IN THE COURT OF MS.POONAM A. BAMBA:DISTRICT & SESSIONS JUDGE: NEW DELHI Crl. Appeal No. 8468/16 Food Inspector/Food Safety Officer Department of PFA/FS Govt. of NCT of Delhi A20 Lawrence Road Indl. Area,New Delhi110035. ....Appellant Versus Sh. Suresh Chand Goyal S/o Late Sh. Badri Prasad M/s Tip Top Food Tech India Sales Office D120B Veena Enclave, Near Railway Station Nangloi, Delhi110041. Manufacturing Unit : D313, Tagore Garden New Delhi110 027. R/o 1st Floor, D313 Tagore Garden, New Delhi110027. ....Respondent
APPEAL UNDER SECTIONS 377 CODE OF CRIMINAL PROCEDURE AGAINST THE ORDER DATED 24.09.2012 OF LD. ACMM – II, NEW DELHI.
Date of Institution of Appeal : 11.12.2012
Arguments concluded on : 21.03.2018
Judgment announced on : 21.03.2018
Present : Sh. A.K. Mishra & Sh. Anil, Ld. Addl. Public Prosecutors for State Sh. R.D. Goel, Ld. Counsel for the respondent
J U D G M E N T
1.0 Vide this appeal, the appellant has challenged the order on sentence dated 24.09.2012, whereby the Ld. ACMMII, sentenced the respondent for an offence punishable under Section 16(1)(a) r/w Section 7 of the Prevention of Food Adulteration Act, 1954 (“PFA Act” in short) for a period of one day i.e. till rising of the court (“TRC” in short) and to pay a fine of Rs. 20,000/. In default of payment of fine, SI for 30 days. It is pleaded that Section 16(1)(a) of the PFA Act prescribes minimum imprisonment of six months and fine. Ld. Trial Court could not have awarded imprisonment of TRC i.e. less than the minimum prescribed. In support, Ld. Addl. PP placed reliance upon the judgment of Hon’ble Supreme Court in Balraj Sharma V. State (UT Chandigarh), 2016(1) FAC 16).
2.0 On the other hand, Ld. Counsel for the respondent sought dismissal of this appeal pleading that it is barred by time. Dismissal is sought even on merits. It is submitted that it was only a case of misbranding and not of adulteration. Considering the same, the Ld. Trial Court has rightly sentenced the appellant with TRC and fine of Rs.20,000/.
3.0 I have heard Sh. A.K.Mishra and Sh. Anil, Ld. Addl. Public Prosecutors for State and Sh. R.D. Goel, Ld. Counsel for the respondent and have carefully perused the record.
4.0 Let me first deal with the plea of limitation raised by the respondent. The respondent has pleaded that the appeal is time barred.
4.1 It is seen that the impugned oder of sentence under challenge in this appeal was passed on 24.09.2012. The appeal was filed on 11.12.2012 i.e. after 77 days. For criminal appeals against order of sentence, Article 115(b) of Limitation Act, 1963, prescribes limitation period of 30 days from the date of order of sentence. Thus, there is a delay of 47 days.
4.2 The appellant has submitted that after receipt of certified copy of the judgment/impugned order, Ld. Addl. Public Prosecutor prepared his report on 03.10.2012. Thereafter, the Chief Public Prosecutor submitted his report to the PFA department on 04.10.2012. The file thereafter remained under consideration in PFA department. After getting the approval of Commissioner, Food Safety, the file was received back in the prosecution branch on 30.12.2012. Thereafter, the appeal was prepared and was sent to PFA Department for signatures by the concerned FI/FSO. On receiving the appeal after signatures it was immediately presented in the court without any further delay. The delay was caused due to the procedural formalities and was unintentional. It is further submitted that the appellant has a good case on merits. If the delay is not condoned, the appellant shall suffer irreparable loss.
4.3 In rebuttal, the Ld. Counsel for the respondent submitted that each day’s delay needs to be explained but the appellant has failed to do so. Therefore, this appeal is liable to be dismissed.
