EKNATH SHANKARRAO MUKKAWAR versus STATE OF MAHARASHTRA

5!3 EKNATH SHANKARRAO MUKKAWAR v. STATE OF MAHARASHTRA April 12, 1977 {Y. V. CHANDRACHUD, P. K. GOSWAM! AND P. N. SHI:-IGHAL, JJ.] Re1·lsional jurisdiction-Suo motu po!v~rs of tire 1/ig!J Court to wlrancc sentence-Power not takm away by proi'ISI0/1 for appeal against illlldtquacy of se111ence by the Stale Govemml'llt or the Central Govermncnt-Crlrni~~al Pro-cl'durc Coac. C1ct ll of 1974), 1973, section 397 read with s. 401 (Section 435/-439, CmmtUJI Proctdure Code, 1898). Crfminal Procedure fode (Act 11 of 1974), 1973, Section 317(1), (21-Meanmg of the words by any other a~~ncy empowered to make investi~atiolt into any oOem:_e under any Central Act"-lm•estigation under Pr.,·emion cf Pood Adulterntton Act by Food lttrpcctors-Sution 377(1) and not.._ 377(2) o!rh1 Cr. P. C. applies-Appeal at the instance of State Go>•ernrnent is main-laiTUJble. Prc•·emion of Food Adulteration Act, 1954, Section 16(1), Pro•·i.<o [-Power to impose S<"lltence less thatt minintttm-lnrerference by appellate ccmrt. ' Appeal against inadequacy of scllfcnce-Power of court to alter cotll'l'ction to an aggral'ated caregory-CrimiMI Procedure Code (Act II of 197-4), 1973, Section 377- Scope of. Practice and precedents-Binding effect of decisiOIIS of coordinate court. · The llppcllant nnd his !.1ther were t:harged u/s. 2(1) (c) of the Prc\-ention of Food Adulteration Act, 19j.f for adulteration of chilly powder. The &ample of chilli powder which was seiud by the Food ln.sP.ector on April 13, 1974 cont<aincd 37.25% of the total ash against the permis~1ble pert:entage or 8%. It Y.lS atakd in the Analyst"5 nport that the percentage of e.,tr:tneou5 matter which \\&s common salt mixed with the chilli power was 32.-4%. The judicial magis-E Irate, Udgir, found that the chilli powder wu adulterated within the meaning of 1. 2(i) of the Act and convicted the appellant under e. 16(1) Cal (i), proviso I of the Pre~ention of Food Adulterauon Act, 1954 r/w s. 2(1)(1) and s. 7(1) !J( the •~id Act and sentenced him to simple imprt~onment Ill! the risin~: of the court and to pay lin.: of Ks. SOO /· nnd in default rigor~ us lmprisooment lor two month~. T~ 11ppellant's fnther was, however. ncqu1tted. The St:ttc of Aiahara.htra preferred an appeal agrunst the order of acqUittal of the father Hod again,! the m~dequacy of the bCntence awarded to the appellant. The H1gh Olurt the appeal di.!m~ of the the appeal agairut acquittal State '"'ith regard to the inadequacy of th~ appe!laot's father but o~ the sentef!Ce. A!lifl!l-allow~.! ina the conviction of the appelluot under s. 16(1) (a) (1) r/w sectJo~ 2(1)(•). and 7(1) of the Act, the High Court enhanc~ the senl~!1c¢ to. slX, months } . ~imple imprisonment and line of Rs. 1000/-, 1n default s•mple 1mpnsooment 1.· '"' two months. ~· Allowin1: the appeal by •reciul leave, the Court, ' [I, ]G HElD : (I) The new Code uf Criminlll Procedure, 1973 ha~ .not a~l~<i r rbe High Court'a pov.·er of enhancement of senten.ce ~y exercJSm8 re~•on_a iurbdktion suo mo1u. The provi~ion for appeal IIIJ[111]nsJ madc~u)cJd ~0 se~u~h'~ concJu\ioo. by the SUite Government High Courts power or the of Central Government enhan~mef!l o! se~i:~~"u/Dell no1 ~ 83~7~~~~:P with riat" ':lee by exerciiina 3UO motu power of revrsloo [11 ]btill ctho High. cOurt eao "by ~· . ~! Criminal Procedure Code, l:J-3, tna;~~~ h':fcrior criminal court under its Jurudictlon. app~:<~[ lllielf e:..ll when appeal for the The record provision liCll, . but of proce of': applies -401 [10]tot! 1l' (-4) [0 ]~uIs 15. ~~ 0bar Court's ·such to exorcise party 8 legal who of bar power d<lell under not of ' · ~~1(4) d~ not atand m t~ wnr .o.! .. r'~ ingtho new Code.l'-''H, $46A.CJ tev~•on s11o molu, wbkh c:ontlnu~ a> "" [0 ]

