Rajasthan High Court

Kartar Singh vs State on 21 March, 2024

Author: Praveer Bhatnagar

Bench: Praveer Bhatnagar

[2024:RJ-JP:11742]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Criminal Revision Petition No. 1217/2005

Kartar Singh son of Shri Babulal, Resident of Sherpur, Tehsil
Behror, District Alwar, Rajasthan (Presently he is in District Jail,
Alwar)
                                                                   ----Petitioner
                                    Versus
The State of Rajasthan through Public Prosecutor.

----Respondent

For Petitioner(s) : Mr.Praveen Balwada For Respondent(s) : Mr.Chitragupt Chopra, PP

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

Date of Reserve :: 31/01/2024 Date of Pronouncement :: 21/03/2024

1. The matter pertains to an incident which occurred in the year

1995 and the present criminal revision is pending since the year

2005.

2. This criminal revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred against the judgment

dated 28.11.2005 passed by learned Additional Sessions Judge

(Fast Track), Behror, District Alwar in Criminal Appeal No.50/2005,

as well as against the judgment dated 10.12.1999 passed by the

learned Additional Chief Judicial Magistrate, Behror, District Alwar

in Criminal Case No.97/96, whereby the revisionist-petitioner was

convicted and sentenced for the offence under Section 7/16 of the

Prevention of Food Adulteration Act to six months' simple

imprisonment with fine of Rs.1000/- and in case of default of

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payment of fine, to further undergo one month's simple

imprisonment.

3. Brief facts of the case are that the Food Inspector - Shri SD

Sharma filed a compliant alleging that he made an inspection on

22.04.1995 at 7.30 AM in presence of the witnesses and found

Kartar Singh, petitioner, was selling cow milk. On suspicion of

adulteration, he took sample of milk and sent the same to the

Public Analyst for testing, wherein the milk was found adulterated.

After obtaining prosecution sanction from Local (Health) Authority,

Alwar, complaint was filed against the petitioner. On the basis of

the complaint, a cognizance for the offence under Section 7/16 of

Prevention of Food Adulteration Act, 1954 (for short "the Act of

1954") was taken and proceedings were initiated. In the

proceedings, the petitioner denied the charges and claimed to be

tried. In the statement, recorded under Section 313 Cr.P.C., the

petitioner denied for the prosecution allegation and stated that he

never remained in the business of selling milk. It is also stated

that due to enmity, the witnesses named him. After hearing both

the parties, the learned trial Court passed the judgment dated

10.12.1999 and convicted & sentenced the petitioner. Being

aggrieved by the order dated 10.12.1999, passed by learned trial

Court, an appeal was filed before the Appellate Court and the

Appellate Court, based on the material and evidence available

before it, dismissed the appeal filed by the petitioner and

maintained the conviction and sentence passed by learned trial

Court. Hence, this petition.

4. Learned counsel for the petitioner submits that the Courts

below erred in passing the orders. He submits that the Courts

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below have failed to appreciate the material and evidence

available on record. He further submits that the Courts below

have not considered the statement of the petitioner recorded

under Section 313 Cr.P.C. that he is not indulged in business of

selling milk.

5. Learned counsel further submits that the Courts below have not

taken into consideration the provisions of Section 78 of Evidence

Act, as the documents, produced before the Courts below, were

photocopy and not the original one. It is further submitted that

the petitioner was not affording opportunity of hearing.

6. Learned counsel submits that there is an inordinate delay in

filing complaint. He submits that the Courts below did not consider

that provisions of Section 13(2) of the Act of 1954 have not been

complied with. He further submits that the Courts below failed to

consider that all the independent witnesses, produced by the

prosecution, were declared hostile, as they did not support the

prosecution case. In view of the above, learned counsel for the

petitioner prays that the orders dated 28.11.2005 and 10.12.1999

may be quashed and set aside.

7. Learned Public Prosecutor opposes the prayer made by

learned counsel for the petitioner.

8. I have considered the submissions made by learned counsel

for the parties and perused the material available on record.

