The State of Maharashtra v. Murlidhar Dwarkadas Agrawal & Ors.

Judgment

3. Murlidhar Dwarkadas Agrawal, Age : 52 years, Prop. of M/s Dhanlaxmi Traders, 6, Rajmal Building, Parola Road, Dhule. Hari Gopal Wani, Age : 45 years, Salesman and Vendor of M/s Dhanlaxmi Traders, 6, Rajmal Building, Parola Road, Dhule. M/s Dhanlaxmi Traders, 6, Rajmal Building, Parola Road, Dhule RESPONDENTS ..... Mr. B.J. Sonawane, A.P.P. for the appellant/State. Mr. D.S. Bharuka, advocate for the respondents. ..... CORAM : A.V. POTDAR, J. DATED : 10th JULY, 2012 ORAL JUDGEMENT :

1. This is an appeal by the State of (2) criapl388-98 Maharashtra through the Food Inspector, Dhule under section 377 (1) of the Code of Criminal Procedure for enhancement of the sentence for the offence punishable under section 7 (iii) of the Prevention of Food Adulteration Act, 1954 (for short, "the PFA Act") read with Rule 50 of the Prevention of Food Adulteration Rules, 1955 (for short, "the PFA Rules") with section 16 of the PFA Act.

2. At the outset, the case of the prosecution as unfolded before the court below can be summarized as follows : (a)

On 12th May, 1992, Shri Shivaji Jadhav (PW1), who was then working as Food Inspector at Dhule, visited M/s Dhanlaxmi Traders near Priti Saree Centre, situated at 6, Rajmal Building, Parola Road, Dhule alongwith witness Gorakh Vanji Chauhan. He noticed that the respondent No. 2 was present in the said shop and was selling groundnut oil. During the inspection of the said premises in presence of the witness, he noticed that 10 kgs. of groundnut oil was stored in stainless steel barrel kept in the said (3) criapl388-98 premises. He also noticed one banner on which it was written `Swast Bhav Suprasidh Dhanlaxmi Tradersche Shudh Shengdane Tel'. He introduced himself to respondent No. 2 and showed his intention to take sample of the said groundnut oil for analysis. During further investigation, he noticed eight tins containing 15 kgs. groundnut oil in each of the container in the said premises. During the enquiry, it revealed that respondent No. 1 is the proprietor of the business. After paying an amount of Rs. 15.30 paisa, he purchased 450 grams of groundnut oil from respondent No. 2, necessary receipt of which (Exh-23) was issued by respondent No. 2. (b) After following the due procedure, from the purchased groundnut oil, he prepared three samples thereof. Those were packed, labelled and sealed as provided in law. Thereafter notice under section 14- A of the PFA Act was served on respondent No. 2 to obtain the information as to from where the groundnut oil in his shop was purchased. It appears that during the enquiry with respondent No.2, who was present at the spot, it revealed that respondent No. (4) criapl388-98 1 was not holding valid license to do the business of selling the groundnut oil in the premises where respondent No. 2 was found selling the groundnut oil. During further enquiry with respondent No.2, it revealed that respondent No. 1 was holding license to do the trade in the sale of groundnut oil, but for different area. The instances took place during the said visit were recorded in the panchanama at Exh-26. (c) On 13th May, 1992, an enquiry was made with the Local Health Authority and the Chief Officer, Municipal Council, Dhule as to whether the first respondent was holding any license to do the trade of sale of groundnut oil in the said premises by addressing a letter (Exh-30), to which reply was received to the effect that the first respondent was not holding a valid license to do the trade of sale of groundnut oil in the premises. It appears that during the further investigation, one sample from the three samples collected during the visit to the shop of respondent No. 1 was sent for chemical analysis, report of which was received that the sample did not answer to the test of standard as required under the (5) criapl388-98 provisions of the PFA Act. After completion of the investigation, the papers of investigation were forwarded to the office of the Joint Commissioner, Food and Drugs Administration for according the sanction. After the Joint Commissioner accorded the sanction, complaint came to be filed before the learned Chief Judicial Magistrate, Dhule against the respondents. After initial investigation was carried out by Food Inspector Shri Shivaji Jadhav, he was transferred from Dhule. Hence, the complaint was filed after following due procedure by PW2 Anil Gujar. (d) The trial was conducted before the court below as a warrant trial. After evidence of witness No. 1 was recorded before framing of the charge, the learned Chief Judicial Magistrate framed the charge against the respondents at Exh-50 on two grounds. Both the respondents were charged for the offence punishable under section 7 (i) read with section 2 (ia) (a) and 2 (ia) (b), punishable under section 16 of the PFA Act and for the offence punishable under section 7 (iii) of the PFA Act read with Rule 50 of (6) criapl388-98 the PFA Rules, punishable under section 16 of the PFA Act. It appears that the complaint was filed against these two respondents as well as the firm M/s Dhanlaxmi Traders. It appears that during the trial, evidence of PW1 Food Inspector Shivaji Jadhav and Food Inspector Anil Gujar (PW2) was recorded. The prosecution also relied upon voluminous documents. After the evidence was recorded, the respondents were examined under section 313 of the Code of Criminal Procedure wherein it is the defence of the respondents that the groundnut oil which was found in the premises of M/s Dhanlaxmi Traders was not kept for sale, but was kept by the wife of respondent No. 1 who was running the shop under the name and style "Priti Saree Centre", adjacent to the premises of M/s Dhanlaxmi Traders and the groundnut oil found in that premises was kept for their personal use and not for the sale. They denied the incriminating evidence given by the prosecution witness against them. Even respondent No. 2 denied the execution of receipt (Exh-23), but admitted the visit of PW1 Shivaji Jadhav, the Food Inspector to his shop and collection of samples of groundnut oil. On appreciation of this (7) criapl388-98 evidence, learned trial court was pleased to acquit the respondents of the offence punishable under section 7 (i) read with section 2 (ia) (a) and under section 2 (ia) (b) of the PFA Act, but was pleased to convict the respondents for the offence punishable under section 7 (iii) of the PFA Act read with Rule 50 of the PFA Rules punishable under section 16 of the PFA Act. The learned trial court was pleased to convict the respondents for the said offence and award the sentence of simple imprisonment till rising of the court and to pay a fine of Rs. 1000/- each with the default stipulation to suffer simple imprisonment for one month. No separate sentence was awarded against original respondent No. 3 - M/s Dhanlaxmi Traders, being a proprietary firm.