4.4 No doubt, there is a delay of 47 days. The appellant has explained that the delay took place due to administrative reasons as detailed above. It is a settled position of law that the court has to take a pragmatic view while considering such a prayer for condonation of delay particularly when the appeal is filed by the State, in view of the time taken in decision making at various levels in the Government. It would also be pertinent to refer here to the judgment of Hon’ble Supreme Court in Land Acquisiton, Kerala versus K.V. Ayisumma AIR 1996 SC 2750, Special Tehsildar, wherein it was observed that : “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…… 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.”
4.5 In view of above facts and circumstances, settled position of law and in the interest of justice, the delay in filing the present appeal is condoned.
5.0 Let me now examine the appeal on merits. Briefly stating, the factual background of the present appeal is that a sample of “Kuttu Atta” was lifted from the vendor/respondent’s premises i.e. Store Operations of LM 365 (a unit of M/s Lal Mahal Retail Ltd), J 8/77 H, Nehru Market, Rajouri Garden, New Delhi, by the Food Inspector on 08.04.2011. One part of sample was sent for analysis. The Public Analyst vide his report dated 13.04.2011 reported the same to be misbranded, as there was violation of rules 42 (zzz) 17 and 36 (2) (a) of the Prevention of Food Adulteration Rules, 1955 (“PFA Rules” in short). The sample however was not found to be adulterated. A complaint against the respondent herein was filed alleging violation of Section 7/16 PFA Act. The respondent was charged with violation of Section 2 (ix)(k) of the PFA Act read with rules 42 (zzz) (17) and 36 (2)(a) of the PFA Rules, which is punishable under Section 16(1)(a) read with Section 7 of the PFA Act.
5.1 During the pendency of those proceedings, on 24.09.2012, the respondent pleaded guilty to the offences alleged against him and prayed that a lenient view may be taken against him. In view of the same, the Ld. Trial Court passed the impugned order, which reads as under:
“24.09.2012 Present: Shri Masood Ahmad, Ld. SPP for the complainant.
All accused (except accused no.4) are present with their respective counsel Case file perused. Perusal of the case file reveals that an application U/s 294 Cr.P.C., r/w S. 19(2) of the Act of 1954 (filed on behalf of accused nos.1 to 6) is pending for disposal. Today reply to this application has been filed by accused no.7. Arguments heard.
Statement of the accused no.7 namely Suresh Chand Goel has been recorded separately (being the Proprietor of manufacturing cum supplier firm i.e. M/s Tip Top Food Tech India), whereby he has admitted that he had sold the sample commodity i.e. Kuttu Atta to accused no.6 vide Bill Ex.CW1/A and has further prayed that he has no objection if the benefit of Warranty U/s 19(2) of the PFA Act is given to the accused nos.1 to 6. After going through the record as well as the statement of the accused no.7, the accused nos.1 to 6 are hereby given the benefit of Warranty U/s 19(2) of the Act of 1954 and accordingly they are discharged.
Notice U/s 251 Cr.P.C. for the violation of Provisions of S.2(ix) (k) of PFA Act, 1954 alongwith Rule 42(ZZZ)(17) & Rules 36 (2) (a) of PFA Rules 1955; punishable U/s 16(1)(a) r/w S.7 of the PFA Act 1954 has been framed upon the aforesaid accused to which he has pleaded guilty and prayed for mercy. At this stage, Ld. Counsel for accused no.7 has submitted that this is not a case of adulteration and the accused is charged only with the offence of misbranded only and a lenient view is prayed. On the other hand Ld.SPP has argued that the offences under the PFA Act 1954 are socioeconomic offences and should be dealt severely.
Keeping into consideration the submissions as summarized herein above,this court is of the considered opinion that the ends of justice shall be reasonably and suitably met if the accused no.7 is sentenced to S.I. for the period of one day i.e. till rising of the court and to pay a fine of Rs.20,000/(Rs. Twenty Thousand only). In default of payment of fine, one month S.I. Fine paid.
