STATE OF GUJARAT Vs. KRUSHNMORARI RAMKRUSHNA GUPTA
HIGH COURT OF GUJARAT
STATE OF GUJARAT
Krushnmorari Ramkrushna Gupta
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(1.)In these cases it seeMs that either the learned Magistrate is not aware of the seriousness of the offence the law laid down by this Court as well as the Supreme Court in various decisions and is not mindful of the fact that under the provisions of law it was his duty to administer the law as per the dictates of the Parliament and to impose minimum sentence provided under the Act. It is high time that the lower Judiciary should realize that it is their duty to follow the law laid down by this Court in various decisions and to implement them.
(2.)From the shop owned by opponent No. 1 known as Anil Kirana Stores at Sevalia of Thasra Taluka the Food Inspector purchased a sample of turmeric powder in presence of panchas on 1-5-1984 at about 5-30 p.m. The sample was taken from packed tin. Opponent No. 1 produced a bill showing that the said turmeric powder was purchased from opponent No. 4. Opponents Nos. 2 3 & 5 are the partners of the firm-opponent No. 4. The complaint was filed on 5-2-1986. The Court issued summons to the opponents. On 8-4-1986 the opponents filed an application Ex. 9 wherein in the first line it is stated that they admit the offence which is registered against them under the Prevention of Food Adulteration Act. In the second line it has been stated that they have not committed the alleged offence; they are poor businessmen and they have not adulterated any article and they are innocent persons. It has been further mentioned that in future they would not commit such type of offences. They prayed that mercy be shown to them as they are persons of poor strata having large family and they had no intention to commit any such offence and that it was their first offence. After receipt of the aforesaid application Ex. 9 the learned Magistrate has recorded their plea wherein a question is asked to them whether they admit the offence or not and in reply to the said question they pleaded guilty. On the same date the learned Magistrate convicted the opponents for the offence punishable under Sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act 1954 and imposed sentence of imprisonment till rising of the Court and a fine of Rs. 1200.00 in default three months S.I. In the judgment the learned Magistrate has observed that the accused has pleaded guilty to the offence by stating that this was their first offence and they are of poor class and they assured that in future they would not commit similar offence. He further observed that from the turmeric powder of which sample was taken adulteration was of pulse starch and of eatable colour which was not injurious to the human health and therefore he has imposed the sentence as stated above.
(3.)It seems that the learned Magistrate has not bothered to refer to Sec. 16 which provides that in such type of offences in addition to penalty to which the accused is liable under the provisions of Sec. 6 minimum sentence prescribed is six months and a fine which shall not be less than one thousand rupees Under the first proviso to Sec. 16(1) for any adequate and special reasons to be mentioned in the judgment the Magistrate is empowered to impose sentence of imprisonment for a term which shall not be less than three months and a fine which shall not be less than five hundred rupees. Under sub-sec (1A) if the adulterant is injurious to health he is required to impose minimum imprisonment for a term which shall not be less than one year. The further provides that if the article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code then the imprisonment shall not be less than three years and it may extend to term of life. Similar is the provision under sub-sec. (1B) the Act The Parliament has taken further case to see that the offenders under the Act are not release on probation under the Probation of Offenders Act or under Sec. 360 of the Code of Criminal Procedure by adding Sec. 20AA. Apart from the aforesaid legislative mandate it seems that the learned of Magistrate has ignored the law laid down by this Court in various decisions. In the State of Gujarat v. Ramanlal 1974] 15 GLR 545. the Court has exhaustively dealt with this aspect of the matter and has pertinently observed that even law has provided that mens rea is not a necessary ingredient of the offences under the Prevention of Food Adulteration Act. Minds consciously work out a strategem by which at the cost of unsuspecting public. a man wants to thrive himself and in the process to play havoc with the lives of the individuals who deal with him. Such a man cannot but he dealt with under any theory of punishment other than deterrent punishment. The Court further held as under:
"Theory of deterrent punishment postulates not only that the one who indulges into such activity would by gravity of the sentence be deterred from indulging into it over again but those like minded in the society looking to the misfortune that befall one of their confederates would be deterred from resorting to the same anti-social activity. If that is to be the purpose of deterrent punishment I cannot conceive of any case better than the one under the Prevention of Food Act. And this Court is not called upon to decide at this stage as to which theory of punishment the legislature has kept in view while prescribing punishment for the offences under the Prevention of Food Adulteration Act. There is a clear legislative exposition while amending Sec. 16 in that the judiciary which ought always to be trusted for deciding the quantum of punishment in each individual case because no two individual cases are alike has been denuded or stripped of its powers and the legislature interposed itself by saying that such and such shall be the punishment irrespective of any facts of any individual given case."
