HEMANTKUMAR DAHYABHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present revision application is filed by the original accused against the order of conviction and sentence passed by the learned Addl. Sessions Judge Ahmedabad in the criminal Appeal No. 142 of 1984 wherein the order of conviction under sec. 7read with sec. 16(1)(a) of the Prevention of Food Adulteration Act was confirmed but he modified the order of sentence passed by the learned Metropolitan Magistrate Court No. 6. Ahmedabad in Criminal Summary Case No. 47 of 1983 dated 30-6-1984 imposing the sentence of Simple imprisonment for six months and to pay fine of Rs. 1.000.00 in default to undergo further simple imprisonment for three months. The order of sentence was modified by the learned Addl. Sessions Judge and the accused was ordered to undergo simple imprisonment of one month and to pay a fine of Rs. 1 0 in default to undergo further simple imprisonment of three months.

(2.) The facts of the case are that the accused-applicant is running a shop on small scale basis in the name of Meenakshi Provision Store situated near St. Xaviers High School at Gopalnagar in Memnagar area of Ahmedabad City. On 1/02/1983 at 9.30 a.m. the Food Inspector Shr P. M. Modi went to the shop of the accused applicant and he found edible on kept in the shop for sale in an open tin. At the request of Mr. Modi the original complainant (sic accused) sold this groundnut oil to him. The accused was then informed that Mr. Modi wanted to purchase the same for getting the sample analysed. Mr. Modi then purchased the oil filled it in dry bottles and sealed these bottles as per the Rules and managed to forward the sample for analysis. On analysis the sample was found adulterated with castor oil. Thereafter after following the provisions of the Prevention of Food Adulteration Act the accused was prosecuted. The accused took the defence of warranty saving that he had purchased the edible oil from one Mohmadbhai Jivabhai who is carrying on his business in the name and style of Bharat Oil Depot. The learned Magistrate recorded the evidence in the presence of accused Mohmadbhai Jivabhai. On appreciation of the evidence the learned Magistrate came to the conclusion that the accused had failed to prove that the edible oil which he sold to the complainant Mr. Modi for analysis was the same which he purchased from Mohmadbhai Jivabhai of Bharat Oil Depot and acquitted the latter for the offence with which he was charged. However the learned Magistrate found the present applicant guilty of selling adulterated edible oil and convicted and sentenced film as aforesaid. Thereafter he appeal was preferred against the said order of conviction being the Criminal Appeal No. 142 of 1984 and the learned Addl. City Sessions Judge partly allowed the appeal on the point of sentence only as stated above.

(3.) Mr. G.A. Pandit the learned Advocate appearing for the applicant states that he is limiting his argument only on the point of sentence and he does not challenge the convictions He submits that the learned Sessions Judge was kind enough to reduce the sentence from six months S.I. to one months S.I. but he has not given the benefit of the provisions of the Probation of Offenders Act to the accused and therefore he submits that the fine may be maintained but so far as the imprisonment is concerned the accused should be given the benefit of the provisions of Probation of Offenders Act 1958 Mr. Dipak Trivedi the learned Add. P.P. and Mr. M. A. Panchal the learned Advocate for the Food Inspector submit that this is not a case where the benefit of the provisions of Probation of Offenders Act can be given. Mr. Panchal has brought to my notice the decision reported in A.I.R. 1973 S.C. at pate 780 while Mr. Pandit. had brought to my notice the judgment of the Supreme Court reported in AIR 1198/- S.C. page 1776. Mr. Pandit has stated that the accused-applicant should be given the benefit of the provisions of for bation of Offenders Act and he should be released.