Madhya Pradesh High Court
Manish Kohli vs The State Of Madhya Pradesh on 8 February, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 8 th OF FEBRUARY, 2024
CRIMINAL REVISION No. 584 of 2006
BETWEEN:-
MANISH KOHLI S/O K.L.KOHLI, AGED ABOUT 36 YEARS,
R / O SONAGIRI BHOPAL DISTRICT BHOPAL (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI ASHISH TIWARI-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH FOOD
INSPECTOR BHOPAL (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI S. M. PATEL-PANEL LAWYER)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
T his revision petition has been filed by the applicant under Section
397/401 of the Cr.P.C. being aggrieved by the judgment of conviction and
order of sentence dated 05.04.2006 passed by II Additional Sessions Judge,
Bhopal, in Criminal Appeal No.15 of 2006 (Manish Kohli vs.State of M.P.)
affirming the judgment dated 10.01.2006 passed by the JMFC, Bhopal in
Criminal Case No.1228/2005 (State of M.P. vs. Manish Kohli), whereby the
applicant has been convicted for commission of offence under Section 7(1)(A)
read with Section 16(1)(A)(i) of Prevention of Food Adulteration Act, 1954 (in
short the "PFA Act") and sentenced to undergo RI for 6 months with fine of
Rs.1000/- with default stipulations.
2. The facts of the case, in brief, are that as per prosecution story on
14.06.1993, Food Inspector H. D. Katare (PW-1) visited the grocery shop of
the applicant for inspection. During inspection, he gave notice in writing for
collecting the sample of chilli powder. He purchased 600 grams of chilli powder
in a polythene and paid the money and received the receipt of payment. After
completing all the formalities contemplated in the provisions of the Act,
collected chilli powder. Samples of chilli powder were sent for examination in
Laboratory. In examination, sample was found to be adulterated. Complaint
was filed before the trial Court. Learned JMFC convicted and sentenced the
applicant as aforementioned. Being aggrieved by the conviction and sentence,
applicant preferred appeal before the learned Sessions Judge, Bhopal which
was dismissed by appeal judgment dated 05.04.2006. Hence, this revision.
3 . Learned counsel for the applicant has submitted that though the
applicant has some prima facie case even on merits, he does not want to press
this revision and by giving up the plea on merits, his only submission is with
regard to the sentence which has been imposed by the courts below on the
ground of changes in the law. The Prevention of Food Adulteration Act, 1954
has been repealed by the Food Safety and Standard Act, 2006, w.e.f. 5.8.2011
and under the Food Safety and Standards Act, 2006, the aforesaid punishable
acts are not punishable with imprisonment and only penalty can be imposed and
the applicant / accused is entitled to get the benefit under the changes in the law
and in this regard, reliance has been placed on a judgment of Hon'ble the Apex
Court in Nemi Chand V. State of Rajasthan (2016) 1 FAC 561 (SC) and
clarification order reported as (2016) 1 FAC 203, in which the Apex court
relying on the judgment of T. Barai V. Henry Ah Hoe and another (1982
(2) FAC 362), held as under :
3. It is not in dispute that the charge against the appellant
w a s 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 be- low.
He has in this behalf, argued that there has been an amend-
ment 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' [1982 (2) FAC 362] [1983 (1) SCC 177]
wherein this Court held that since the amend- ment 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 retrospective 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 FSAT No.27/16 M/s
Buttercup Confectionery Ltd & Ors. Vs FSO Page No.
13 of 17 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 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 Crales 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 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."
And thereafter, Hon'ble the Apex court has given benefit of changes in
the law and substituted the sentence by penalty in case of conviction of the
adulteration of food.
4. Learned counsel has further placed reliance on a judgment of the
Apex court in Trilok Chand vs. State of Himachal Pradesh, passed in
criminal appeal no. 1831/2019 decided on 1.10.2019, in which the Apex court
has also placed reliance on the judgment of T. Barai (supra) and substituted the
sentence for misbranding under the PFA Act by penalty and also placed
reliance on a judgment of M. P. High Court, Indore Bench in Purushottam vs.
State of M.P. passed in CRR No. 3324/2019 decided on 19.7.2019, in which
t h e aforesaid case of Nemi Chand (supra) has been relied upon and the
sentence under the PFA Act with regard to adulteration and misbranding has
been substituted by penalty and also placed reliance on a judgment of High
Court of Gujarat in Kasnab-hai v. State of Gujarat, passed in CRR No.
662/2013 decided on 22.09.2017; on a judgment of High Court of Punjab and
Haryana in Parveen Kapoor vs.Food Inspector, Chandigarh passed in
CRR No.2975/2016 decided on 23.08.2018; on a judgment of High Court of
Delhi in State of NCT of Delhi vs. Satish Kumar (2018) 4 JCC 2111 and on
a judgment of High Court of Punjab and Haryana in Sanjay Agarwal vs.
Government Food Inspector passed in CRR No.1275/2014 decided on
15.03.2019 with regard to substitution of the sentence by penalty.
5 . Learned counsel in the light of the aforesaid judgments of the
Supreme Court and the High Courts, has submitted that in the present case,
food item was not unsafe. There was only 0.1% alleged adulteration which may
be due to weather condition and passage of time after grinding of the same and
in such cases under Sections 51 and 52 of the Food Safety and Standards Act,
2006 penalty has been provided. No separate provisions for punishment has
been made and for violation of the Act and Rules, where no separate provision
has been made, under Section 58 of the Act the provision of penalty has been
provided. Accordingly, the sentences be substituted by imposing appropriate
penalty.
6. Learned Panel Lawyer has submitted that if the sentences are
substituted by penalty then maximum penalty be imposed keeping in mind the
provisions of Section 49 of the Food Safety and Standards Act, 2006.
7 . Having considered the contentions of learned counsel for the parties
and on perusal of the record, in view of the law laid down by the Apex Court
and the High Court, considering the facts of the case, applicant is entitled to get
the benefit of changes in the law by substituting the sentence by penalty and for
the acts, the applicant has been convicted, penalty may be imposed under
Sections 51, 52 and 58 of the Food Safety and Standards Act, 2006.
Therefore, this revision is partly allowed confirming the conviction under the
aforesaid offence of PFA Act and considering the unfair advantage of the
amount, the sentence is substituted by imposing penalty of Rs.50,000/- (Rs.
Fifty Thousand) for light adulteration. The aforesaid amount shall be
deposited by the applicant within one month from today with the trial Court.
On deposit of the aforesaid amount by the applicant within the aforesaid period,
he shall be released from jail immediately. If the amount is not deposited within
stipulated period, the applicant shall undergo the sentences as imposed by the
Courts below.
8. With the aforesaid, this criminal revision is disposed of.
(DINESH KUMAR PALIWAL)
JUDGE
b