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(2) Under sub-section (l) of s. 377, the State Government has right to appeal against the inadequacy of sentence in all cases other than those referred to in sub-section (2) of that section. The true test under s. 377(2) Criminal Procedure Code is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. In other words, just like s. 3 of the Delhi Special Police Establishment Act, there should be an express provision in an Act empowering the making of investigation under the Act No such express provision is found in tbe Preven-tion of Food Adulteration Act. Mere provision of an in-built mechanism of some kind of investigation in that Act is not decisive of the matter. There should be an express provision in that Act empowering the Food Inspectom to make investigation of offences under the Act. In the absence of any express pro-vision in the Act in that behalf, it cannot be held that the Food Inspectors are empowered to make investigation under the Act. Section 377(2) Criminal Procedure Code, therefore, is not attracted and the appeal under s. 377(1), Criminal Procedure Code at the instance of the State Government is main-tainable. [517 A, H, 518A, B, C, F}

(3) The Prevention of Food Adulteration Act provides that when conviction is under s. 16(1) (a) {i) for selling an adulterated article coming within the definition of section 2(i) (1 ), the Magistrate by recording adequate and special reasons has jurisdiction to award sentence less than the minimutn. [519-H-520 A-C]

(4) Courts have to give due recognition. to the intent of the Legislature in awarding proper sentence including the minimum sentence in appropriate caaes described under the Act. When the Legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circums-tances, it is permissible for the courts to give the benefit in suitable cases. {519 F-Gl

( 5) In an appeal under s. 3 77, Criminal Procedure Code, the High Court may interfere with the sentence, if no reasons for awarding lesser sentence are recorded by the Magistrate. Again if the reasons recorded by the Magis-trate are irrelevant, extraneous, without materials and grossly inadequate, the High Court will be justified in enhancing the sentence. In the instant case the reasons given by th: Magistrate were not so grossly inadequate that the High Court could interfere with the sentence in petty case. [520 A-B, C]

( 6) In an appeal against inadequacy of sentence it is not permissible to alter conviction· to an aggravated category of offence for which the accused was not convicted. While the accused in such an appeal under s. 377 can show that he is innocent of the offence, the prosecution is not entitled to show that be ls guilty of graver offence and that on that basis the sentence should be enhanced. The prosecution will only be able to urge that the sentence is inadequate on the chargl! as found or even on an altered Jess graver charge. [519 D·E]

(7) When there is decision of co-ordinate court, it is open to the Judge to differ from it, but in that case, the only judicial alternative is to refer to larger Bench and not to dispose of the appeal by taking contrary view. Judicial discipline as well as decorum should suggest that as the only course. 1520 F1

CRIMINAL APPELLATE JuRISDICTioN: Criminal Appeal No. 577 I

(Appeal by Special Leave from the Judgment and Order dated the 4th Nov. 1976 of the Bombay High Court in Criminal Appeal No. 448 of 1973).

V. M. Tarkunde, S. V. Tambwekar and Miss M. Tarkunde, for the appellant.

H. R. Khanna and M. N. Shroff, for the respondent".

EKNATH SHANKARRAO MUKKAWAR v. MAHARASHTRA (Goswami, J.) The Judgment of the Court was delivered by

GoswAMI, J.-The appellant was convicted by the Judicial Magistrate, Udgir, under section 16(1)(a)(i) proviso (i) of the Prevention of Food Adulteration Act, 1954, read with section 2(D(l) and section 7 (i) of the said Act and sentenced to simple imprison-men_t till rising of the court and to pay fine of Rs. 500/-, in default rigorous imprisonment for two months. The appellant's father who was also charged for the same offence was, however, acquitted.

