VIVEK K. TANKHA Vs. ABHINAV DUBEY

JUDGEMENT

(1.) This revision petition has been filed by the applicant under Section 397/401 of the Cr.P.C. being aggrieved by the judgment of conviction and order of sentence dated 30.12.2019 passed by 18 th Additional Sessions Judge, Jabalpur, in Criminal Appeal No.8/15 affirming the judgment dated 10.12.2014 passed by the JMFC, Jabalpur in RCT No.13550/2011, whereby the applicant has been convicted for commission of offence of food adulteration under Section 7 (i) r/w S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act , 1954 (in short the "PFA Act") and sentenced to undergo RI for 6 months with fine of Rs.1000/-, also convicted for commission of offence of misbranding of Lipton Tree Top Orange Cold Drinks under Section 7 (ii) r/w 16 (1) (a) (i) of the Prevention of Food Adulteration Act , 1954 (in short the "PFA Act") and sen- tenced to undergo RI for 6 months with fine of Rs.1000/- and further convicted for commission of offence of selling of aforesaid items without warranty under Section 7 (v) r/w S.16 (1) (a) (ii) of the Prevention of Food Adulteration Act , 1954 (in short the "PFA Act") and sentenced to undergo RI for 6 months with fine of Rs.1000/-, with default stipulation clause as mentioned in the impugned judgment.

(2.) The facts, giving rise to this revision, are that the applicant is the nominee of the Lipton India Limited Company under the Prevention of Food Adulteration Act and is responsible to implement the provisions of the Prevention of Food Adulteration Act , 1954 (hereinafter referred to as the "PFA Act") with regard to food products of the company. The food products of the company were stored in the depot of the company situated at Panagar, District Jabalpur which was being managed by M/s. Rathore Clearing & Forwarding Agency and Mohd. Saleem was the Depot Manager. On 21.9.1989 Food Inspector Shri H. D. Dubey, inspected the depot where he found that "Tree Top Orange Cold Drinks of Lipton Company Limited were stored for sale and distribution which were misbranded and took sample of the said Tree Top Orange Cold Drinks in accordance with law and sent the same for its public analysis which was found adulterated and on inquiry from the Depot Manager, it was also found that no warranty was issued with regard to the product as required under Section 14 of the PFA Act and Rule 12 (a) of the PFA Rules, 1955 and thereafter, after getting sanction to prosecute the applicant, the Lipton India Limited Company and the Depot Manager Mohd. Saleem and other co-accused persons, a complaint was filed before the trial court and during the trial, other co-accused persons were discharged as they were not liable under the criminal law for the act of the company. During the trial, the sample of the food was also sent to the Central Food Laboratory and the sample was found adulterated and misbranded having extraneous substance. Further, there is no report that food item was injuries to health or was unsafe and after trial, learned JMFC convicted and sentenced the applicant being the nominee of the Company and also Depot Manager Mohd. Saleem. In the appeal, learned appellate court acquitted the Depot Manager Mohd. Saleem and confirmed the conviction and sentence of the applicant. Hence, this revision.

(3.) Learned Senior Advocate appearing on behalf of the applicant has submitted that though the applicant has some prima facie case even on merits, he does not want to press this revision and by giving up the plea on merits, his only submission is with regard to the sentence which has been imposed by the courts below on the ground of changes in the law. The Prevention of Food Adulteration Act , 1954 has been repealed by the Food Safety and Standard Act, 2006, w.e.f.5.8.2011 and under the Food Safety and Standards Act , 2006, the aforesaid punishable acts are not punishable with imprisonment and only penalty can be imposed and the applicant / accused is entitled to get the benefit under the changes in the law and in this regard, reliance has been placed on a judgment of Hon'ble the Apex Court in Nemi Chand V. State of Rajasthan (2016) 1 FAC 561 (SC) and clarification order reported as (2016) 1 FAC 203, in which the Apex court replying on the judgment of T. Barai v. Henry Ah Hoe and another (1982 (2) FAC 362), held as under : 3. It is not in dispute that the charge against the appellant was only of sub standardization of goods. Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant, submits that though the appellant has some prima facie case even on merits, he would be giving up the plea on merits and his only submission is about the sentence which has been imposed by the courts below. He has in this behalf, argued that there has been an amendment in the Act by the Central Amendment Act 34 of 1976 whereby Section 16A was added and under the said section, only a fine is leviable. He has drawn our attention to the judgment of this Court in ' T. Barai v. Henry Ah Hoe and Another ' [1982 (2) FAC 362] [1983 (1) SCC 177] wherein this Court held that since the amendment was beneficial to the accused persons, it can be applied even with respect to earlier cases as well which are pending in the Court. In the said judgment, the Court held as under: