IN THE COURT OF SHRI AMAR NATH: DISTRICT & SESSIONS JUDGE NEW DELHI Crl. Appeal No. 103/12 Food Inspector/Food Safety Officer, Department of PFA Govt. of NCT of Delhi, A20 Lawrence Road Indl. Area,New Delhi110035. ....Appellant versus Sh.Bachhu Prasad S/o Sh. Arjun Prasad M/s Bachhu Prasad, Stall No.22 Pili Kothi, Naya Bazar, Delhi. R/o 4256, Masjid Near Railway Station Naya Bazar, Delhi. ....Respondent.
Date of Institution of Appeal : 22.12.2012
Judgment reserved on : 29.11.2016
Judgment announced on : 02.12.2016
J U D G M E N T
This is an appeal u/s 377 Cr. P.C against the impugned order dated 12.10.2012 whereby inappropriate sentence was awarded by the court of then Ld. ACMMII praying therein to award minimum prescribed sentence of six months imprisonment and fine after modification of the said order.
Crl. Appeal No. 103/12 The appeal was admitted for hearing. Notice of the appeal was given to the respondent who has resisted the same submitting that the appeal is not within limitation. Record of the Ld. Trial Court was requisitioned.
3. The allegations of the complainant in brief are that on 05.05.2011 at about 9AM Sh. Rajpal Singh, Food Inspector purchased a sample of Haldi Powder, an article of food for analysis from Sh. Bachhu Prasad(respondent herein) s/o Sh. Arjun Prasad, M/s Bachhu Prasad, Stall No.22, Pili Kothi, Naya Bazar, Delhi where he was found conducting the business of various food articles including Haldi Powder, an article of food for sale of human consumption at the time of taking the sample. The sample consisted of approximately 1500 grams of Haldi Powder(ready for sale) was taken from an open plastic bag having no label declaration after properly mixing Haldi Powder with clean and dry jhaba by rotating it in clockwise, anticlock wise, up and downwards for several times. The sample was taken under the supervision of Sh. K. K. Mittal, LHA. Sh. Rajpal Singh, Food Inspector divided the sample of the article of food Haldi Powder into three equal parts then and there by putting into three clean and dray glass bottles. Each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act, 1954 & Rules,1955. The vendor’s signatures were obtained on the LHA slip and wrapper of the each counter part containing the sample. Notice in Form VI was given to Sh. Bachhu Prasad and the price of sample was also paid to him vide vendor receipt dated 05.05.2011. Panchnama too was prepared at the spot. All the documents prepared by the Food Inspector Sh. Rajpal Singh were signed by Sh. Bachhu Prasad and by other witness Sh. C. B. Boora,FI. One counter part of the sample bearing LHA Code Number 42/LHA/31957 in intact condition alongwith copy of memo in Form VII and another copy of memo in Form VII under sealed cover were sent separately to the Public Analyst, Delhi on 05.05.2011 and two counterparts of the sample alongwith the two copies of memos in Form VII were deposited with the LHA in intact conditions on 05.05.2011. All copies of Memos in Form VII bear the seal impression with which sample parts were sealed. The Public Analyst vide his report number PFA/Enf./1115/2011 dated 13.05.2011 has reported that the sample conform to standard. However, the vendor was found selling Haldi Powder in loose form i.e. unpacked condition which is not permitted as per clause 24 of Rule 49 of PFA Rules, 1955. The respondent has violated the provisions of Section 7 of the PFA Act, 1954 r/w clause 24 of Rule 49 of PFA Rules, 1955 which is punishable u/s 16(1)(a) of PFA Act,1954.
4. A notice u/s 251 Cr.P.C was framed against the respondent by the then Ld. ACMMII, New Delhi vide order dated 12.10.2012 to which accused (respondent herein) pleaded guilty and he was sentenced to Simple Imprisonment for the period of one day i.e till the rising of the court and to pay a fine of Rs.1,000/ and in default of payment of fine, one day Simple Imprisonment.
5. Feeling aggrieved, the appellant has challenged the impugned order on account of inadequate sentence awarded by the court of the then Ld.ACMM II, New Delhi on the following grounds: I. The Ld. Trial Court failed to appreciate the accused has pleaded guilty for the offence which is in violation of Section 2 (ix) (k) punishable u/s 16 (1)(a) of PFA Act, 1954 which prescribes minimum sentence of six months imprisonment and fine and the said minimum statutory imprisonment has not been awarded in this case and as such, the impugned order of sentence deserves to be modified.
6. I have heard the rival contentions advanced on behalf of both the parties and carefully perused the record.
7. It is cardinal rule of law that before touching the merits of
the case, the Court has to ensure as to whether the appeal is within limitation or not.
