JANARDAN SARVOTTAM RAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a revision application by original accused No. 1. The petitioner -accused No. 1 was admittedly in charge of a State Transport Canteen at Atit in Satara District, which was run by his father at the time of the commission of the present offence. While the father was away to South Kanara, the petitioner was in charge of the canteen on June 15, 1973 and at least a fortnight before that. The food inspector took sample of a sweet called ' Bundi Ladu'. After performing the necessary formalities, he sent the sample to the public analyst for his examination and report. The sample was found to be Adulteration inasmuch as coal tar dye was used as a colouring material. On these facts the prosecution was launched against accused No. 1 and his father accused No. 2. After contesting the case for some time, accused No. 1 pleaded guilty to the charge. The learned Magistrate, accepted the plea of guilty at that stage and convicted the accused under Section 16(7)(a)(i) of the Prevention of Food Adulteration Act, 1954. He sentenced him to suffer S.I. till the rising of the Court and to pay a fine of Rs. 1,000 or in default to suffer S.I. for a period of three months. Fine was immediately paid. The father, who was away from Atit, was acquitted.

(2.) WHEN this matter came to the 'knowledge of the Sessions Judge, Satara, 'from a newspaper report, ho sent for the records of the case under the powers of revision under Section 397 of the Criminal Procedure Code, 1973 (hereinafter re - ferred to as the 'new Code'). After issuing notice to the accused and after hearing the prosecutor, as well as the accused the learned Sessions Judge by a long order revised the sentence as he found that the order of sentence by the Magistrate was not legal and not in consonance with the provisions of the Prevention of Food Adulteration Act. He considered several aspects of the matter including the benefit to be given under the Probation of Offenders Act and ultimately found that the facts of the case required that the minimum sentence required to be imposed under the provisions of the Prevention of Food Adulteration Act must be imposed upon the present accused. Accordingly he sentenced him to suffer R.I. for six months and a fine of Its. 1,000 in default to suffer further R.I. for three months. Being aggrieved by that order, the present revision application has been filed by the accused.

(3.) THE first point raised is whether in respect of a prosecution launched and cognisance taken much before the coming into force of the new Code, what procedural Code, whether old or new will govern not only the hearing of this case but its ultimate disposal including all appellate and revisional proceedings which can arise subsequent to the decision of the trial. In fact, according to the petitioner, to a prosecution of this type the old Code applies and not the new Code, even in the matter of exercising revisional jurisdiction. The corollary of this proposition is that in that case under the old Code the Sessions Judge had no power to enhance the sentence but he could at best make a report to the High Court. The second point raised is that even assuming that the new Code applied, the Sessions Judge had no power to enhance the sentence and on a true construction of Sub -section (2) of Section 399 read with Sub -section (7) of Section 401 and further read with Section 386 of the new Code, it is the High Court alone that can enhance the sentence and not the Sessions Judge.