THE STATE Vs. THAKARDAS JEEVANDAS SHAH

JUDGEMENT

(1.) The respondent in this appeal was prosecuted in the Court of the Judicial Magistrate, First Class at Indapur in Criminal Case No. 372 of 1973 for an offence punishable under section 16(1)(a)(i) read with section 7(i) of the Prevention of Food Adulteration Act and was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 1500.00. In default of payment of fine rigorous imprisonment for three months was stipulated. The prosecution was based on the fact that the respondent sold to the Food Inspector of Pune Circle 450 grams of Shahajira which were later found to be adulterated on an analysis carried out by the Public Analyst. The respondent preferred an appeal, being Criminal Appeal No. 26 of 1976, which was partly allowed by the learned Additional Sessions Judge of Pune by his judgment and order dated 8th of June, 1976. Confirming the conviction the learned Additional Sessions Judge reduced the sentence of imprisonment for six months to the rising of the Court. The learned Additional Sessions Judge further reduced the sentence of fine from Rs. 1500.00 to Rs. 1000.00 but enhanced the default sentence from rigorous imprisonment for three months to rigorous imprisonment for six months.

(2.) The State is rightly aggrieved by the leniency shown by the learned Additional Sessions Judge who found that the conviction of the respondent was sustainable in law. The State has preferred this appeal for enhancement of the sentence imposed by the learned Additional Sessions Judge on the respondent. Mr. Deshmukh, the learned Public Prosecutor appearing in support of the appeal, pointed out that the learned trial Magistrate had, as noticed by the learned Additional Sessions Judge himself, awarded minimum sentence prescribed by law. If that were so, says Mr. Deshmukh, the learned Additional Sessions Judge had no jurisdiction to reduce the sentence merely on the ground that the respondent is the first offender and a petty grocer shop owner. He also pointed out that the learned Additional Sessions Judge has committed a manifest error in holding that the respondent who is shown to be about 49 years of age was fairly advanced in age. All these submissions of Mr. Deshmukh are fully justified. Had Mr. Agarwal, the learned Advocate appearing in support of the respondent, not proceeded to challenge the legality of the conviction itself would have accepted this appeal and sentenced the accused to a longer term of imprisonment. If the law prescribes minimum sentence without growing any discretion to the Court then the Court has no jurisdiction to circumvent that law on the ground that the offender is the first offender or by taking into consideration factors which are not provided for in the statute itself prescribing punishment. The learned Additional Sessions Judge was undoubtedly in error in proceeding to reduce the sentence merely because the respondent is the first offender and a petty grocery shop owner or that he was fairly advanced in age.

(3.) Mr. Agarwal predictably raised upon a judgment given by me in Criminal Appeal No. 698 of 1977 with Criminal Revision Application No. 531 of 1977 on 19th of July, 1978. In that judgment considering all the relevant provisions under the Prevention of Food Adulteration Act and the Rules made thereunder I had, following another judgment of Dighe, J., held that the provisions contained in R.I. 17 are mandatory and non-compliance with the same would vitiate the trial. R.I. 17, as it then stood, requires that the container, which has been wrapped and sealed as provided in R.I. 16, shall be sent in a sealed packet enclosed with memorandum in Form 7 in an outer cover addressed to the Public Analyst. R.I. 7 obliged the Public Analyst or an officer authorised by him to compare the seal on the container as well as on the outer cover with the specimen impressions received separately. Reading these two rules together, it becomes apparent that the outer cover in which the sealed container and the sample and the memorandum in form 7 are sent is itself to be sealed. On going through the evidence of the Food Inspector in this case and also on reading the report of the Public Analyst it is easily seen that the memorandum in form 7 has not accompanied the sealed container in a cover which itself is sealed. In my opinion, there is a clear non-compliance with R.I. 17 and on the view which I have taken in the case referred to above, the respondent will be entitled to acquittal.