8.Before proceeding further, let me quote the relevant provision of the Limitation Act, 1963 Description of appeal Period of Time from Limitation which period begins to run 114. .......The date of the (a).... Ninety days order appealed from (b)....Thirty days 115. Under the Code of Criminal Procedure, 1898 (5 of 1898) (a) from a sentence of death passed by a court of Sessions or by a High Court
in the exercise of its original criminal Thirty days The date of jurisdiction.
sentence (b)from any other sentence or any order not being an order of acquittal to the High Court Sixty days. The date of the sentence or order. (II) to any other court.Thirty days. The date of sentence or order. 9. Ld. Counsel for the appellant has contended that the
State has sought condonation of delay in filing the appeal against the inadequate sentence awarded by the court of the then Ld.ACMMII, New Delhi on the ground that approval to file the appeal was received in prosecution branch on 29.11.2012 and the period prior to that was consumed by the normal processes of office procedure in obtaining the permission to appeal.
10. He further contended that there is no specific time limitation for filing the appeal in Sessions Court under the Code of Criminal Procedure, 1973. The limitation shall be six months where the appeal is preferred by the public servant before the Hon’ble High Court and as such, in the amended CrPC the time limitation in filing the appeal in the Sessions court may also be six months. If it is not so, then the reason for occurring of the delay has been well explained in the paragraph 2 of the application.
11. Per contra Ld. Counsel for the respondent has refuted the aforesaid line of arguments whilst making the submissions that there is a delay in preferring the present appeal and thus, it cannot be entertained, therefore, the same is liable to be dismissed on this ground alone. It is further argued that this appeal would be governed by Article 115 (b) of the Limitation Act, 1963 which prescribes 30 days period of limitation from the date of order against the inappropriate sentence awarded by the court.
12. The expression ‘sufficient cause’ in Section 5 of the Limitation Act, should receive a liberal construction so as to advance substantial justice when the delay is not on account of any dilatory practice, want of bonafides, deliberate in action of negligence on the part of the appellant. The court has to keep in mind while deciding the application for condonation of delay that discretion in the Section 5 of the Limitation Act has to be exercised to advance substantial justice.
13. Here, I may refer the judgment of our own Hon’ble High Court State vs. Ajaj Ahemad, Crl. Appeal No.524/2011 decided on 31.05.2012 where condonation of 269 days delay in filing the leave to appeal was sought by the State, which was allowed with the following observation: “5. Keeping in view the above broad parameters, I feel that there is prima facie merit in the appeal itself which persuades the court to consider the appeal on merit rather than dismiss the same on technicalities of being barred by time. The merit in the appeal is that ex facia the sentence to which the respondent/ accused was sentenced, in a heinous crime of rape, is grossly inadequate.”
14. His Lordship went to state further that the law regarding the condonation of delay has got substantially changed from the stage of the judgment of Ram Lal, Chhote Lal & Moti Lal vs. Rewa Coal Field Pvt. Ltd., AIR 1962 SC 361 where the Hon’ble Apex Court was of the opinion that each day’s delay has to be explained but this law has been toned down substantially to the extent that now the quantum of delay has not been considered to be material. Even in the latest judgment of the Apex Court, as reported in Executive Officer, Antiyur Town Panchayat Vs. G. Arumugam, (2015) 3 Supreme Court Cases 569, their Lordships set aside the impugned order after condoning the delay of 1373 days in filing the second appeal.
15. Now the question arises as to whether the appellant has explained the delay occurred in filing the appeal. In para 2 of the application of Section 5 of the Limitation Act, it has been mentioned that after receiving the certified copy of the judgment of the trial court, the Additional PP prepared its report on 25.10.2012 and the Chief Prosecutor submitted its report to the PFA Department on 31.10.2012 and thereafter the file remained under consideration in PFA Department. After getting approval of the Commissioner (Food Safety), the file was received back in Prosecution Branch on 29.11.2012. The appeal was prepared and sent to PFA Department for obtaining the signature of the concerned official and as such, unintentional delay in filing the appeal did occur.
16. In AIR 1996 Supreme Court 2750, Special Tehsildar, Land Acquisiton, Kerala versus K.V. Ayisumma, it has been held by the Apex Court which is reproduced as under : “It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge had rightly adopted correct approach and has condoned the delay without insisting upon explaining every days delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned.
17. If the facts of the present case are examined in the light of the aforesaid provision, it makes clear that an appeal against the inadequate sentence shall be preferred within 30 days from the date of sentence or order in the court of Sessions. Sixty days time has been provided for filing an appeal against the order of acquittal of the accused from the date of sentence before the Hon’ble High Court of Delhi as per the provisions of (5) of Section 378 of the Code of Criminal Procedure and hence, it is admitted position of the fact that the impugned order was passed on 12.10.2012 and the present appeal was filed on 21.12.2012 after the gap of more then two months.
18.It has been observed in the catenae of judgments of the
Apex Court that while condoning the delay, the court must adopt the pragmatic and practical approach and more so when the appeal is filed by the State. Certain amount of delay in taking the decision by the various level of the Government functioning is inevitable. The court has to see further that prima facie, the appeal must show that it has some merit for consideration before the delay could be condoned.