File be consigned to Records after due compliance.
(Mohinder Virat) ACMMII/PHC/ND/24.09.2012″
5.2 The appellant has pleaded that the minimum sentence for misbranding as prescribed under Section 16(1)(a) PFA Act, is imprisonment for a term of not less than six months; and therefore, the Ld. MM could not have awarded the sentence of TRC i.e. less than the minimum prescribed period of six months. Ld. counsel for the respondent on the other hand, argued that it was only a case of misbranding and not adulteration. The PFA Act now stands repealed and has been replaced by the Food Safety & Standards Act, 2006 (“FSS Act” in short). Under FSS Act, misbranding is punishable only with fine and punishment of imprisonment has been done away with. In view of these facts, there is no infirmity in the sentence awarded by the Ld. Trial Court. In support, Ld. Counsel placed reliance upon the judgment of Hon’ble Supreme Court Of India in Nemi Chand V. State of Rajasthan 2016 (1) FAC 561 and that of Hon’ble Delhi High Court in State V. Amar Singh 2016 (1) FAC 363; 2016 Cr.LJ 583.
5.3 No doubt, minimum sentence for the offences under Section 2 (ix)(k) of the PFA Act read with rule 42 (zzz) (17) PF Rules, with which the respondent was charged, as prescribed under Section 7 read with Section 16(1) (a) PFA Act, is six months. Thus, the Ld. Trial Court awarded less than the minimum prescribed sentence.
5.4 What is to be seen is, whether the Ld. ACMM could have awarded a punishment less than the prescribed minimum. It is a matter of record that that PFA Act stands repealed vide Notification F.No.P15025/41/2011DFQC, dated 4th August, 2011 w.e.f. 05.08.2011 and now FSS Act has come into being. Under Section 52 FSS Act, misbranding is now punishable only with penalty which may extend to Rs.Three Lacs. The punishment of imprisonment has been done away with. It would be pertinent to mention here that the similar issue as involved in the instant case, that is, of awarding of sentence less than the minimum prescribed under the old Act (PFA Act) came up for consideration before the Hon’ble Supreme Court in Nemi Chand’s case (supra). In that case, the appellant was tried and convicted for offence under Section 7/16 of the PFA Act by the trial court and was inter alia, sentenced to undergo six months’ Rigorous Imprisonment as well as fine of Rs.1,000/. The same was challenged by way of appeal before the sessions court and on not succeeding, the appellant filed revision petition before the Hon’ble High Court which was also dismissed. The appellant then preferred an appeal before the Hon’ble Supreme Court. Hon’ble Supreme Court vide its order dated 10.03.2016, had modified/reduced the sentence awarded to the appellant therein to fine of Rs.50,000/ for the offence under Section 7/16 of the PFA Act.
5.4.1 Hon’ble Supreme Court in above case, observed as under:
“……..It is not in dispute that the charge against the appellant was 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 below. 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. He has drawn our attention to the judgment of this Court in ‘T. Barai v. Henry Ah Hoe and Another‘ [1983 (1) SCC 177] wherein this Court held that since the amendment 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 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 in so far 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 in so far 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 Craies on Statute Law, 7th Edn., at pp. 38889:
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……”
5.5 Thus, the Hon’ble Supreme Court modified the minimum sentence of (rigorous) imprisonment of six months and fine of Rs.10,000/ awarded by the Ld. Trial Court to only fine of Rs.50,000/. It would also not be out of place to mention here that the Hon’ble Supreme Court had reduced the sentence on the submissions Counsel for the appellant that the PFA Act has been amended by Central Amendment Act of 34 of 1976. Whereas, actually PFA Act had been repealed and new FSS Act, had come into being. Accordingly, the aforesaid order dated 10.03.2016 was modified by the Hon’ble Supreme Court vide order dated 17.03.2016 noting as under:
“…….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 hereby 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 and Standards Act, 2006, the maximum penalty is only fine for substandard food or misbranding.”