The Court further dealt with the question of adequate and special reasons and held that the offender was a first offender is no ground or imposing less than the minimum sentence.
"The Court observed that the word `special signifies special to the facts of the case or the accused and adequacy of the reasons has to be examined in light of the nature of the offence magnitude of the offence circumstances in which it is committed and degree of possible harm caused. It would be worthwhile to reproduce the following paragraph of the aforesaid judgment where the Court has considered which type of grounds would not be adequate and special reasons for imposing less than the minimum sentence: Dealing with the question of adequate and special reasons at this very stage it is necessary to observe that the reasons assigned in almost all the cases before this Court can either be said to be adequate nor can they be said to be special. By and large. reasons which have appealed to the learned Magistrate are (i) that offender was a first offender (ii) that he was a petty trader and not a manufacturer; and (iii) that be showed repentance by pleading guilty to the charge. Now the first reason namely that offender is a first offender could hardly be said to be adequate and special reason because the legislature itself has done away with any distinction between first offender second offender and third and subsequent offender. If the legislature ever wanted any treatment of special nature being accorded to the first offender it was not at all necessary for it to amend Sec. 16 which prior to the amendment did recognise distinction between sentences for the first offence second offence etc. Once the legislature stepped in and did away with this difference between first offence and second offence the Court cannot for its own reasons bring in something which the legislature rejected. Second ground which appears to have appealed to the learned Magistrate was that the offender in question was a petty trader Even this does not appear to be adequate and special reason. In a city like Ahmedabad people belonging to the weaker section of the society and staying in outlying areas would of necessity be required to approach petty traders having small shops in their locality for purchase of their day to day requirements. It is those people belonging to either backward class or weaker section of the society who would fall a pray to the machination of such petty traders. A man belonging to the affluent section of the society would buy his spices and other foodstuffs for the whole year and prepared by more sophisticated process and is not likely to be cheated out of his wit day in day out. But large bulk of our population belongs to the weaker section of the society. who of necessity are required to buy foodstuffs and spices in small quantities out of their daily earnings and would be buying the same from the petty traders and therefore the activities of these petty traders would be all the more harmful. Hence that aspect in my opinion would be hardly relevant while deciding the quantum of sentence. It must be confessed that while deciding the quantum of fine that may be imposed upon such petty trader his capacity to pay may be taken into consideration. But when he is to be given substantive sentence the fact that he is a petty trader is hardly a relevant consideration and must be wholly ignored. This ground that appealed to the learned Magistrate was that the man showed repentance by pleading guilty. Any one having slightest experience of Criminal Courts would hardly believe that plea of guilty flows ever from repentance. It either flows from the substantive sentence staring in ones face and tries to generate sympathy which may be convenient both to the Court and litigant namely that the case is soon disposed of without further trial and the accused escapes by paying a paltry fine and both rejoice as a result of it in the process killing the entire spirit of legislation. This tendency must be put down if neccssary with a heavy hand. Plea of guilty not only does not indicate repentance but more often it is the result of bargain and judiciary must frown upon such bargain. One is very much reminded of an observation which was made years back that confession is made not necessarily because one feels sorry for What he has done but one is worried about what is in store for him soon after. Such confessions in my opinion are a cloak to generate false sympathy in the Court and could not be countenanced. One fails to understand what the learned Magistrate has to do with plea of guilty. Assuming that the accused pleads guilty and the case is over he starts another case for him one case is as good as any other case. But it was said that an atmosphere was created or generated in the Court where these cases are tried which almost impelled the accused to plead guilty. It not possible to believe that some peculiar atmosphere was prevalent in the Court of law and sheer atmosphere of the Court induced an otherwise innocent man to plead guilty to the charge. If the accused is really guilty and pleads to the same he in no way advances the cause of justice and if he is really innocent and yet pleads guilty it is a tendency which must be set at naught. Therefore viewed from either angle this voluntary confession or plea of guilty can hardly be said to be either adequate or special reason for awarding less than the minimum sentence. There can never be generosity in determining the reasons which can be said to be adequate or special. Word `special signifies special to the facts of the case or the accused and adequacy of the reasons has to be examined in light of the nature of the offence magnitude of the offence circumstances in which it is committed and degree of possible harm caused. "
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