Madhya Pradesh High Court
M/S Nirma Ltd . Survey No. 478 Vilalge ... vs The State Of Madhya Pradesh on 15 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 15 th OF MAY, 2024
MISC. CRIMINAL CASE No. 42949 of 2021
BETWEEN:-
M/S NIRMA LTD . SURVEY NO. 478 VILALGE
KATATALAV DISTT. BHAVNAGAR THROUGH ITS
NOMINEE UNDER PFA ACT DR. KAILASHNANDAN
PATHAK R/O 207, ASHRAM APARTMENT OPP. GULISTA
GROUND, WAGHAWADI ROAD BHAVNAGAR, GUJRAT
(GUJARAT)
.....APPLICANT
(BY SHRI MANIKANT SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR. FOOD
INSPECTOR MR. LAKHAN LAL KORI COLLECTORATE
SATNA DIST. SATNA (M.P.) (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ANUBHAV JAIN - GOVERNMENT ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 has been filed assailing the order dated
17.12.2019 passed by the learned trial court whereby the application under
Section 16-A of the Prevention of Food Adulteration Act 1954 (hereinafter to
be referred as the Act of 1954) has been rejected.
2. It is the case of the petitioner that he is facing prosecution in the court of
CJM Satna for offence punishable under Section 7(1)/16, 7(iii)/16 of the Act of
1954 on the basis of the complaint instituted by the Food Inspector. As per the
complaint, on 15.01.2010 the Food Inspector collected samples of some
articles including 'Nirma Shuddh Salt' from the shop of petitioner No.2 & 3 viz.,
Gyanchand Gupta General stores, which was found to be substandard. After
receiving the report the complainant issued notices to petitioners No.1 & 4 as
the petitioner No.1 is the authorized nominee of the Nirma Company and
petitioner No.4 is the authorized dealer of the company known as M/s Sharda
Traders, Satna.
3. During pendency of the trial the petitioner filed an application for
compounding of offence in view of Section 16-A of the Act of 1954 and
prayed for award of fine. It is argued that the aforesaid section has been
inserted to point out that a proceedings under the Act of 1954 should be tried
summarily and if the aforesaid section has been added in view of the central
amemdment that which reduces the punishment for offence punishable under
the aforesaid section. It is argued that the proceedings are to be tried as a
summary proceeding. Once she is ready to accept her guilt and is ready for
compounding of the offence then the learned tried court should have
considered the application.
4. He has placed reliance upon the judgment passed by the Supreme Court in
the case of Nemi Chand v. State of Rajasthan Criminal Appeal No.214 of 2016
(arising out of SLP (Criminal) No.2148 of 2013) dated 10.03.2016. It is argued
that the Hon'ble Supreme Court after conviction of the petitioner in that case
has considered the aspect of amended Section 16-A of the Act of 1954 and has
compounded the offence. In the present case the trial is still pending. It may be
at an advance stage by the fact remains that the proceedings can be drawn up
by the court in terms of Section 16-A of the Act of 1954 once she accepts the
guilt.
5. Per contra counsel appearing for the State has vehemently opposed the
contentions stating that the trial is at the advance stage. While considering the
application the trial court has observed that virtually trial is at the stage of
conclusion and the statements of witnesses have already been recorded.
Therefore, it will not be feasible to consider the application which has been filed
belatedly.
6. The fact remains that by the insertion of central amendment i.e. Section 16-
A was made in the Act of 1954 itself to facilitate compounding of offences if at
very inception the accused is willing to compound the offence. Section 16-A of
the Act of 1954 reads as under -
"16-A. Power of Court to try cases summarily - Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), all offences under sub-section (1) of section 16 shall be tried in
a summary way by a Judicial Magistrate of the first class specially
empowered in this behalf by the State Government or by a
Metropolitan Magistrate and the provisions of sections 262 to 265
(both inclusive) of the said Code shall as far as may be, apply to such
trial:
Provided that in the case of any conviction in a summary trial
under this section, it shall be lawful for the Magistrate to pass a
sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the
course of, a summary trial under this section it appears to the
Magistrate that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed or
that it is for any other reason, undesirable to try the case summarily,
the Magistrate shall after hearing the parties, record an order to that
effect and thereafter recall any witness who may have been examined
and proceed to hear or rehear the case in the manner provided by the
said Code."
7. It is not disputed that in the present case the proceedings of the trial are at
an advanced stage. The fact remains that the Hon'ble Supreme Court in the case
of Nemi Chand (supra) has exercised Section 16-A and has directed for
compounding of offence even after conviction. The aspect of beneficial
amendment in favour of the accused was taken note off by the Hon'ble
Supreme Court. The Hon'ble Supreme Court has held as under -
"3. ...
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." 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.
8. The Hon'ble Supreme Court in the case of T. Barai v. Henry Ah Hoe and
another : 1983 (1) SCC 177 has considered the aspect and has held that since
the amendment was beneficial to the accused persons, it can be applied even
the respect to earlier cases as well which are pending in the Court. The court
has held as under -
"22. It is only retroactive criminal legislation that is prohibited under
Art. 20(1). The prohibition contained in Art. 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 s. 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."
9. Under these circumstances the rejection of application under Section 16-A
of the Act of 1954 by the trial Court is unjustified. The impugned order passed
by the learned trial Court is set aside. The matter is remanded back to the trial
court to re-consider the application filed under Section 16-A of the Act of 1954
and pass a fresh order. As the accused has accepted his guilt the proceedings
of compounding the offence in terms of Section 16-A of the Act of 1954 be
considered by the trial court and case be tried as a summary proceedings.
10. In view of above, the application is allowed and disposed off. No order
as to costs.
(VISHAL MISHRA)
JUDGE
LR