9. In Amit Kapoor Vs. Ramesh Chander & Ors. [(2012) 9

SCC 460], the Apex Court was considering the scope of powers

granted under Section 397 of the High Court and in paragraphs 8

of the said judgment, the Apex Court observed:-

"8. Before examining the merits of the present case we

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must advert to the discussion as to the ambit and scope of the power which the Courts including the High Court can exercise under Section 397 and Section 482 of the Code. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior Court to satisfy itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the Court to scrutinise the order, which upon the face of it is a token of careful consideration and appears to be in accordance with law. If one looks into various judgements of this Court, it emerges that revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, or the material evidence is ignored or Judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but merely indicative. Each case would have to be determined on its own merits.

10. Thus in the light of the law laid down, this Court has to see

whether there is patent illegality or error of jurisdiction and

findings recorded by the courts below are perverse and against

the evidence.

11. I have gone through the Judgments passed by the courts

below and don't find any perversity in arriving at the finding that

the accused petitioner was found in possession of milk meant for

sale which on due examination found to be adulterated. Sheer

non-support of independent eyewitnesses is not enough to negate

the testimony of the food inspector particularly in the absence of

any specific allegation of previous enmity with the accused

petitioner.

12. Arguments about the non-application of mind by the

sanctioning authority are also misconceived as Exibit - P 12 is not

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a printed form but rather a detailed typed sanction accorded after

assigning the reasons. The judgment passed by Coordinate Bench

of this Court in the case of Babulal vs State of Rajasthan (1

RLW 418) is entirely different, as the prosecution sanction was

granted on a printed form and the Coordinate Bench was of the

view that such a sanction lacks application of mind.

13. The other argument that the photocopy of the Gazette

Notification was not proven and inadmissible as per section 78 of

the Evidence Act is also misplaced. The Gazette Notification dated

10.04.1986 is a certified copy and duly issued by the concerned

officer and it bears the signature of the authority. Further, under

Sections 56 and 57 of the Evidence Act, the Court can take judicial

notice of certain facts. In the absence of a specific challenge,

there is no reason for the Court to disbelieve the issuance of

Notification in the Gazette authorizing the complainant to file a

complaint.

14. As far as the non-compliance of Section 13 (2) of the Food

Safety and Standards Act, 2006 (for short "the Act of 2006") is

concerned, it is evident that after filing the analyst report a copy

of the same was sent to the accused through registered post at

his address. The postal receipt indicating the address is enough to

presume that the accused received the Food analyst report. Under

Section 114 of the Indian Evidence Act read with Section 27 of the

General Clauses Act, the Court may presume that the accused

duly received the report.

15. The Apex Court in the case of C.C. Alavi Haji Vs. Palapetty

Muhammed & Anr. [(2007) 6 SCC 555] opined that Section 27

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of the General Clauses Act gives rise to a presumption that service

of notice has been effected when it is sent to the correct address

by registered post unless and until the contrary is proved by the

addressee, service of notice is deemed to have been effected at

the time at which the letter would have been delivered in the

ordinary course of business. A similar view was taken by the Court

in the case of M/s. Madan & Co. Vs. Wazir Jaivir Chand

[(1989) 1 SCC 264]. In this case, the Apex Court, while dealing

with whether the duty of the landlord was complete by sending of

notice with reference to the presumption under Section 27 of

General Clauses Act, held that once there is a proper tender of the

demand notice at the correct address then there is service of the

demand notice in view of the presumption as per Section 27 of the

General Clauses Act. Similarly, in the case of Parimal Vs. Veena @

Bharti [(2011) 3 SCC 545], the Apex Court held that in view of

Section 114(f) of Evidence Act read with Section 27 of General

Clauses Act, there is a presumption that the addressee has

received the letter sent by registered post. However, the

presumption is rebuttable on a consideration of evidence of

impeccable character.

16. It is also a settled law that the burden to rebut the

presumption lies on the party challenging the factum of service. In

the instant case, the petitioner has not challenged the factum of

service. The registered postal receipt (Exhibit P14) shows that the

said report was sent to the petitioner's address and in absence of

any specific defence the Court may presume that the accused has

received the report. The Courts below, in their judgments, have

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dealt with the issue in detail. Further, the accused neither raised

any objection in the trial nor attempted to get sample analysed

through the Court from the central laboratory. Therefore, the

arguments raised by learned counsel for the accused-petitioner

that the petitioner did not receive a public analyst report are

without any substance. Accordingly, I do not find any perversity

and illegality in the impugned order convicting the accused-

petitioner under section 7/16 of the Act of 2006.

