Sri Gopi Agarwala and Anr v. The State of Assam

JUDGMENT & ORDER (ORAL)

¶1Heard Mr. S. K. Jain, learned counsel for the petitioners. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent.

¶2The present criminal revision petition under Section 397/401 read with Section 482 of Cr.P.C., 1973 is filed assailing a Judgment and Order dated

15.10.1998 passed by the learned Chief Judicial Magistrate, Sonitpur, Tazpur in C.R. Case No. 1589/1994, whereby the accused petitioners were convicted under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Act, 1954) and petitioners were sentenced to undergo Simple Imprisonment for 6 (six) months each and to pay a fine of Rs. 1,000/- each and in default to pay fine, Simple Imprisonment for another 1 (one) month. The further challenge is Judgment and Order dated

24.12.2002 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur in Criminal Appeal No. 18(S-4)/1998, whereby the learned Appellate Court dismissed the appeal and upheld the conviction.

¶3Referring to the decision of the Hon'ble Apex Court in the case of M/s A.K.Sarkar & Co. & Anr. –Vs-The State of West Bengal & Ors reported in 2024 INSC 186 , Mr. Jain, learned counsel for the petitioners argues that the sentence prescribed under Section 7/16 of the Act, 1954, at the relevant point of time when the alleged offence was committed was minimum Simple Imprisonment for a period of six months and fine of Rs. 1000/-. However, in terms of Section 52 of Food Safety and Standards Act, 2006 (hereinafter referred to as Act, 2006), the punishment prescribed is Page No.# 3/5 now only fine upto Rs. 3 lakhs and therefore he submits that the petitioners should also get benefit of the aforesaid principle of law laid down by the Hon'ble Apex Court. The learned counsel, however, has confined his argument to the sentence only.

¶4To consider the aforesaid submission, this Court is to go through the complaint filed against the petitioners. The basic allegation in the complaint is to the effect that as per the Public Analyst Report the sample of Iodised Salt does not conform to the standard. Such materials were seized from the possession of the petitioners. Accordingly, two petitioners were prosecuted.

¶5I have heard the learned counsel for the parties. Perused the materials available on record including the provisions of Act, 1954 and the Act, 2006.

¶6Section 7 of the Act, 1954 prohibits any person to manufacture for sale or store, sell or to distribute any adulterated food and any misbranded food etc.

¶7The allegation in the complaint as well as the conviction under Section 7 of the Act, 1954 of the petitioners herein, is relatable to adulteration and misbranding.

¶8The Act, 2006 was enacted with an object to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. Page No.# 4/5

¶9In terms of Section 97 of the Act, 2006, the Acts/Orders specified in Second Schedule were repealed, which include the Act, 1954. Clause-(ii) of Sub Section 1 of Section 97 of the Act, 2006 on the other hand prescribes that such repeal shall not affect any right, privilege application or liability acquired, accrued or incurred under any of the enactment or orders under repeal.

¶10That being the position, generally the repeal of Act, 1954 shall not have any affect on the conviction made in the case in hand under the Act, 1954. However, the Hon'ble Apex Court in Trilok Chand –Vs-State of Himachal Pradesh reported in 2020 10 SCC 763 referring to the earlier judgment of the Hon'ble Apex Court in T. Barai –Vs-Henry Ah Hoe reported in (1983) 1 SCC 177, more particularly relying on paragraph 22 of the said judgment, concluded that since the amendment was beneficial to the accused person it could be applied with respect to the earlier cases as well as which are pending in the Court.

¶11In view of the aforesaid principle of law laid down by the Hon'ble Apex Court, the learned counsel for the petitioners argues that now the sentence is required to be modified as per Section 52 of the Act, 2006.

¶12Section 51 of the Act, 2006 prescribes that any person who, whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is substandard, shall be liable to a penalty which may extend to five lakh rupees. In the case in hand, the complaint and the conviction is also relatable to an allegation which says that the material/food seized from the possession of the accused petitioners were adulterated/not conformed to Page No.# 5/5 the standard. Therefore, learned counsel, in the considered opinion of this Court, is correct in arguing that such conviction is relatable to Section 51 of the Act, 2006.

¶13Therefore, in the given context of the present case, this Court is of the view that the determination made in Trilok Chand (supra) and M/s A.K.Sarkar (supra) can be made applicable to the facts of the present case.

¶14Accordingly, the present criminal revision petition stands allowed by interfering with the sentence of Simple Imprisonment for 6 (six) months each and it is directed that the sentence be confined to the fine already directed to be paid. Accordingly, the fine be realized.

¶15LCR be returned back.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010107822010 2024:GAU-AS:12584 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./498/2010 SRI GOPI AGARWALA and ANR S/O SRI NATHMAL AGARWALA 2: SRI NATHMAL AGARWALA PROPRIETOR OF M/S MIRA BHANDAR HOSPITAL ROAD DHEKIAJULI TOWN MOUZA and P.S. DHEKIAJULI DIST. SONITPUR ASSAM VERSUS THE STATE OF ASSAM Advocate for the Petitioner : MR. T C KHATRI, MR. P MAHANTA,MR.S K JAIN Advocate for the Respondent : , ,PP, ASSAM BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Mr. S. K. Jain, Advocate. For the Respondents : Mr. B. Sarma, APP. Date of Hearing : 09.12.2024 Page No.# 2/5 Date of Judgement : 09.12.2024