19. Undoubtedly, the respondent/accused had pleaded guilty to the notice u/s 251 Cr.P.C. The respondent/accused in the instant case has admitted the guilt without any force, coercion or inducement and thus, same is binding upon him. In so far, the sentencing part is concerned, no doubt, the sample conform to standard by the Public Analyst vide report no. PFA/Enf./1115/2011 dated 13.05.2011. However, the vendor was found selling Haldi Powder in loose form i.e. unpacked condition which comes within the mischief of the provisions of SubClause
(k) of Section 2 (ix) of the PFA Act, 1954 and also in violation of Clause 24 of Rule 49 of PFA Rules, 1955 which is punishable u/s 16 (1)(a) of PFA Act, 1954 read with Section 7 of the PFA Act,1954 punishable with imprisonment which shall not be less than six months which may extend to three years, and with fine which shall not be less than Rs.1000/.
20. Ld. Counsel for the appellant stated that since the respondent had admitted the case of selling Haldi Power in loose form i.e. unpacked condition with a request to lenient view but the same does not empower the court to award less than minimum sentence. To support his case, he placed reliance upon the three Bench Judges judgment of Balraj Sharma Versus State (UT Chandigarh), 2016(1) FAC 16 Supreme Court of India wherein it was held that :
B) Prevention of Food Adulteration Act, 1954 section 16(1)(a) (i) read with section 7 conviction and sentence underthe minimum sentence that could be awarded if the conviction is upheld by the High Court is six months, and therefore, though the learned counsel for the appellant contended that the appellant is suffering from various ailments, sentence cannot be reduced.”
21. Per contra, Ld. Counsel for the respondent has refuted the aforesaid line of arguments whilst contending that notice u/s 251 Cr.P.C. against the respondent was only of selling Haldi Powder in loose form i.e. unpacked condition and for which he was sentenced to Simple Imprisonment for the period of one day i.e. till the rising of the court and to pay a fine of Rs.1,000/,in default of payment of fine, Simple Imprisonment for one day and as such, there is no inadequacy of the sentence. Hence, the appeal is liable to be dismissed on this ground. He further 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 also argued that in Nemi Chand Vs. State of Rajasthan, decided on 17.03.2016, their lordships were pleased to substitute words in the 8th line of the order passed in the Criminal appeal disposed with the observation “Upon being mentioned by Mr. Sunil Kumar Jain, learned senior counsel for the appellant, the 8th line of page No. 2 of order dated March 10, 2016, passed in the aforementioned criminal appeal, i.e., 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” is substituted by the following:
“He has, in this behalf, argued that under Section 51 and 52, of the Food Safety and Standards Act, 2006, the maximum penalty is only fine for substandard food or misbranding”.
22. Both the sides have relied upon the judgments of the Hon’ble Apex Court. The court has to look into as to which of the two judgments shall be made applicable. Admittedly, the judgment relied upon by the respondent is of the Division Bench comprising of two Judges whereas the appellant has placed reliance upon the judgment comprising of three Judges Bench of Hon’ble Apex Court.
Of course, the larger bench judgment shall have the over ride effect upon the other.
23. After applying the ratio of judgment Balraj Sharma vs State (UT Chandigarh)(supra), I am of the considered view that the court below fell into an error and failed to appreciate that the respondent/accused has admitted his guilt without any fear, coercion or inducement, therefore, this has to be treated as a plea of guilt then, it was incumbent upon the Ld. Trial Court to award minimum prescribed sentence but it did not do so and as such, order of the then Ld. ACMM II, New Delhi qua the sentencing part of the accused is vitiated with error of law, impropriety and mis appreciation of the material and in this context, I feel every justification to interfere in this appeal qua the sentencing part of the impugned order given by the court below.
In view of the aforesaid discussions, impugned order on sentence dated 12.10.2012 passed by the Ld. Trial Court cannot be sustained and the same deserves to be set aside. Accordingly, the impugned order dated 12.10.2012 is set aside by accepting the appeal and remand the case to the Ld. Successor Court of Ld. ACMM II, New Delhi to decide the order on sentence passed on 12.10.2012 afresh after hearing both the parties. Both the parties are directed to appear before the concerned court on 15.12.2016. Appeal file be consigned to the record room. TCR be sent back along with the copy of this judgment.
Announced in the open court on this 02nd day of December, 2016 (AMAR NATH) District & Sessions Judge New Delhi
IN THE COURT OF SHRI AMAR NATH : DISTRICT & SESSIONS JUDGE, NEW DELHI Crl. Appeal No. 103/12 Food Inspector Vs. Bachhu Prasad 02.12.2016
Present : Sh. A.K. Mishra, Ld. Addl. PP for the State.
None for the respondent.
Vide separate judgment of the even date, the impugned order dated 12.10.2012 is set aside by accepting the appeal and remand the case to the Ld. Successor Court of Ld. ACMMII, New Delhi to decide the order on sentence passed on 12.10.2012 afresh after hearing both the parties. Both the parties are directed to appear before the concerned court on 15.12.2016. Appeal file be consigned to the record room. TCR be sent back along with the copy of this judgment.
(AMAR NATH) District & Sessions Judge New Delhi/02.12.2016