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PETITIONER: GANESHMAL JASHRAJ

       Vs.

RESPONDENT: GOVT. OF GUJARAT AND ANR.

DATE OF JUDGMENT30/10/1979

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. TULZAPURKAR, V.D.

CITATION:  1980 AIR  264            1980 SCR  (1)1114  1980 SCC  (1) 363  CITATOR INFO :  R          1989 SC1011  (14)

ACT:      Sentence-Minimum  sentence  prescribed  by  Statute  by under the  Prevention of Food Adulteration Act, 1954-Accused not pleading guilty under section 229  of the Crl.P.C.,  but does so  in writing as a result of plea bargaining after his examination  under   Section  313   Crl.P.C.-Magistrate  not convicting on  the plea  of guilt alone, but sentencing less than the statutory minimum-Whether the sentence is vitiated- Criminal Procedure  Code Ss.  229, 235  r/w S.  16 of  POFA, 1954.

HEADNOTE:      The appellant  was charged for an offence under section 16(a) (1)  of the Preventive of Food Adulteration Act, 1954, for selling adulterated turmeric powder to Respondent No. 2, the Food  Inspector in  the employ of the State. Even though the appellant  pleaded not  guilty to  the  offence  charged against him  and chose  to be  tried, after  his examination under section  313 of  the Criminal  Procedure  Code,  as  a result of  "Plea Bargaining"  he  submitted  an  application admitting his guilt and praying for leniency towards him due to the  fact that  he was a poor man and his offence a first one. The  Magistrate, thereupon made an order convicting the appellant of  the offence under section 16(a)(1) POFA, 1954, and sentencing  him to  suffer simple  imprisonment till the rising of  the Court  and to  pay a  fine of Rs. 300/- or in default to  suffer further  rigorous  imprisonment  for  one month.      The High  Court, coming  to know  through an  anonymous application that  the appellant was let off lightly with one day’s  simple   imprisonment  in  breach  of  the  mandatory requirement  of  the  Act,  in  suo  motu  exercise  of  its revisional jurisdiction  issued show  cause  notice  to  the appellant for  enhancing the  sentence and after hearing the appellant affirmed the conviction, but enhanced the sentence to three  months’ simple imprisonment and also increased the fine to Rs. 500/-.      Allowing the appeal by special leave, the Court ^      HELD :  When there is an admission of guilt made by the

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accused as  a result  of "plea bargaining" or otherwise, the evaluation of  the evidence by the Court is likely to become a little  superficial and  perfunctory and  the Court may be disposed to refer to the evidence not critically with a view to assessing  its credibility,  but mechanically as a matter of formality  in support  of the  admission  of  guilt.  The entire approach  of the  Court  to  the  assessment  of  the evidence would  be likely  to be  different when there is an admission of guilt by the accused. [1117 B-D]      In the  instant case,  it  is  true  that  the  learned magistrate did  not base  his order  of conviction solely on the admission  of guilt  made by  the appellant,  but it  is clear  from   his  judgment  that  his  conclusion  was  not unaffected by the 1115 admission of  guilt on  the part of the appellant and in the circumstances,  it   would  not  be  right  to  sustain  the conviction of the appellant. [1117 B-C]      [The Court,  therefore, remanded  the case to the Trial      Court for  further steps  from the stage of examination      under S.  313 of the Crl.P.C. The Court also deprecated      the manner in which the cases under POFA are booked and      investigated  (for   statistical   purposes)   by   the      authorities and  indicated certain  guide lines so that      the true  purpose of the prevention of Food Adultration      Law be  fulfilled and the great gap between expectation      and fulfillment in respect of welfare laws be bridged.]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 632 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 29/  30-1-1979 of  the Gujarat  High Court in Criminal Revision Application No. 499/78.      K. N. Bhatt for the Appellant.      M. N. Shroff for the Respondent.      The Order of the Court was delivered by      BHAGWATI,.J. This  appeal by  special leave is directed against a  judgment of  the Gujarat High Court enhancing the sentence imposed on the appellant by the Judicial Magistrate First Class,  Jhagadia, for  an offence  under section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954.      The appellant  was charged  before the learned Judicial Magistrate for an offence under section 16(1) (a) (i) of the Act for  selling adulterated  turmeric powder  to respondent No. 2 who was, at the material time, a Food Inspector in the employ of the State. The appellant pleaded not guilty to the offence charged  against him  and a trial was thereupon held by the  learned Judicial Magistrate. The Prosecution led the evidence of  respondent No. 2 and one Thakurbhai who was one of the panch witnesses in whose presence the turmeric powder was purchased by respondent No. 2 and the certificate of the Public  Analyst   showing  that   the  turmeric  powder  was adulterated was  also tendered  in evidence. The Prosecution closed its case and thereafter the appellant was examined by the learned  Judicial Magistrate  under section  313 of  the Code of Criminal Procedure. On the same day, presumably as a result of  plea-bargaining to  which  the  learned  Judicial Magistrate was also perhaps a party, the appellant submitted an application admitting his guilt and praying that since he was a  poor man  and this  was his  first offence,  leniency should be  shown to  him. The  learned  Judicial  Magistrate thereupon proceeded to make an order

