JUDGMENT
D.L. Mehta, J.
1. This revision petition has been preferred against the judgment and sentence passed by the District and Sessions Judge, Jaipur District, Jaipur, dated 8th November, 1984, in Appeal No. 74 of 1979 whereby the learned Sessions Judge affirmed the conviction of the petitioner under Section 7/16 of the Prevention of Food Adulteration Act.
2. The brief facts giving rise to this revision petition are that on 22nd December, 1976 the petitioner was taking two drums of milk. He was intercepted and checked by Shri Gopal Lal Saini, Food Inspector and 660 grams of she goat milk was taken by him as sample. It was divided into three equal parts and was packed in three fials, one fial was given to the petitioner. Sanction for the prosecution was also obtained. Public Analyst found the milk adulterated. Report of the Public Analyst is Ex. P 6. Public Analyst reported that the sample is adulterated by reason of abstraction of about 13% of its original fat. This report is dated 29th January, 1977 and is marked as Ex. P 6. Sample was received by the Public Analyst on 24th December, 1976 vide Ex. P 7.
3. Mr. Jain appearing on behalf of the petitioner submitted that the report was received on 29th January, 1977. Sanction was obtained on 30th March, 1977. He further submitted that the prosecution was hunched on 27th July. 1977. He submits that his client has been deprived of the right of getting the sample examined or making a prayer to the court for getting the third sample examined. He further submits that the copy of she report of the Public Analyst was not supplied to him within 10 days as required under the law.
4. The next contention of Mr. Jain is that the evidence is not credible and the accused should not be convicted on the basis of such evidence. In the alternative Shri Jain prayed that the accused is a poor man. The case relates to the year 1976, as such, the benefit of Probation of Offenders Act should be extended in his favour.
5. On the other hand, learned Public Prosecutor Mr. Lokesh Sharma submitted that during the appeal as well as at the time of filing of the revision petition the objection relating to the non-supply of the copy of the report of the Public Analyst has not been taken. He further submits that even during the trial this objection was never raised He submits that this objection cannot be allowed to be raised for the first time in the arguments before the revisional court. The second contention of the learned Public Prosecutor is that the benefit of Probation of Offenders Act cannot be extended to the economic offenders particularly in the light of the amendment. The third contention of the Public Prosecutor is that the evidence is credible and it has been proved beyond reasonable doubt that the accused used to sell the adulterated milk. He has invited my attention to the statement recorded under Section 313, Cr.PC in which the accused admitted that he was selling the milk. The sample of the milk was taken by the Food Inspector. This fact has been admitted by the accused in his statement that he purchased the milk from different persons and sold it in the market.
6. I have heard the rival contentions of both the parties and perused the record. The object and purpose of the Food Adulteration Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food. Offences relating to Food Adulteration have far reaching consequences on the entire community. The law relating to the Prevention of Food Adulteration is being defined with immunity and this evil has assumed an alarming magnitude. The health of the entire nation is exposed to grave danger and all those who are concerned with the enforcement of the law are duty bound to do something to save the health of nation.
7. Food Adulteration Act though penal in nature if it is capable of two constructions; then that construction should be preferred which furthers the policy of the Act passed. It is well settled that in construing a welfare legislation the court should adopt what is some time described as beneficial rule of construction. The same applies to this Act.
8. The doctrine of benefit of doubt cannot be and should not be stritched to that extent which endangers the life of the nation, the health of the community.
9. It is unfortunate part of the enforcement agencies, i.e. Investigating Agencies, Prosecuting Agencies and Penalising Agencies that the Act has not been constructed as a beneficial legislation, but it has only been looked into as a penal legislation. It is the duty of the Court to strike a balance between the penal legislation and a beneficial legislation and the doctrine of benefit of doubt should not be stretched to a point where the life of the nation is in danger.
10. The Essential Commodities Act, the Food Adulteration Act have been amended for time to time to see that the production and distribution is equitable and the consumers get good food for their health. There is a joke in the country that it is difficult to get unadulterated poison. This thinking shows that the adulteration has gone to that extent that it needs a check. Check does not mean a liberal check it means a prevention with iron hand.