5.6 It would also be pertinent to mention here that following the above dictum of the Hon’ble Supreme Court in Nemi Chand’s case, Hon’ble Gujarat High Court in its recent judgment dated 22.09.2017 in Kasnabhai Kadvabhai Gari vs State of Gujarat, Criminal Revision Application (Against ConvictionFood Adulteration Act) No.662 of 2013, where the accused was guilty of only sub standardization of goods, modified the sentence from one year simple imprisonment and fine of Rs.2,000/ to only fine of Rs.40,000/. The Hon’ble Gujarat High Court in the said case observed as under: “2. It is not in dispute that charge against the petitioner accused was only of sub standardization of the goods.
3. Mr. Hemant Makwana, learned advocate appearing on behalf of the petitioner has submitted that though accused has some case even on merits, he would be giving up the plea on merits and his only submission is about sentence imposed by the courts below. He has requested to consider the subsequent amendment in the Act by the Central Amendment Act whereby Sections 51 and 52 have been added and under the said sections, only fine is to be imposed……
4. In support of his above submissions …… has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Nemi Chand vs. State of Rajasthan dated 17/03/2016 passed in Criminal Appeal No.214 of 2016.
5. ……………………
6. Having heard Mr. Makwana, learned advocate appearing for the petitioner and Ms. C. M. Shah, learned Additional Public Prosecutor and considering the facts and circumstances of the case more particularly when the charge against the petitioner is only of sub standardization of the goods and that original accused was convicted for the offence punishable under for the offences punishable under Sections 2(ia)(a)(m), 7(1)(3)(5} and Section 16(1)(a)(1) of the Act and Rule 50 of the Rules, considering the decision of the Hon’ble Supreme Court in the case of Nemichand (supra) and amendment in the Act by Central Amendment Act 34 of 1976 whereby Sections 51 and 52 have been added and under said sections only fine is laviable, decision of the Hon’ble Supreme Court in the case of Nemichand (supra) squarely applies.
7. ……………..
8. Under the circumstances, present Revision Application is partly allowed. Conviction of the accused for the offences alleged against him is hereby maintained. However, sentence is modified by imposing fine of Rs.40,000/ (Rupees Forty Thousand only) which shall be deposited before the trial court within a period of four weeks from today…………”
5.7 It would also be pertinent to mention here that Hon’ble Delhi High Court recently in Amar Singh’s case (supra), which involved misbranding, upheld the punishment of TRC, i.e. less than the minimum prescribed under FSA Act, considering inter alia that the said offence is now punishable with fine only under the new Act i.e. FSSA.
5.8 Let me now refer to Balraj Sharma’s case (supra) as relied upon by Ld. Addl. PP. The facts in that case were very different. Said case involved adulteration. Further, in that case, a fresh factual plea was raised by the appellant at appellate stage. In those circumstances, the Hon’ble Court observed that it cannot interfere with the minimum sentence awarded by the Ld. Trial Court. The Hon’ble Court was not dealing with the issue whether the sentence can be reduced to less than minimum, as was directly dealt with in Nemi Chand’s case (supra). In view of the same, said judgment is of no assistance to the appellant.
6.0 In view of the above facts and circumstances and the case law as discussed above, the imprisonment TRC is not interfered with. Mentioning of vegetarian symbol is of great significance. Thus, considering the facts in entirety and that the sample did not bear vegetarian symbol, the fine imposed upon the respondent is enhanced from Rs.20,000/ to Rs.30,000/ (Rs. Thirty Thousand only) which shall be deposited with the Ld. Trial Court within a period of two weeks from today.
7.0 The appeal is accordingly disposed of.
8.0 Trial court record be sent back along with copy of this judgment.
9.0 File be consigned to Record Room.
Announced in the open court
(POONAM A.BAMBA)
on this 21st Day of March 2018.
District & Sessions Judge
New Delhi
PesPro 