The charge against the appellant was that he sold chilli powder which was adulterated inasmuch as the percentage of the total ash was more than the permissible limit. The sample of chilli powder which was seized by the Food Inspector on April 13, 1974, contained 3 7.25% of the total ash against the permissible percentage of 8%. It was stated in the Analyst's report that the percentage of extraneous matter which was common salt mixed with the chilli powder was 32.4%. The learned Magistrate found that the chilli powder was adulterated within the meaning of section 2(i) (I) although the prose-cution was on the basis of the article being adulterated within the meaning of section 2 (i )(c) of the Prevention of Food Adulteration Act, 1954 (briefly the Act). The State of Maharashtra preferred an appeal against the order of acquittal of the father of the appellant and against the inadequacy of the sentence awarded to the appellant. The High Court dismissed 1he appeal against acquittal of the appellant's father but allowed the appeal of the State with regard to the inadequacy of the sentence. The High Court while affirming the conviction of the appellant under section 16(l)(a)(i) read with sections 2(D(I) and 7(i) of the Act enhanced the sentence to six months' simple imprisonment and fmc Df Rs. 1000/-, in default simple imprisonment for two months. Hence this appeal by special leave.

Mr. Tarkunde, appearing on beh-alf of the appellant, submits that the appeal by the State of Maharashtra under section 377 (1), Criminal Procedure Code, 1973, was incompetent in view of the provisions of sub-section (2) of that section. He further submits that the High Court was not at all justified in case of this nature to interfere with the sentence when the trial court had given adequate reasons for imposing the lesser sentence.

It is also pointed out, more or less as an alternative su~mission, that the power of th.e High Court to enhance sentence ~hrch was available under sectton 435/439 Cr.P.C. of the old Code rs replaced by the provision of appeal under section 377 Cr.P.C. of the new Code. It is also stated that the High Court's power of revision, suo motu, long exercised ~nder the old Code !s n~w taken away under the new Code by providrng for apppeal agamst madequacy of sentence. The above submission is. put forward ex abundanti caufela- lest we. ~ay not interfere with the sentence imposed by the Hrgh Court hav~ng regard to the possibility of exercise of pow~rs, suo motu, ~y ~he High Court for enhancement of sentence assummg the appeal 1s mcompe-tcnt on the ground urged by the appellant.

(1977] 3 S.C.R.

. V(c -should at once remove the misgiving that the new Code of Cnmmal Procedure, 1973, has abolished th~ High Court's power of !enhancement of sent~~ce by exercising rev1sional jurisdiction, suo motu. The prov1S1on for appeal against inadeq_uacy of sentence by the State Government or the Central Government does not lead to sucl.1 conclusion. High Court's power of enhancement of sen-~enc~, m an appropriate case, by exercising suo motu power of revision JS stlll extent under section 397 read with section 401 Criminal Pro-cedure Code, 1973, inasmuch as the High Court can "by itself" calf for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of section 401 ( 4) is bar to party, who docs not appeal, whe_n appeal lies, but applies in revision. Such legal bar under section 401 ( 4) does not stand in the way of the High Court~s exercise of power of revision, suo motu, which continues as before in the new Code. ·

Before we proceed further we may set out section 3 77 (1) and: (2) Cr. P. C. with. which we arc concerned :

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377. ( 1) "Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on trial held by any Court other than High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) If such conviction is in case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inade-quacy".

Mr. Tarkundc emphasised upon the difference of language . in section 377(2) and section 378(2) Cr. P.C. In the latter section the word "also" appears making provision for both the State Govern-ment and the Central Government to appeal against acquittal.

language . in In the latter section 9:

On the other hand it is urged on behalf of the State that the word "also" may be read in section 377(2) Cr.P.C. in the context of the scheme of the two provisions in section 377 and section 378 Cr.P.C.

It is true that section 378(2) follows the pattern of section 417(2) of the old Code and the right to appeal is conf~rred upon both t~e State Government and the Central Government m express terms m section 378(2). It is clear that the legislature has maiJ?.tained. watertight dichotomy while dealing the D?atter of appeal agamst inadequacy of sentence. We agree that m the absence of similar word "also" in section 377 (2) it is not possible for the court

EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 517 (Goswami, J.)

to suppply casus omissus. The two sections, section 377 and section 378 Cr. P. C. being situated in such close proximity, it is not possible to hold that omission of the word "also" in section 37i(2) is due to oversight or per incuriam. ·

· Sec~on 37~ Cr. P. C. introduces new right of appeal which was not earl1er avmlable under the old Code. Under sub-section ( 1) of section 377 Cr. P. C. the State Government has right to appeal against inadequacy of sentence in all cases other than those referred to in sub-section (2) of that section. This is made Clear under sec-tion 377 (1) by its opening clause "save as otherwise provided in sub~ection (2)". Sub-section (2) of section 377, on the other hand, confers right of appeal on the Central Government against sentence on the ground of its inadequacy in two types of cases :

( 1) Those cases where investigation is conducted by the Delhi Special Police EstaQtishment constituted under the Delhi Special Police Establishment Act, 1946.

