MUNICIPAL CORPORATION, DELHI Vs. KHAIRATI LAL

JUDGEMENT

(1.) The respondent was prosecuted on the written complaint of Shri Ved Parkash, Assistant Municipal Prosecutor, M.C., Delhi, on the allegations that in contravention of the provisions in S. 7, Act 37 of 1954, read with the rules framed under that Act, on 21-12-1966, in the locality known as Pul Bangash, Delhi, the respondent had kept for sale a stock of substandard red chillies, when after due notice, Shri Nand Kishore P.W., food inspector purchased from the respondent, a sample, for analysis, from that stock. The sampling was made in accordance with law and one of the sealed samples of the material, so purchased, was subsequently sent for examination. According to the report, Ext. P.E., of the public analyst, the sample sent for examination, was found to contain total ash to the extent of 8.13% as against the prescribed maximum of 8%, and ash insoluble in HC1 to the extent of 2.06%, as against the prescribed maximum of 1.25%, whereupon the food inspector concerned made a report for the prosecution of the respondent. The trial Magistrate charged the respondent under S. 7/16, Act 37 of 1954, for having, on 21-12-1966, at the foot path Pul Bangash, Delhi, kept, for sale a stock of sub-standard chillies and for having sold, for analysis to the food inspector a sample from that stock. The respondent pleaded not guilty, but after trial, the respondent was convicted and sentenced. This petition under S. 435 Cr. P.C. has been tiled on behalf of the complainant for the revision of the order, passed by the trial court, and for a recommendation to the High Court for the enhancement of the sentence awarded to the respondent. The respondent opposes.

(2.) I have heard the Municipal Prosecutor as also learned counsel for the respondent and I have also gone through the relevant records. The case is recommended to the High Court for the following reasons :

(3.) There is no dispute that this case of the respondent is covered in the proviso to sub-section (1) of S. 16, Act 37 of 1954, in as much as the relevant offence for the commission of which the respondent was convicted, falls in sub-clause (i) of clause (a), sub-section 1) of S. 16 of the Act, and is in respect of an article of food, which was found adulterated under sub-clause (1) of clause (1) of S. 2 of the same Act. In such a case for any adequate and special reasons, to be mentioned in the judgment, the trial court had the power to impose a sentence of imprisonment for a term of less than 6 months or of fine less than Rs. 1000.00, or of both imprisonment for a term of less than 6 months and fine of less than Rs. 1000.00. The sentence awarded in this case by the trial court to the appellant is, thus, not wholly without jurisdiction. In awarding the sub-minimum sentence to the respondent, the trial court has observed that the respondent is a petty trader and sell goods on a pavement. On behalf of the respondent, reference is made to 1967 Allahabad Criminal Cases 176 in support of the proposition that in such a case, for the reasons referred to above, a sub-minimum sentence could be awarded. In the case, referred to above, it was observed that the exceptional circumstances for the award of sub-minimum sentence may relate to i he pettiness of trade carried on by the vendor. It is true that in this case, there existed some reasons for the award of sub-minimum sentence to the respondent, but taking into consideration the extent of sub-standardness found to exist in the sample of this case, the sentence awarded by the trial Magistrate to the respondent is disproportionately low and ridiculous. It is, therefore, not possible to uphold the sentence awarded in this case by the trial court to the respondent.