11. Mr. Jain is correct when he submits that the real offenders, producers, big business magnets generally escape the liability and poor milk vendors are prosecuted by the Prosecuting Agencies to increase the number of prosecution. The real need of the time is that the big fishes should be prosecuted and should be dealt with an iron hand to set an example before the society. This cannot be done by the court. It can only be done by the executive and particularly by the Investigating Agency. It is the duty of every citizen to see that the crime is checked. It is also the duty of the officers of the State that the big fishes do not escape the provisions of law. We should feel that we are the citizens of the country who rule the country and are not the subjects who are ruled by the Rulers. In facts, in our democratic society citizens are the rulers and the persons entrusted with the execution of the policy and implementation of the law are the servants of the citizens. All the three wings, namely, Judiciary, Executive and the Legislature are the servants of the citizens. We judges may say that we are not Government employees but we cannot say that we are not the employees of the citizens. The crime rate has increased, particularly in economic offences. White Collar offenders are real offenders and they should be dealt with an iron hand. A person who commits crime under the IPC generally commits an offence against other person. Economic offenders generally commit crime against the community, society and the nation. Taking note of it the legislature in its wisdom has amended the Prevention of Food Adulteration Act and the Essential Commodities Act number of times to make it more stringent, more penal. There remains a deficiency in applying the law, may be because of inefficient prosecution, ulterior motive prosecution and a soft corner of the Judges who are deciding the cases towards the white collar offenders. One can read writings on the wall. We are always reading of corruption in the Society, we cannot blame one wing of the State or the other wing of the State. All the three wings of the State namely, Judiciary, Executive and Legislature are responsible for it. It may be a confession of a Judge based on the writings of the wall but one should not feel guilty in confessing the truth and observing and writing the confession in his judgment. Economic offenders inspite of the stringent punishment minimum sentences are dealt with generally with a soft corner who are expected to see the implementation of the law. Person who puts on the shoe knows where the shoe pinches. Generally, the persons who are adorning important positions in the society, in the executive, in the judiciary are the persons who are born with silver spoon in the mouth and have not seen the poverty and the starvation. Person may face personal starvation poverty and may learn the real life of such persons. One may be incident to take birth in higher society but he may learn by seeing the starvation of the others and his conscience may prick and may compel him to do something for those who are starving and who are needy. Where is the equity of law. The poor people do not get the real justice in the Court. People feel that the justice is always at the doors, in one form or the orther, who are having money power, pressure power with them. Most of the people feel that money power and pressure power cook the justice. While sitting in Division Bench we decided that the cases of those persons should be taken and heard who are behind the bar for number of years and no priority should be given to those who have recently filed the appeal. I am aware of this fact that our judgment has been set aside by the Full Bench and the Full Bench held that it is the privilege of the Judge to pass an order of early hearing at the cost of those who are behind the bars. The said judgment is binding on me. Equally, I have the right to express my feelings as still I feel that it is against the poor and for the rich people It may lead, the people to think the there is a cooking of justice in a pressure cooker, may be of the money pressure cooker or the pressure cooker of the power. Keeping these facts in mind first of all I will decide the question of probation which Mr. Jain has argued with all his vehmence at his command.
12. Mr. Jain has cited before me the case of Paramjit Singh v. Delhi Municipality in which their Lordships of the Supreme Court granted the probation to the accused-petitioner in that case. The case related to the year 1968. It was a case prior to the amendment of the law particularly relating to the minimum sentence and the probation, as such, it is not applicable in the instant case.
13. Mr. Jain has also cited before me the case of Delhi Municipality v. Man Mohan Lal . This case also does not help Mr. Jain as the amended provisions were not there at the relevant time and the probation cannot be extended. Mr. Jain has also cited before me the case Smt. Chameli v. State of U.P. 1983 FAC (1) All. 153. In para 10 of the judgment Hon’ble Mr. Justice Sharma without giving reasons about the applicability or non-applicability of Section 20AA extended the benefit of probation to the revisionist.
14. Section 20AA reads as under:
20AA Nothing contained in the Probation of Offender Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to person convicted of an offence under this Act unless that person is under eighteen years of age.
15. Hon’ble Supreme Court in number of cases held that the operation of provisions of the Probation of Offenders Act was not excluded under the Prevention of Food Adulteration Act. A note of warning was however sounded that as the adulteration of food is a menace to the public health and the Prevention of Food Adulteration Act is beneficial legislation though penal in character. Court should not lightly resort to the provisions of the Probation of Offienders Act. The kindly application of the probation principle was negatived by the imperative of social defence. No chance can be taken by the society with a man whose anti social operations disguished 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. In view of the observation of the Superme Court Section 20AA has been inserted in the Act vide Amendment Act No. 34 of 1976. Thus, it excludes the provisions of the Probation of Offenders Act, 1958 or Section 360 of the Cr.PC. There is only one exception in the matter of exclusion i.e. can be extended to a person below age. I do not agree with the view taken by the Allahabad High Court earlier. Allahabed High Court has not considered the provisions of Section 20AA. Thus, I am of the view that in no case the probation can be extended to a person who is of the age of 18 years or above. Thus, Section 20AA excludes the provisions of Probation of Offenders Act as well as the provisions of Section 360 Cr. PC and the Court has no jurisdiction to extend the probation.