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1116 convicting the  appellant of  the offence u/s 16(1)(a)(i) of the Act  and sentencing  him to  suffer simple  imprisonment till the  rising of the Court and to pay a fine of Rs. 300/- or in  default to  suffer further  rigorous imprisonment for one month.      It appears  that through  an anonymous  application the High Court  came to  know  that  though  the  appellant  was convicted of  an offence  u/s 16(1)  (a) (i)  of the Act and there was  a minimum  sentence prescribed  for such offence, the learned  Judicial Magistrate  had let  off the appellant lightly with only one day’s simple imprisonment in breach of the  mandatory  requirement  of  the  Act.  The  High  Court thereupon  in   suo  motu   exercise   of   its   revisional jurisdiction issued  a notice to the appellant to show cause why the  sentence imposed  on him should not be enhanced and the proceeding  thus initiated  was treated  as  a  criminal revision application.  The learned  single Judge before whom the criminal  revision application  came up for hearing took the view that though the appellant had admitted his guilt by filing an  application after  the closing of the prosecution evidence, the  learned Judicial  Magistrate had  not founded his order convicting the appellant on the admission of guilt but he  had considered  the evidence  led by the Prosecution and come  to the  conclusion on  the basis  of such evidence that the appellant was guilty of the offence charged against him and  the conviction was, therefore, not vitiated, but so far as the sentence was concerned, it was patently in breach of the  requirement of  section 16(1)(a)(i) of the Act which provided for  a minimum  sentence of  imprisonment for three months and the learned single Judge, therefore, enhanced the sentence to  three  months’  simple  imprisonment  and  also increased the amount of the fine from Rs. 300/- to Rs. 500/- . This decision of the High Court is assailed in the present appeal preferred  by the  appellant after  obtaining special leave from this Court.      The principal  contention advanced  on  behalf  of  the appellant was  that though  the learned  Judicial Magistrate considered the evidence led on behalf of the prosecution and did not  act solely  on the  admission of  guilt made by the appellant, his  approach to the evidence was coloured by the admission of  guilt and since the admission of guilt was not made by the appellant at the stage of making his plea before the commencement of the prosecution evidence, but only after the prosecution  evidence was closed and he had already been examined  under   section  313   of  the  Code  of  Criminal Procedure, the conviction was vitiated. Now, it is true that when the  appellant was  called upon to make his plea before the commencement of the prosecution evidence, he pleaded not guilty in  respect of the offence charged against him and it was only after the prosecution evidence was closed and his 1117 examination under  section  313  of  the  Code  of  Criminal Procedure was completed that he admitted guilt presumably as a result of plea bargaining. The learned Judicial Magistrate was in  the circumstances  not entitled to take into account the admission of guilt made by the appellant in reaching his decision in  regard to  the conviction of the appellant. The learned Judicial  Magistrate, it  is true,  did not base his order of conviction solely on the admission of guilt made by the appellant,  but it  is clear  from his judgment that his conclusion was  not unaffected  by the admission of guilt on the part  of the  appellant. There can be no doubt that when there is  an admission  of guilt  made by  the accused  as a result of  plea bargaining  or otherwise,  the evaluation of