3. Admittedly, the State has not challenged the acquittal of the respondents for the offence under section 7 (i) of the PFA Act. The respondents also have not challenged their conviction and sentence as stated above. The challenge in this appeal under section 377 (1) of the Code of Criminal Procedure is for enhancement of the sentence to be awarded to the (8) criapl388-98 respondents as, according to the State, while awarding the lesser punishment to the respondents, the reasoning given by the learned trial court is not proper reasoning and without there being adequate reasons, a lenient view was taken by the learned court below.

4. In this background, I have heard learned A.P.P. Shri B.J. Sonawane, followed by the submissions of learned counsel Shri D.S. Bharuka for the respondents. During the course of submissions across the bar, learned A.P.P. took me through the evidence recorded before the court below, particularly the correspondence between the Food Inspector, Local Health Authority and the respondents and the correspondence received from the respondent No.1 at Exh-46, the correspondence from the wife of respondent No. 1 at Exh-47 and the correspondence received from the second respondent at Exh-43. He would urge that from the correspondence received from these respondents to the Food Inspector, it is clearly established that the respondents were selling the groundnut oil at the premises which were (9) criapl388-98 inspected by the Food Inspector - Shivaji Jadhav (PW1). This correspondence further discloses that the respondent No. 1 was not holding a valid license to sell the groundnut oil in that premises. He is fair enough to address to the court that the respondent No. 1 was holding a valid license to sell the groundnut oil but not in the premises where the respondent No. 1 was selling the groundnut oil through respondent No.2. According to him, the offence committed by the respondents is an economic offence. Considering this fact, without recording the proper reasoning, the learned trial court has unnecessarily taken a lenient view. He would further urge that the learned trial court ought to have awarded minimum sentence to the respondents considering the nature of the offence. In the light of this, he would urge that the appeal be allowed, by modifying the sentence awarded to the respondents.