16. The second question is about that the applicability of Section 13(2) of the Food Adulteration Act, which reads as under:
(2) On receipt of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons as the case may be informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period often days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
17. Thus, it is the duty of the Inspector to send the copy of the Public Analyst and the persons, after receiving the copy may apply to the court for further action.
18. Mr. Jain submits that the Public Analyst’s report was received on 29th January 1977 and prosecution was launched on 27th July, 1977. How ever the copy of the report of the Public Analyst was not forwarded to him as such he could not make an application to the court or could not send his sample for examination. Mr. Jain submits that clause (2) of Section 13 is mandatory in nature. In the case of Municipal Corporation of Delhi (supra), Supreme Court had the opportunity of considering the provisions of Section 13(2) (unamended). Their Lordships were of the view that the provisions are directory in nature. It was a case of a mason. After the amendment also the provisions were considered by their Lordships in the case of Laldas Sahu v State of U.P. (F.B.) 1987 Cr. L.J. 487. Their Lordships held that the provisions are directory in nature. Apart from that the plea about the non-supply of the copy was not taken by the accused in the trial court, in the first appellate court and even in the memo of appeal. If such pleas are not taken at the initial stage they cannot be allowed to be used before this court in a revision. This Court in the case of Fateh Lal v. State of Rajasthan 1977 RLW 89, has held that new point involving question of fact cannot be allowed to be raised even in criminal revision petition. This Court has held as under:
The question whether the accused was a regular dealer in fertilizers or merely a casual seller is a question of fact. It appears that the accused felt satisfied knowing his position fully well that this point was not challengeable before the trial court. It was not contested before the appellate court that the appellant in a revision petition filed before this court this point has not been raised. In such circumstances this point cannot be allowed to be raised at this stage.
19. I agree with the view taken by my brother Hon’ble then Justice Shrimal and I am also of the view that the new point involving questions of fact cannot be allowed to be raised in the revision petition. In the instant case, it is more difficult for me to accept the submissions of Mr. Jain as this point was raised by him in the trial court, first appellate court and in the memo of revision petition. I do not find any force in the submissions made by Mr. Jain and I do not hold that the conviction is vitiated on account of non-compliance of clause (2) of Section 13, if any.
20. Mr. Jain has also made a submission that the sentence awarded may be reduced to already undergone.
21. After dictation of this part Mr. Jain wanted to raise one additional point and he was permitted to do so. He has submitted that in this case the complaint has been filed by the Inspector through the Asstt. Public Prosecutor. The complaint bears the signature of Gopilal Saini, Food Inspector. He submitted the complaint in the Court, to the APP and the APP submitted the same before that Court on the same day. Mr. Jain has cited before me the case of Arvindhhai Motibhai Patel v. Hargovind Parshottam Patel and Anr. in which their Lordships held as under:
If a person who is merely authorised by a local authority or the Central Government or the Slate Government to institute prosecution for offence under the Act, consents to filing of such prosecutions by some persons like Food Inspectors, the prosecutions filed by such persons would be bad in law, merely, a conferment of the power to institute such prosecutions on such person by his principal i.e. either of the Central Govt., the State Government or the Local authority does not necessarily carry the power to consent to filing of such prosecutions. The power to institute prosecution and the power to consent to filing prosecution are disintict powers. Authorised to consent to filing prosecution must be express and can by general authorisation which may be given by general order.
22. Mr. Jain has also cited before me the case reported in 1977 FAC 448. This case does not apply to the present case. In that casa the powers were conferred on the Food Inspector by the State Government. Here the position is altogether different.
23. As far as the case of Gujarat High Court is concerned this is altogether a different case. In the case of the Gujarat High Court the complaint was filed by the Food Inspector, the authorised person under the law was the Chief Officer. The Chief Officer, authorised the Food Inspector to file the complaint. Their Lordships held that the power cannot be delegated by giving a consent.