( 2) Those other cases which are ·investigated by any other agency empowered to make investigation under any Central Act not being the Code of Crimi-nal Procedure.

There is no difficulty about the first type of cases which are investi-gated by the Delhi Special Police Establishment where, certainly, the Central Government is the competent authority to appeal against in-adequacy of sentence.

The controversy centres round the second type of cases viz., those which arc investigated by any other agency empowered to make investigation under any Central Act not being .the Code of Criminal Procedure.

The Criminal Procedure Code inter alia, provides for investigation of all categories of criminal offences. The First Schedule of the Code classifies offences under the Indian Penal Code as well as offences against other laws. Between ·the above two classifications the entire denotation of criminal offences is exhausted. It is clear that the Delhi Special Police Establishmeqt also has to comply with the provi-sions of the Cede of Criminal Procedure in investigation of offences just as the State Police has to do.

By ~&ection 3 of the Delhi Special Police Establishment Act, the Central Government may by notification in the official gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. It is only when ~uch a. notifi~a­tion is made by the Central Government that the Delhi Spec1al Pohce Establishment is empowered to investigate the specified offences. Similarly if in any other Central Act, not being the Code of Criminal Procedure, provision is made for empowering particular agency to make investigation of offences under that Act, then also the Central Government alone will be the competent authority to prefer appeal under section 377 (2) Cr. P. C. The true tes.t! .theret:ore, under sec-tion 377 (2) Cr. P. C. i~ whether the offence 1S mvestlgated by the

Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. In other words, just like section 3 of the Delhi Special Police Establishment Act, there should be an express provision in the Prevention of Food Adulteration Act empowering the making of investigation under the Act. But no such express provision is found in the Prevention of Food Adulteration Act.

Mr .. Tarkunde took us through all the relevant provisions of the Prevention of Food Adulteration Act and in particular rule 9 of the Central ~~lcs to 'point o~t tha.t it_ is self-contained code detailing the req~s1tc manner of mvestlgatlon for the purpose of efficient prosecution of offenders under that Act. Mere provision of an in-~u_ilt mechanism of some kind of investigation in that Act is not dectstve of the matter. There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act.It is true that investigation under section 2(h) Cr. P. C. is an inclusive definition and is of wide import. It may also be true that some of the powers exercised by the Food Inspectors under section 10 of the Act are included in the imrestigatory process of the police although the Food Inspectors have no powers of arrest of the offenders unless they refuse to give name and residence or give suspicious name or residence. This procedure in the Act follows from the fact that on the date of taking sample of an article, the Food Inspector :is not in position to come to conclusion whether the article is adul-E terated within the meaning of the Act. It is only on receiPt of_ the Analyst's report certifying the article to be adulterated that the Food Inspector will be able to submit report to the Magistrate for taking cognizance of the offence and his report will have to be accompanied also by written consent of the appropriate authority under section 20 of the Act The scheme of the Act is such that the case is instituted on his report and dealt with under the Criminal Procedure Code as case of which cognizance is taken under section 190(1 )(a) of the Criminal Procedure Code. In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspec-~tors are empowered to make investi~Sation under the Act. Section 3 77 (2) Cr .P. C., therefore, is not attracted and the appeal under section 377(1) Cr.P.C. at the instance of the State Government is maintainable. The first submission of the appellant has no force.

With regard to the second and last submission on sentence Mr. Khanna on behalf of the State submits that this was case under sec-tion 16 for violation of section 2(i)(c) of the Act in which case the Magistrate had no jurisdiction to award sentence less than six months. According to counsel, the High Court was right in enhancing the sentence of the appellant.

