Ramadhar v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 507 of 2005 Order reserved on 14.11.2018 Order pronounced on 19.12.2019 Ramadhar, S/o Poosu Sahu, aged about 40 years, R/o Gram Khudia, Thana & Tahsil Lormi, District Bilaspur (CG) --- Applicant

Versus

State of Chhattisgarh, through K.N. Mishra, Food Inspector, District Flying Scott, Bilaspur --- Respondent For Applicant :

Smt. Renu Kochar, Advocate For Respondent :

Smt. M. Asha, PL Hon'ble Smt. Justice Vimla Singh Kapoor C.A.V. Order This revision arises out of the judgment dated 23.11.2005 passed by Additional Sessions Judge Mungeli, Bilaspur in Criminal Appeal No.44/2004 affirming the judgment dated 22.12.2003 passed by JMFC, Mungeli in Criminal Case No.766/1994 convicting the accused/applicant under Section 7(16) of Prevention of Food Adulteration Act, 1954 (for brevity "Act of 1954") and sentencing him to undergo SI for six months and pay fine of Rs.1000, plus default stipulation. 2.

Facts of the case in brief are that on 21.04.1994 Food Inspector K.N. Mishra (PW-2) took sample of wheat flour by paying Rs.4.50/- from the grocery shop of accused/applicant vide receipt Ex.P-2 and sent the same to public analyst for examination. As per the examination report dated 30.05.1994 marked as Ex.P-12 the sample of wheat flour was found to be adulterated. As the Public Analyst found the sample to be adulterated and not conforming with the standards and norms prescribed under the relevant rules, a complaint was filed before the JMFC, Mungeli by the Food Inspector on 19.10.1994.

3.

Learned Magistrate vide its order dated 22.12.2003 found the accused/applicant guilty under Section 7(16) of the Act of 1954 and

imposed the sentence on him as referred to above. In appeal also the findings recorded by learned Magistrate have been maintained as a whole vide judgment under challenge in this revision petition dated 23.11.2005. 4.

Apart from advancing vehement arguments on merit aspect of the case by bringing to the fore innumerable loopholes and lacunae in the case of the prosecution, learned counsel for the applicant made an alternative prayer for setting aside the jail sentence imposed on the applicant by imposition of adequate sentence of fine only. She further submits that by virtue of amendment in the Act by the Central Amendment Act 34 of 1976, Section 16 A was added making leviability of fine alone. This submission of the counsel for the applicant is made placing reliance on the judgment of the Apex Court in the matter of Nemi Chand Vs. State of Rajasthan reported in 2016 (1) FAC 561, fortified by its earlier judgment passed in the matter of T. Barai Vs. Henry Ah Hoe and another reported in 1983 (1) SCC 177.

It has also been argued on behalf of the applicant that Prevention of Food Adulteration Act has been repealed by a new Act known as Food Safety and Standards Act, 2006 in which there is no provision for imprisonment but only a provision of fine is there in it. It has also been contended that the Hon'ble Apex Court had the occasion to look into the matter legally and had arrived at the conclusion that if new enactment prescribes a lesser punishment the same should be applied to all the pending cases under the repealed act also. 5.

State counsel however supports the judgment impugned and submits that since both the Courts below have assessed the evidence collected by the prosecution very minutely while holding the accused/ applicant guilty as described above, no interference therewith in this revision is called for.

6.

This Court thinks it apposite to look into the judicial pronouncements of the Apex Court taken support of by the counsel for the accused/applicant as to the feasibility of the sentence of fine alone to the

applicant who has been found guilty for the offence related to Food Adulteration Act as is the case here. Relevant portion thereof reads thus.

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. This finds support in the following passage from Craies on Statute Law, 7 th Edn., at pp.

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".

7.

After hearing counsel for the parties and going through the evidence on record, this Court approves the finding recorded by both the Courts below that on the basis of the report of public analyst (Ex.P-12), the sample was found to be adulterated not conforming with the standards and norms prescribed under the Act and rules made thereunder, and the

defence did not succeed in rebutting the said report by leading any cogent and clinching evidence. Other important witnesses including the Food Inspector (PW-2) have also supported the case of the prosecution. In this view of the matter, the conviction of the accused/applicant as described above is hereby maintained.

8.

From the aforesaid judicial pronouncements as regards leviability of only the fine sentence in the cases of like nature even in the pending cases under the repealed Act, this Court has no doubt in mind that the principle laid down therein squarely applies to the case in hand also, and being so, the sentence of six months simple imprisonment imposed on the accused/applicant in the instant case is hereby set aside. At the same time, the accused/applicant is directed to pay fine of Rs.10,000 in place of Rs.1000 as was imposed by both the Courts below. Let this enhanced fine amount be deposited by the applicant in the trial Court as early as possible preferably not later than two months from today. 9.

The revision is thus allowed in part to the extent indicated hereinabove.

Sd/- (Vimla Singh Kapoor) Judge Jyotishi|Ajay