our view, has committed a serious error in going against the mandate of Section 20-AA of the Prevention of Food Adulteration Act. Section 20-AA

.

reads:

"Nothing contained in the Probation of Offenders Act, 1958 or Section 360 of the Code of Criminal

Procedure, 1973 shall apply to a person convicted of an offence under this Act unless that person is under 18 years of age."

5. It is clear from these provisions that the Probation of

Offenders Act, 1958 or Section 360 of the Code of Criminal Procedure shall not apply to a person convicted of an offence under the Prevention of Food Adulteration Act unless the person is under 18 years of age. The High

Court, however, extended the benefit of the said

provisions to the accused since he committed the offence before the said amendment."

16. Heavy reliance was placed upon the judgment of the

Hon'ble Delhi High Court in Rakesh Kumar vs. State 2001 Cr.L.J.

2978, wherein the sentence was commuted to a fine. However,

keeping in view the fact that the legislature has provided the

minimum sentence, it is not permissible to impose the sentence

of fine and to follow this judgment.

17. Thus, the learned First Appellate Court erred in

extending the benefit of the Probation of Offenders Act in view

of the prohibition contained in Section 20(AA) of the Prevention

of Food Adulteration Act. Hence, the judgment passed by the

learned First Appellate Court cannot be sustained.

18. The Learned Trial Court had sentenced the accused