We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act 34 of 1976, which

Prevention of Food

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EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami, 1.)

inter alia, amended section 2 ( i) (1) and added sub-clause ( m) to section 2 ( i) . ,

It is true that under section 16(1) (a) (i) if any person sells any article of food which is adulterated he shall b~ punishable with imprison~ ment for term which shall not be less than six months but which may extend to six years and fine which shall not be less than one thousand rupees. The proviso to that section, however, relieves an offence under sub-clause (i) of clause (a) when inter aUa, it is with respect to an article of food which is adulterated under sulrclause (1) of clause (i) of section 2, from the rigour of the above penal provision and the court may, for any adequate and special reason, impose sentence of imprisonment for term of less -than six months or fine of less than one thousand rupees etc. It is by invoking the above proviso that the trial court sentenced the appellant as set out above: Mr. Khanna submits that we should alter the finding of conviction to one for violation of section 2(i)(c) from section 2(D(l), since, according to him, that will be the proper conviCtion on the facts. 0}' the case. We are unable to entertain this plea for altering the con-viction in such manner for the purpose of enhancing the sentence under section 377 Cr.P.C. The State did. not appeal against the acquittal of the appellant under section 16(1) (a) (i) read with section 2(i)(c) and proceeded on the basis that the article was adul-terated within the meaning of section 2(i) (1) as held by the trial court. This is clear also from the judgment of the High Court. In an appeal against inadequacy of sentence it is not permissible to alter the conviction to an aggravated category of offence for which the accused was not convicted. While the accused in such an appeal under sec-tion 377 Cr.P.C. can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of graver offence and on that basis the sentence should be enhanced. The prosecution will only be able to urge that the sentence is inadequate on the charge ·as found or even on an altered less graver charge. The submission of Mr. Khanna is clearly untenable.

Mr. Khanna next submits that this Court should not interfere with the sentence in case under the Prevention of Food Adulteration Act :as the offence is against society at large affecting the health and well-being of the people in general. We are alive to the seriousness of offences under the Prevention of Food Adulteration Act. Courts have to give due recognition to the intent of the legislature in awarding proper sentence including the minimum sentence in appropriate cases described under the Act. such offences cannot be treated in light-hearted manner. Even so justice has to be done in accordance with 1aw. The Prevention of Food Adulteration Act, itself, permits for some leniency in an excepted category of cases as pointed out earlier. When the legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circumstances, it is permissible for the courts to give the benefit in suitable cases.

As seen earlier the Prevention of Food Adulteration Act provides that when convicti~n is under section 16(]) (a) (i) for selling r.n adul-terated article coming within the defi'nition of section 2(i)(l), the

Magistrate, by recording adequate and special reasons, has jurisdiction t? award sentence less than the minimum. In an appeal under sec-tion 377 Cr.P.C. the High Court may interfere with the sentence if no reasons for awarding lesser sentence are recorded by the Magistrate. Again, if the reasons recorded by the Magistrate are irrelevant, extra-neous, without materials and grossly inadequate, the High Court will be justified in enhancing the sentence. . ·

While dealing with the question of sentence the Magistr~te noted that the appellant was small retail shopkeeper who had only 3 kgs. of chilli powder in his shop for sale out of which 450 gms. were pur-chased by the Food Inspector. He also considered the nature of the offen<;e as disclosed in the report of the Public Analyst. There is nothing in the evidence to show that any injurious ingteaicnt to health was mixed with the article. We find that the Magistrate had the jurisdiction under the first proviso to section 16 ( 1 ) to ward less than the minimum sentence in this case by recording adequate and special reasons. We are unable to hold that the reasons given by the Magis-trate are so grossly inadequate that the High Court was right in inter-fering with the sentence m this petty case. We must hasten to add that the matter would have been absolutely different if the article sold contained ingredients injurious to health.Our attention is drawn to disquieting feature in the procedure adopted by the learned single Jud.ge (G. N. Vaidy~, J.) in disposin$ of the appeal. The learned Judge tgnored the dec1smn of another ~;mgle Judge of the same court (J. M. Gandhi, J.) who had earlier held in similar case that the appeal by the State was not competent under section 377(1) Cr.P.C. It is true that the decision is pending before this Court in appeal by special leave. That, however, cannot be suffi-cient reason for the learned Judge to ignore it and observe that it is "unneces·sary to keep back this matter till the Supreme Court decides matter". When there was decision of coordinate court, it was open to the learned Judge to differ from it but in that case the only jlldicial alternative was to refer it to larger bench and not to dispose of the appeal by taking contrary view. Judicial discipline as w~U as de-corum should suggest that as the only course.

In the result the appeal is allowed and the judgn1e?t and order of the High Court arc set aside. The appellant shall be dtscharged from his bail bond.