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the evidence  by the  Court is  likely to  become  a  little superficial and perfunctory and the Court may be disposed to refer  to  the  evidence  not  critically  with  a  view  to assessing its  credibility but  mechanically as  a matter of formality in  support of  the admission of guilt. The entire approach of  the Court  to the  assessment of  the  evidence would be  likely to  be different when there is an admission of guilt  by the  accused.  Here  it  is  obvious  that  the approach of  the learned Judicial Magistrate was affected by the admission  of guilt  made by  the appellant  and in  the circumstances,  it   would  not  be  right  to  sustain  the conviction of the appellant.      We accordingly allow the appeal, set aside the order of the  High  Court  enhancing  the  sentence  imposed  on  the appellant  as   also  the  Order  of  the  learned  Judicial Magistrate convicting  the appellant  and remand the case to the learned  Judicial Magistrate  so  that  he  may  proceed further from  the stage  of examination under section 313 of the Code  of Criminal  Procedure and  dispose of the case on the basis  of the  evidence led on behalf of the prosecution and if  the  appellant  chooses  to  lead  any  evidence  in defence,  then   after  taking  into  account  such  further evidence also  and without  in any  manner being affected or influenced by the admission of guilt made by the appellant.      Before we  part with  this case,  we  must  regretfully observe and  this was  not disputed  by the  learned counsel appearing on  behalf of the State, that most of the cases of food  adulteration  which  come  to  the  Courts  are  cases directed against  small tradesmen  such  as  grocers,  milk- vendors  etc.  It  is  common  knowledge  that  these  small tradesmen purchase  the food  stuff sold  by them  from  the wholesalers   and   sometimes   even   directly   from   the manufacturers and  more often  than not  the adulteration is made either  by the  wholesalers or  by  the  manufacturers. Ordinarily it  is not the small retailers who adulterate the articles of  food sold  by them.  Yet it  is only  the small retailers who  are caught  by the  food inspectors  and  the investigative machinery of the food 1118 department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesmen  who eke  out a  precarious existence living almost from  hand to mouth are sent to jail for selling food stuff which  is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and  fatten themselves  on the misery of others escape the arm  of the  law. The  Food Inspection Department prides itself on  its statistics by catching small tradesmen and by its gross  indifference and inaction, allows wholesalers and manufacturers  to   carry  on  their  nefarious  activities, untouched and  unaffected by  the penal  law. The  result is that a  wrong impression is being created on the public mind that the  law is  being properly  enforced, whereas  in fact what is  really happening  is that  it  is  only  the  small tradesmen who are quite often not themselves responsible for adulteration who  are caught and sent to jail while there is no  effective  enforcement  of  the  law  against  the  real adulterators. This  is a  failing which  we  notice  in  the implementation of  many of  our laws. It is only the smaller flies which  get caught  in the  web of these laws while the bigger ones  escape. This  syndrome of  soft justice  to big economic  criminals   and  harsh   justice  to  the  humbler offenders  is   a  systemic   weakness  which   affects  the credibility of  the rule of law itself. It is no wonder that an anonymous  poet sardonically  said while  projecting  the

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social dimension of this systemic deficiency:      The law locks up both man and woman      Who steals the goose from off the common,      But lets the greater felon loose,      Who steals the common from the goose. We fail  to see  why at  the time of taking samples from the small retailer,  the food inspectors do not care to find out from which  wholesaler or  manufacturer he had purchased the particular food  stuff and  after ascertaining  the name  of such wholesaler  or manufacturer, proceed immediately to the place of  business of  such wholesaler  or manufacturer  and take samples for the purpose of finding out whether the food stuff which  is being sold by him is adulterated or not. The anxiety of  the food  inspectors seems  to be  only to catch hold of  the small  tradesmen and not to proceed against the bigger wholesalers  or manufacturers who are quite often the real culprits. Otherwise, we do not understand why there are so few  cases against  wholesalers and manufacturers brought to the  Courts. The implementation of the law does create an impression that  it is  a law  meant to  be  operative  only against the smaller men and that the rich and the well-to-do are be- 1119 yond its  reach. Moreover  the  law  operates  very  harshly against the  small tradesmen  because a  minimum sentence is provided and  the small  tradesmen are  liable to be sent to jail for  three or  six months  for selling food stuff which they may  not have themselves adulterated but which has been adulterated by  others, particularly when they have no means of verifying  at the time of purchase whether the food stuff is adulterated  or not.  It is no doubt true that there is a provision in  the Act that if a warranty in writing is taken by the  dealer from the wholesaler or manufacturer from whom he has  purchased the  food stuff,  he would  be exempt from criminal liability, but it is obvious that in a poor country like ours  where there  are  small  tradesmen  eking  out  a miserable existence  from small daily sales and many of them are ignorant  about  the  provisions  of  the  law  and  are moreover at  the mercy of the wholesalers and manufacturers, such a  provision does not afford any real protection to the small tradesmen  and there  may be cases where they may have to  go   to  jail  for  the  sins  of  the  wholesalers  and manufacturers entailing  untold hardship on their family. We would, therefore,  strongly urge  upon the  Food  Inspection Department not to remain content with paying homage to anti- adulteration law  by catching small tradesmen but direct the full fury  of  their  investigative  machinery  against  the wholesalers and manufacturers who are in a large majority of cases really  responsible for adulteration of the food stuff which is  being sold by the small retailers. Then only would the true  purpose of the Prevention of Food Adulteration law be fulfilled  and the  great  gap  between  expectation  and fulfillment in respect of welfare laws be bridged. V.D.K.                                       Appeal allowed. 1120