STATE OF GUJARAT Vs. CHHAGANBHAI GOVINDBHAI

JUDGEMENT

(1.) The adequacy of the sentence passed by the learned Additional Sessions Judge at Surat on 30th August, 1991 in Criminal Appeal No. 2 of 1988 is under challenge in this appeal under Sec. 377 of the Code of Criminal Procedure, 1973 (the Code for brief). Thereby the learned Additional Sessions Judge reduced the sentence imposed by the Judicial Magistrate (First Class) at Surat by his order passed on 11th December, 1987 in Criminal Case No. 47 of 1984 from rigorous imprisonment for one year and fine of Rs. 2000/- in default imprisonment for 15 days more to rigorous imprisonment for 7 days and fine of Rs. 2000/- in default rigorous imprisonment for 15 days for the offence punishable under sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (the Act for brief).

(2.) The facts giving rise to this appeal move in a narrow campass. The Food Inspector of the concerned area purchased 7 decilitre of milk from the respondent-accused. It would be equivalent to 700 milli-litre. It was divided in three equal parts. 19 drops of formalin of 40% strenght were added to each part of the sample. This was done in accordance with the relevant provisions contained in the Act and the Rules framed thereunder. One sample bottle was sent to the Public Analyst at Surat for analysis and report. It was found to be adulterated. Thereupon the Food Inspector filed his complaint in the competent court at Surat. It came to be registered as criminal case No. 47 of 1984. The charge against the respondent as the accused under Sec. 16 (1) (a) (I) of the Act was explained to him. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the accused under Sec. 313 of the Code and after hearing the arguments, by his judgment and order passed on 11th December, 1987 in the aforesaid criminal case, the learned Judicial Magistrate (First Class) (Municipal Court) at Surat convicted the accused of the offence with which he was charged and sentenced him to rigorous imprisonment for one year and fine of Rs. 2000/- in default further imprisonment for 15 days. That aggrieved the respondent herein. He carried the matter in appeal before the Sessions Court at Surat. It came to be registered as Criminal Appeal No. 2 of 1988. It appears to have been assigned to the learned Additional Sessions Judge for hearing and disposal. By his judgment and order passed on 30th August, 1991 in the aforesaid appeal, the learned Additional Sessions Judge maintained the conviction of the respondent-accused but reduced the sentence to rigorous imprisonment for 7 days and fine of Rs. 2000/- in default rigorous imprisonment for 15 days more on the ground that the respondent herein was carrying dairy milk only as a carrier and he was a poor person. The reduction of the sentence by the learned Additional Sessions Judge in appeal aggrieved the prosecution agency. It has therefore invoked the appellate jurisdiction of this court under Sec. 377 of the Code for questioning the correctness of the adequancy of the sentence reduced by the learned appellate Judge as aforesaid. The original complaint was also aggrieved by the reduction of the substantive sentence by the learned appellate Judge. He has therefore invoked the revisional jurisdiction of this court under Sec. 397 read with Sec. 401 of the Code for questioning the correctness of the order of sentence passed by the learned Additional Sessions Judge reducing the substantive sentence of imprisonment.

(3.) The respondent has appeared neither in person nor through any advocate though duly served. This court has thereupon appointed learned Advocate Kum. R.V. Acharya to represent the respondent in both the appeal and the revision. She has submitted that, on the facts and in the circumstances of the case, the respondent- accused would be entitled to acquittal by this court in this appeal.