24. Mr. Jain, has further cited before me the case of this Court, Bharosi v. State of Rajasthan 1986 WLN 548. My brother Justice Farooq Hasan has held as under:
It is correct to say that ordinarily this Court while sitting in revision cannot reappraise the evidence and cannot interfere with the finding of facts of the courts below unless the orders passed by the subordinate Courts are erroneous or there is a glaring mistake in the procedure or there is a manifest error, and consequently there has been a flagrant miscarriage of justice. In the instant case, the learned Counsel for the petitioner failed to point out any error or a flagrant mistake It was expected by the learned Counsel for the petitioner that the evidence produced by the prosecution should be appreciated by this court because a different conclusion can bi drawn after appreciation of the evidence. As stated earlier, while sitting in revision this Court should not and cannot appreciate the evidence which has been appreciated by the Courts below, and a concurrent finding is given by those courts. I do not find any glaring defect in the procedure or any mistake apparent on the face of record.
25. It will not be out of place here to mention that the case decided by Justice Farooq Hasan relates to the year 1973 and it is not the case of amended Act of 1976, one must draw a distinction between a penal law and a beneficial rule of law. If the penal law also falls within the purview of beneficial rule of law the balance must be struck between the two. The court should try to find out that the innocent persons do not get involved in the matter of punishment. At the same time it is the duty of the Court to see that the technicality should not prevail Law should be applied liberally as a beneficial law and the guilty person should be convicted and should not be acquitted on technical grounds. The approach of the Court in such cases should be that the real justice should be done and not the paper justice. In the instant case the complaint has been signed by the Inspector. It has been presented through the Assistant Public Prosecutor and the name of the complainant has been shown as Inspector. There is no violation of Section 20 of the Prevention of Food Adulteration Act. Section 20 does not provide at all that the complaint should be presented in person. It only provides that the prosecution should be launched by a person authorised in this behalf, namely, the Food Inspector. Submission of a complaint through APP does not make the APP a complainant. Food Inspector has written in the complaint that he is submitting the complaint as a Food Inspector. He approaches the Prosecuting Agencies and get it done through the Assistant Public Prosecutor. This approach of technicalities has led to the increase of the crimes towards the nation, towards the society and towards the health of every citizen, one cannot blame any one as the approach to a just extent has remained the approach inherited by us through the white collar persons. The Depressed, the sufferer wants that his case should be protected and the Court should not embark on the technicalties of law and should not act against the spirit of the law. The law is meant for its implementation in its true spirit. The words cannot be put into the mouth to serve the cause of while collar offenders There is nothing in Section 20. That it cannot be submitted through the Prosecuting Agencies. The provision is simple that only the Food Inspector can prosecute. There is no necessity of going to the Court of the Food Inspector and submit the complaint in person. This will lead to the position where we will interfere with the necessary duties of the Food Inspector by putting an impediment and asking him to go to court even for a petty work. This was not the intention of the legislature.
26. I do not find any force in the submissions of Mr. Jain.
27. I have gone throgh the evidence and the evidence is sufficient to connect the accused with the commission of crime and both the courts below have rightly convicted the accused.
28. Mr. Jain lastly submits that the accused has remained in jail for a period of about 10 days. Section 16 provides the minimum sentence of six months. Mr. Jain cited before me the case of Bharoshi v. State (supra) The provisions of Section 16 regarding minimum sentence were not brought to the notice of my brother Judge. Hon’ble Mr. Justice Farooq Hasan though, it has not been discussed at all and, as such, the case does not apply in the facts and circumstances of this case.
29. In the case of reported in 1986 FAC 468, my brother Justice Lodha has reduced the sentence already undergone without considering the provisions of minimum sentence Section 16 on the ground that the accused could not get justice in the year 1977. It may be a case of the year prior to 1976 and for this reason my brother Justice lodha might have not discussed the provisions of minimum sentence provided under Section 16.
30. I have already discussed that the penal law and the beneficial law when joined together need a different kind of interpretation than the ordinary rule of penal law interpretation. It is true that the innocent person should not be convicted. Beneficial law further provides the technicality should not come in the way of convicting the white collar offenders Thus the law should be interpreted in such a way that the doctrine of benefit of doubt is not stretched to the extent where the security of the nation is at risk health of the nation is at risk and, at the same time, technicality of law should be avoided and it be imperative for the courts to give a go-bye to the technicalities and to convict the accused who is guilty of such economic offences.
31. In the result, I reject the revision petition, maintain the sentence awarded to the accused-petitioner. Warrant may be issued for the arrest of the accused for undergoing the remaining part of the sentence.
32. Necessary steps be taken for the implementation of the order of this court.