5. While replying to these submissions of learned A.P.P., learned counsel Shri Bharuka, relying on the observations of this court in the matter of "State of Maharashtra vs. Tirath Singh Saudagar Singh (10) criapl388-98 Khanuja" reported in 1986 Vol. 1 All India Prevention of Food Adulteration Journal page 88, would urge that the appeal as presented by the State in the present form is not maintainable as the appeal is not filed by the Food Inspector, who is the complainant before the lower court. The appeal memo is not signed by the complainant nor the vakalatnama was signed by the complainant and on this technical ground alone, the appeal is required to be dismissed. He would further urge that the judgement impugned in this appeal was rendered by the learned trial court in the year 1998 while this Court is hearing the appeal in the year 2012 i.e. after a span of about fourteen years. If there is protracted litigation, then the State will not be the beneficiary of such protracted litigation and on this ground also, the appeal should fail. He would further urge by drawing my attention towards the proviso to section 16 of the PFA Act that no minimum punishment is provided under the proviso to section 16 of the Act, and hence, there is no question of learned trial court awarding the minimum punishment to the respondents. Lastly, he would urge, by drawing attention of this court towards Rule 50 (11) criapl388-98 (4) of the PFA Rules, 1955 that no doubt the respondent No. 1 was not holding the license whereas he was found selling the groundnut oil through respondent No. 2. At the same time, he was holding the license to do the trade of sale of groundnut oil in the local area, hence it cannot be said that there is deliberate violation of the Rules framed under the PFA Act. Under the circumstances, learned counsel would urge that the lenient view taken by the learned trial court needs no interference at the hands of this Court.

6. Considering these rival submissions across the bar and in view of the admitted position as stands proved and established from the evidence recorded before the court below by the appellant/State that the place where the respondent No. 2 was found selling the groundnut oil for respondent No.1, respondent No. 1 was not holding any valid license to sell the groundnut oil. The fact is further established that respondent No. 1 was holding the license to sell the groundnut oil, but at different premises. Considering this aspect, at this (12) criapl388-98 juncture, it is necessary to quote Rule 50 (4) of the PFA Rules, which reads thus : "50. Conditions for license - (1) ***** (2) ***** (3) ***** (4) If the articles of food are manufactured, stored or exhibited for sale at different premises situated in more than one local area, separate applications shall be made and a separate license shall be issued in respect of such premises not falling within the same local area; Provided that the itinerant vendors who have no specified place of business, shall be licensed to conduct business in a particular area within the jurisdiction of the licensing authority."

7. While considering Rule 50 (4), it is also necessary to read Sub-Rule 1-A of Rule 50 of the PFA Rules, which reads as follows : "1-A One license may be issued by the licensing authority for one or more articles of food and also for different establishments or premises in the same local area." It is no-where brought on record that the first respondent was holding the license issued under Rule 50 (1-A) of the PFA Rules. From this legal position as well as from the admitted correspondence at (13) criapl388-98 Exh-43, Exh-46 and Exh-47, the fact stands proved beyond reasonable doubt that the premises where the respondents No. 1 and 2 were dealing in the trade of sale of groundnut oil, was without having the valid license to sell the groundnut oil.

8. Section 23 (1-A) (g) of the PFA Act reads thus : "23. Power of the Central Government to make rules - (1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act ; Provided ***** (1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :- (a) ***** (b) ***** (c) ***** (d) ***** (e) ***** (f) ***** (g) defining the conditions of sale or conditions for license of sale of any article of food in the interest of public health." Considering this legal position, the fact is clear (14) criapl388-98 that the nature of the offence committed by the respondents is covered under section 7 (iii) of the PFA Act read with Rule 50 of the PFA Rules. Hence, it is necessary to consider the penalty provided for this offence.

9. On minute analysis of section 16 of the PFA Act, Proviso to section 16 reads thus : "Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of section 23 or under clause (b) of sub-section (2) of section 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees." On careful perusal of the proviso to section 16 of the PFA Act, reproduced above, it no-where discloses the minimum punishment provided under the law as the clause speaks about the imposition of sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees. Thus, the fact is clear that under the law, no minimum punishment is provided, therefore the (15) criapl388-98 submissions of learned A.P.P. across the bar that the learned trial court atleast should have awarded the minimum punishment to the respondents, cannot be upheld. These submissions are devoid of any merit.

