HEALTH OFFICER SRINAGAR Vs. GHULAM NABI WAGNOO
LAWS(J&K)-1986-6-6
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 25,1986

Health Officer Srinagar Appellant
VERSUS
Ghulam Nabi Wagnoo Respondents

JUDGEMENT

DR.A.S.ANAND, C.J. - (1.) ADULTERATION of articles of food is an offence against the society and is unpardonable. Unfortunately food adulteration bag assumed alarming proportions and it therefore, becomes the duty of all those concerned with law to take all such steps as are permitted by law to wipe out this menace by bringing to book the offenders responsible for adulteration of articles of food. It is the duty of the courts to see that an offender is punished according to law and to any extent the courts do not discharge their functions properly, particularly in such social offences, the society suffers because the crime goes unpunished and the criminal is encouraged. We cannot help but voice our grave concern regarding the menace of food adulteration which as already noticed has assumed alarming proportions, It becomes the duty of the prosecution as well as of the courts to intensify their efforts and punish the offenders responsible for committing such offences against the society, in accordance, with law.
(2.) THIS is a petition seeking enhancement of the sentence awarded to the respondent by the learned Municipal Magistrate, Srinagar, for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, read with Section 7 of the said Act. The respondent was charged for the said offence and after a brief trial was convicted for the said offences on his pleading guilty and sentenced to pay a fine of Rs. 300/- and suffer imprisonment till rising of the Court. For awarding this grossly inadequate sentence, the learned magistrate recorded that he was satisfied from the plea of guilty recorded by the respondent that he was repentant of his action and that he did not intend to repeat the offence. Mr. Naik, learned counsel for the appellant, the Srinagar Municipality, has rightly argued that the reasons given by the learned Municipal Magistrate, Srinagar for not imposing atleast the minimum sentence as prescribed by law, are neither adequate nor special. Learned counsel argued that the Prevention of Food Adulteration Act provides that when convection is under Section 16(1)(a)(i) for selling an adulterated article coming within the definition of Section 2 of the Act, the minimum sentence to be awarded is six months imprisonment and a fine of Rs. 1000/- but that under the first proviso to Section 16.(1) of the Act, the Magistrate has the jurisdiction to award a sentence, less than the minimum prescribed under the section, but that for doing so, he must record adequate and special reasons. Argued Mr. Naik, that where the reasons recorded by the magistrate are irrelevant or extraneous or grossly inadequate the High Court must rise to the occasion and in exercise of its revisional powers to enhance the sentence imposed on the respondent so that the menace of food adulteration is checked to some extent. We have no quarrel with the proposition enunciated by Mr. Naik and, as a matter of fact the submissions made by him are borne out from the plain language of the statute itself. It is the duty of the court to award proper sentence prescribed by law where the offence against an accused is established and even if a lesser sentence has to be impose, where the same is authorised by law, it must be imposed after following the mandate of law authorising the imposition of lesser sentence. In the present case however, we find that there has been not a proper trial so far as the respondent is concerned. The charge against the respondent was that he sold mustard oil which was adulterated. The adulteration which was found by the Public Analyst was basically that it contained suspended/foreign/separated matter. It appears that the statement of the Food Inspector, Shri Chaman Lal was recorded by the learned Municipal Magistrate. The Food Inspector narrated the manner of taking the sample and the proceedings taken by him till the filing of the complaint in the court of Municipal Magistrate. The report of the Public analyst which is admissible under Section 13 of the Prevention of Food Adulteration Act, 1954, was proved by the Food Inspector. The learned Magistrate framed a charge against the respondent for an offence under Section 7/16 of the Prevention of Food Adulteration Act on the sarne day i.e. on 19.12,1980, when he recorded the statement of the Food Inspector. The charge was put to the respondent who recorded a plea of guilt and went on to state in reply to the question as to why he was recording the plea of guilt that he was doing so on account of poverty."Thereafter, the learned Municipal Magistrate on the same day recorded the order of conviction and sentence. In his order dated 19-12-1980, the learned Municipal Magistrate recorded that he had recorded the statement of the complainant and that "the accused had filed a written application stating therein that he admits his guilt". In vain, we have tried to search the written application of which reference has been given by the learned Municipal Magistrate from the court file. There is no such application on record, Even the index does not show that any such application was placed on the, record. It appears that in his anxiety to dispose of the case on the same day, the learned Magistrate made a mention of the existence of an application which. in fact, is not traceable from the record. This, in our opinion, is a very serious infirmity, for we cannot appreciate as to what influence was working on the mind or the learned magistrate when, on 19.12.1980, he recorded the existence of the application and also the plea of guilty of the accused respondent and proceeded to convict him and yet let him off by a sentence which is not permitted by law In the impugned order dated 19.12.1990, the learned Municipal Magistrate appears to have been influenced only by the plea of guilty recorded by the respondent in answer to the charge framed against him. Even otherwise we find that the entire case was dealt with by the learned Municipal Magistrate on 19.12.1980 itself and this unseemly haste has created an impression on our minds that perhaps plea bargaining took place between the prosecution, defence and the learned Magistrate on the basis of which an undertaking appears to have been arrived at between the three parties that the respondent, on pleading guilty, shall be let off with a nominal sentence of imprisonment till rising of the court and a fine of Rs. 300/. As already noticed even if 1st proviso to Section 16 ([)(a) of the Prevention of Food Adulteration Act, was attracted, ever then this sentence could not have been imposed. The liberty of an individual is sacrosanct. No person can be deprived of his liberty except in accordance with the presumption of innocence with which an accused person is put to trial gets displaced only When on he basis of the evidence, properly brought on the record, the accused is found guilty. The officers while administering justice must show a great sense of responsibility and anxiety and discharge their functions Judiciously and properly, where it concerns the liberty of a person. In our opinion, the course adopted by the learned Municipal Magistrate, Srinagar and the serious infirmity to which we have referred in our order, as appearing from the impugned order dated 19-12-1980, show that the learned magistrate did not properly apply his mind to the facts of the case and it cannot be ruled out that he was a consenting party to the respondent being persuaded to enter the plea of "guilt" and to act mechanically on such a plea. This sort of practice is most reprehensible and we strongly disapprove of the same. The courts must administer justice according to law. If this practice is not checked, it can encourage corruption and to the lowering of the standards of justice. Since, we are not satisfied that the plea of guilt had been properly recorded and are also of the opinion that the plea of "guilty" appears to have been extracted from the accused on bargaining, we must in exercise of our revisional powers under the Code of Criminal Procedure, set aside the order of conviction and sentence recorded against the respondent by the learned Municipal Magistrate, Srinagar but in view of the fact that the offence alleged against the respondent is a social offence against the society and with a view to see that the menace of food. adulteration is checked, we remand the case to him for fresh trial so that he may proceed with the case from the stage where the statement of the Food Inspector was recorded. Learned Magistrate shall expeditiously dispose of the case in accordance with law and the observations made above ignoring the plea of guilty. The respondent through his learned counsel is directed to appear before the learned Municipal Magistrate, Srinagar, on July 10, 1986 on which date the trial Magistrate may bind the respondent by seeking fresh bail bonds for his appearance in the court on the dates of hearing. The record of the case is directed to be sent back to the trial court without any delay.;


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