M. L. SHRIMAL, J. - (1.) THIS revision petition is directed against the judgment, dated 10th August, 1982 of the learned Sessions Judge No. 2, Baran upholding the conviction of the accused-petitioner under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'), but reducing the sentence from the one year's rigorous imprisonment to three months R. I. and to pay a fine of Rs. 1000/ -.
(2.) THE prosecution story in nut-shell is that on February 24, 1972 Food Inspector found the accused-petitioner selling milk. THE Food Inspector, after disclosing his identity purchased 660 Mil. Ltr. of milk. THE milk was divided into three parts, each of which was filled in three clean bottles. In all the three bottles requisite quantity of formaline was added. THE bottles were sealed in the presence of the petitioner. A memorandum, containing the details of the action taken by the Food Inspector was prepared. One sample bottle was sent to the public Analyst along with a specimen of the seal impression. THE form containing specimen seal was separately sent to the Public Analyst. THE third sample bottle was retained by the Department. THE sealed bottle was given to the accused. Another sample bottle was duly received by the Public Analyst and he found the bottle properly sealed and fastened and the seal was noticed by him to be intact, unbroken and similar to the seal impression given in the memorandum. He analysed the contents of the bottle and found the milk to be adulterated. In his opinion the sample of the milk contained 40% of the added water. A complaint was filed in the court of the Judicial Magistrate, Baran under section 7/16 of the Act. THE accused denied his complicity in the crime. THE prosecution examined two witnesses in support of its case. THE accused did not produce any defence witness THE learned Magistrate found the accused Hazari Lal guilty of offence punishable under sections 7/16 of the Act and sentenced him to one year's rigorous imprisonment and to pay a fine of Rs. 1000/ -. THE appeal filed by the accused petitioner came up for decision before the learned Additional Sessions Judge, Baran, who after perusal of the record and after considering the entire evidence in the light of the arguments advanced before him, maintained the conviction of the accused. He, however, reduced the sentence from one year's rigorous imprisonment and to pay a fine of Rs. 1000/- to three months' rigorous imprisonment and to pay a fine of Rs. 1000/ -. Hence, this revision. Keeping in view the concurrent findings of the two courts and the limited jurisdiction of this court while exercising revisional jurisdiction, the learned counsel for the petitioner has not and rightly so, challenged the conviction of the accused on merits. I have also looked into two judgments of the courts below and am satisfied that the guilt has been brought home to the accused beyond reasonable doubt. The only point seriously pressed before this Court is that the court should release the accused on the sentence already undergone or the petitioner should be given the benefit of section 4 of the Probation of Offenders Act, 1958. The argument of the learned counsel for the accused is that the occurrence is of February 24, 1972 and the revision has come up for admission to this Court in the year 1982. Thus, the accused has suffered mental agony of a criminal trial for more than ten years. As such the sentence may be reduced to the term of imprisonment already undergone or that he may be given the benefit of section 4 of the Probation of Offenders Act, 1958. In support of his contention he has placed reliance on Vivien Joseph Ferreira vs. The Municipal Corporation of Greater Bombay (1), Paramjit Singh vs. The Municipal Corporation of Delhi (2) and Jagdish Prasad vs. State of Delhi (3 ). First I will consider the question of quantum of sentence. In a case reported as the State vs. Sanwala (4) the division bench of this Court had the occasion to consider the quantum of sentence. In this case Hon'ble Beri J. , as he then was, speaking for the Court, observed as under: - "we have already observed in the State vs. Beharilal that the Legislature while amending the Prevention of Food Adulteration Act provided a minimum sentence of 6 months' rigorous imprisonment and a fine of Rs. 1,000 for selling adulterated food We said "this is an expression of the righteous indignation of the community against offences of this kind with the object of preserving and promoting the well being of the society. A relaxation from the rigour of minimum is permitted for any adequate and special reasons to be mentioned in the judgment. The ambit of the court's discretion in awarding a sub minimum sentence is to be regulated by reasons which are special as distinguished from common place. Such reasons have to be adequate that is sufficiently weighty. The Court has to further express those reasons in the judgment enabling the superior courts and the Society to know the grounds for the grant of indulgence. What could be adequate and special reasons for imposing a sub minimum sentence ? Such reasons must necessarily relate to the gravity of the crime, the position of the offender and the surrounding circumstances. The court while awarding punishment has to seriously consider the commands of law and the ambit of the providing minimum substantial pecuniary punishment is to discourage and deter enti-social elements in society, who motivated by avarice, cause incalculable harm to human health. The