10. Before I proceed to consider the reasoning recorded by the learned trial court while awarding the lesser punishment, it is necessary to consider the objection raised by the learned counsel for the respondents about the maintainability of the appeal. Admittedly, the appeal by the State is for enhancement of the sentence under section 377 (1) of the Code of Criminal Procedure. On perusal of the ratio laid down by this court in the matter of "State of Maharashtra vs. Tirath Singh Saudagar Singh Khanuja" reported in 1986 Vol. 1 All India Prevention of Food Adulteration Journal page 88, it reveals that it is in respect of leave to appeal against acquittal, as provided under section 378 (1) of the Criminal Procedure Code. No doubt, the provisions as to prefer an appeal are pari materia, whether it is an appeal against acquittal or it is an appeal for the enhancement of sentence. Admittedly, the Food (16) criapl388-98 Inspector has not filed the complaint in his personal capacity but has filed the complaint in the capacity as a public servant. Similarly, the appeal is the continuation of that proceeding and it is filed by the State through the Food Inspector, who is shown as the appellant/original complainant. If it is continuation of the proceedings and the appeal is preferred by the State, then according to this Court, neither the appeal memo is required to be signed nor a separate vakalatnama is required to be signed by the Food Inspector, since it is continuation of the proceedings. If the observations of the learned Single Judge in the case of "State of Maharashtra vs. Tirath Singh Saudagar Singh Khanuja" (supra) are considered from that angle, then the present appeal is maintainable and will not be barred merely on the technical ground that the appeal memo is not signed by the original complainant and the vakalatnama is not signed by the original complainant. Thus, I am of the view that the appeal is maintainable.

11. Perusal of the judgement impugned in this appeal reveals that the learned trial court has (17) criapl388-98 observed in paragraph No. 16 that it is convinced with the submissions of learned defence counsel that there are no criminal antecedents to the credit of the respondents as there was no previous conviction to their credit. It is also observed by the trial court that the respondents are sole earning members in their respective families. Hence, the lenient view is taken by the learned trial court. Perusal of the record shows that the first respondent, the proprietor of the firm is running two separate proprietary firms to deal in the trade of sale of groundnut oil. His wife is doing separate business of selling of ladies apparels in the name and style `Priti Saree Centre', which is adjacent to the shop where the respondent No. 2 is selling the groundnut oil for respondent No.1. It is to be considered that in the explanation offered at Exh-46, such is not the say of the respondents. They still continued the business at the place where they were doing the said business without holding the valid license, but only for the convenience of their customers. It is not the case of the respondents that they will correct themselves and will not commit such mistake in (18) criapl388-98 future, if there is any violation of law by their conduct. Considering this aspect, the lenient view taken by the learned trial court appears to have been taken in a casual manner, without there being any sound ground. In the circumstances, it is necessary to modify the sentence awarded to the respondents by the trial court. At the same time, this court has to take a note of the fact that the judgement impugned was rendered fourteen years back. Under these circumstances, it is unwarranted to send the respondents behind the bars by awarding the imprisonment to them. However, certainly the sentence can be modified by enhancing the quantum of fine amount.

12. In the result, the sentence recorded by the trial court to the respondents to suffer simple imprisonment till rising of the court and to pay a fine in the sum of Rs. 1000/- each, in default to undergo further simple imprisonment for one month is hereby modified and the respondents No. 1 and 2 are sentenced to suffer simple imprisonment till rising of the court and to pay fine in the sum of Rs. 2000/- (19) criapl388-98 each, in default to suffer further simple imprisonment for one month. The appeal is allowed accordingly. At the request of learned counsel for the respondents, four weeks' time is granted to the respondents to deposit the amount of additional fine today awarded by this court. The parties to act on the certified copy of this judgement and order.

13. The certified copy of this judgement and order is expedited. npj/criapl388-98 Sd/- [ A.V. POTDAR ] JUDGE