17. The alternative plea for reduction of sentence was analysed

in the latest pronouncement rendered in the matter of M/S A.K.

Sarkar & Co. & Anr. Vs. The State of West Bengal (Special

Leave Petition (Criminal) No.6095/2018) dated 07.03.2024

and after relying upon judgments of T. Barai Vs. Henry Ah Hoe

[(1983) 1 SCC], Nemi Chand Vs. State of Rajasthan

[(2018) 17 SCC 448] and Trilok Chand Vs. State of Himachal

Pradesh [(2020) 10 SCC 763] after taking into consideration

the provision enshrined in Article 20 of the Indian Constitution, the

Apex Court held as under:-

"All the same, the above provision does not prohibit this Court, to award a lesser punishment in a befitting case, when this Court is of the opinion that a lesser punishment may be awarded since the new law on the penal provision provides a lesser punishment i.e. lesser than what was actually applicable at the relevant time. The prohibition contained in Article 20 of the Constitution of India is on subjecting a person to a higher punishment than which was applicable for that crime at the time of the commission of the crime. There is no prohibition, for this Court to impose a lesser punishment which is now applicable for the same crime."

[2024:RJ-JP:11742] (8 of 11) [CRLR-1217/2005]

18. In the matter of T. Barai v. Henry Ah Hoe (1983) 1 SCC 177,

the Apex Court 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. The Apex Court further held that:-

"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 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."

19. In the aforesaid matter accused appellants were convicted

under section 7/16 of the Prevention of Adulteration Act for simple

imprisonment for a period of six months along with a fine of

Rs.1,000/- each, for a fine of Rs.2,000/-respectively. The Apex

Court, after taking into consideration the provisions of section 52

containing the punishment clause in the newly enacted Food

Safety and Standards Act, converted the sentence of appellant

No.2 from three months of simple imprisonment along with a fine

[2024:RJ-JP:11742] (9 of 11) [CRLR-1217/2005]

of Rs.1,000/- to a fine of Rs.50,000/- (Rupees Fifty Thousand) and

upheld the sentence of fine of another appellant number 1.

20. In the present case, the petitioner is convinced for the

offence under Section 7/16 of the Prevention of Food Adulteration

Act for simple imprisonment of 6 months along with a fine of

Rs.1000/-. It is alleged against the petitioner that he sold

substandard milk. Indubitably the Prevention of Food Adulteration

Act 1976 stands abrogated and replaced with the Food Safety and

Standards Act, 2006.

21. In the repealed Act 1976 the definition of Adulteration is

provided under section (i), which reads as under :-

"adulterated"--an article of food shall be deemed to be adulterat--

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;

(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;

(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) if the article consists wholly or in part of any filthy, putrid, , rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;

(g) if the article is obtained from a diseased animal;

(h) if the article contains any poisonous or other ingredient which renders it injurious to health;

[2024:RJ-JP:11742] (10 of 11) [CRLR-1217/2005]

(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;

(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health;

(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to

22. The instant case falls under section (m) of the old Act. In the

Act of 2006, the definition of "adulterant" is provided under

Section 3(1)(a), which reads as under:-

(a) "adulterant" means any material which is or could be employed for making the food unsafe or sub-standard or mis-branded or containing extraneous matter;

23. In Section 51 of the Act of 2006, penalty for selling/ storing

substandard articles is prescribed, which is as under:-

"51. Penalty for sub-standards food.-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 sub-standard, shall be liable to a penalty which may extend to five lakh rupees."

[2024:RJ-JP:11742] (11 of 11) [CRLR-1217/2005]

24. Thus from the above provision, it is conspicuous that under

the new act, only the penalty of a fine is stipulated therefore

applying the doctrine articulated in the above-referred matters

and also considering the fact that the crime itself was committed

in the year 1995 and twenty nine years have elapsed since,

while upholding the conviction of the petitioner under section

7/16 of Prevention of Food Adulteration Act, the sentence is

modified from six months of simple imprisonment along with fine

of Rs.1,000/- to a fine of Rs.50,000/- (Rupees Fifty Thousand

only). The amount shall be deposited with the concerned Court

within a period of three months from today. If the petitioner fails