need for amending this part of the law presumably arose from the prevalence of the evil. " In Municipal Council, Jaipur vs. Sitaram (5), while setting aside the acquittal of the accused after considering almost all the cases decided by this Court on the point of sentence relating to the offences under the Prevention of Food Adulteration Act, sentenced the accused to three months' imprisonment and to pay a fine of Rs. 500/- In Champalal vs. State of Rajasthan (6) the question regarding applicability of the provisions of the Probation of Offenders Act and the quantum of sentence was considered by me. In that case also the offence for which the accused was charged was committed in February, 1968 and the revision came up for decision in September, 1976, The accused was given the benefit of the proviso to Section 16 of the Act and the sentence awarded to him was reduced from six months' rigorous imprisonment to the period of three months. Recently in the case of State vs. Ganpat (7), a division bench of this Court, to which I was party, after setting aside the acquittal of the accused awarded sentence of three months' simple imprisonment. In another case, Nagar Parishad, Alwar vs. Ganga Lahari (8), Hon'ble G. M. Lodha, J. while accepting the State appeal set aside the acquittal of the accused and sentenced him to six months' rigorous imprisonment and to pay a fine of Rs. 500/. Thus, it has been the consistent practice of this Court to award a sentence of three months' imprisonment and not less even in cases where the trial court acquitted the accused.
(3.) NOW coming to the case in hand, the accused petitioner was found selling adulterated milk on February 24, 1972 as also on October 14, 1972. He was prosecuted and convicted in the cases relating to the offences committed by him on both the occasions. His convictions have been maintained by the appellate court. Both the revisions arising out of the judgments of the same date have been listed before me. He is undoubtedly a previous convict. Reference in this connection be made with advantage to Emperor vs. Lal (9 ). In the facts and circumstances of the case when the accused is previous convict, the substantive sentence of three months' imprisonment awarded to the accused-petitioner cannot be said to be excessive. Learned counsel for the petitioner placing reliance on Jagdish vs. State of Delhi (supra) and Paramjeet Singh vs. Municipal Corporation, Delhi (supra) urged that the petitioner should be given the benefit of the provisions of the Probation of Offenders Act As the accused has been convicted in two cases by the Courts below and his convictions have not been challenged on merit, he cannot get the benefit of the provisions of the Probation of Offienders Act. Besides, in the above noted two judgments, the decision in P. K. Tejani vs. Mahadeo Ramchan-dra Dange (10) was not considered This case was decided by a five Judges Bench. Hon'ble Krishna Iyer J. speaking for the Court observed as under: - "the kindly application of the probation principle is negatived by the imperative of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose antisocial operations, disguised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process. Neither casual provocation nor motive against particular persons but planned profit-making from numbers of consumers furnishes the incentive not easily humanised by the the repeutic probationary measure. It is not without significance that the recent report (47 reports) of the Law Commission of India has recommended the exclusion of the Act to social and economic offences by suitable amendments" In the same case it was further observed: - "we are not unmindful of the possibilities of village victuallers and tiny grocers being victimised by dubious enforcement officials which may exacerbate when punishments become harsher, and the marginal hardships caused by stern sentences on unsophisticated small dealers. Every cause has its martyr and Parliament and Government not the Court-must be disturbed over the search for solutions of these problems. " The learned Judge further observed: - "the learned Magistrate, we are constrained to observe, has completely failed to appreciate the gravity of food offences when he imposed a naively negligible sentence of one hundred rupees fine. In a country where consumerism as a movement has not developed, the common man is at the mercy of the vicious dealer. And when the primary necessaries of life are sold with spurious admixtures for making profit, his only protection is the Prevention of Food Adulteration Act and the Court. If offenders can get away with it by payment of trivial fines, as in the present case, it brings the law into contempt and its enforcement a mockery. " It is the settled position of law that when a judgment of larger Bench is not cited before the supreme Court and if there are two conflicting judgments, the judgment of the larger Bench is to be followed by the lower Courts. Reference with advantage may be made in this connection to Mattulal Vs. Radehy Lal (11 ). Relevant portion of this judgment appears at page 2556 (para 22), which reads as under: "it is also to be born in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this court in Union of India V. K. S. Subramanian (Civil Appeal No. 212 of 1975, decided on July 30, 1976) to which one of us was a party, is to try to find out larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, law is followed by this Court itself. " ;