While fully, firmly and finally espousing the legal right of the accused, the Karnataka High Court in an extremely learned, laudable, landmark and latest judgment titled M Ajithkumar vs The State By Food Inspector, Koppa in Criminal Revision Petition No. 1527/2016 and cited in 2022 LiveLaw (Kar) 234 that was pronounced finally on June 24, 2022 has set aside the conviction that was handed down under the Prevention of Food Adulteration Act by the Trial Court for a charge which it did not frame against the accused and remanded the matter back to be considered afresh. A Single Judge Bench of Justice HP Sandesh while allowing the petition filed by one M Ajithkumar said that:
There is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence. We thus see that the Karnataka High Court very rightly sets aside the conviction and sentence order passed by the court below.
To start with, this refreshing, remarkable, robust and rational judgment authored by a Single Judge Bench of Hon’ble Mr Justice HP Sandesh sets the ball rolling by first and foremost putting forth in para 1 that:
This criminal revision petition is filed under Section 397 of the Code of Criminal Procedure, 1973 praying this Court to set aside the judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and also set aside the judgment dated 09.11.2016 passed in Crl.A.No.233/2013 by the Principal District and Sessions Judge, Chikkamagaluru and acquit the revision petitioner for the offences alleged against him and grant such other relief as deems fit in the circumstances of the case.
While elaborating on prosecution case, the Bench then states in para 2 that, The factual matrix of the case of the prosecution is that the Food Inspector, Koppa has visited the shop belonging to the accused No.1-M. Umar on 16.02.2008 situate at Koppa and inspected the food articles and examined 20 packs each containing 200 miligrams of sungift refined cooking oil and found that there is adulteration in the said oil and noticed that the said oil was supplied by the revision petitioner and filed the complaint against the accused persons stating that they have violated Section 7(2) of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and thereby committed the offence punishable under Section 16(a)(i) of the said Act.
Needless to say, the Bench then specifies in para 3 that:
Based on the complaint, cognizance was taken against this revision petitioner and accused No.1 and both of them not pleaded guilty. Hence, the prosecution, in order to prove their case, examined P.Ws.1 to 4 and relied upon the documents Exs.P1 to P13(a) and two memo of objects were marked as M.Os.1 and 2 containing sungift refined cooking oil.
To put things in perspective, the Bench then envisages in para 4 that:
The Trial Court, after considering both oral and documentary evidence placed on record, convicted both the accused and imposed sentence of fine of Rs.4,000/- each, failing which they are liable to serve the sentence of simple imprisonment for seven months. The accused No.1 paid the fine amount and the prosecution also challenged the inadequate sentence and filed appeal in Criminal Appeal No.233/2013 and the First Appellate Court reversed the judgment of the Trial Court and imposed sentence of six months vide judgment dated 09.11.2016. Hence, the revision petitioner-accused No.2 has filed this revision petition.
As we see, the Bench then stipulates in para 22 that:
Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:
- Whether the revision petitioner has made out a ground to exercise the revisional jurisdiction to set aside the orders passed by the Trial Court as well as the First Appellate Court?
- What order?
Point No. (i)
It is worth mentioning that the Bench then observes in para 23 that:
Having heard the respective counsel and also on perusal of the material available before the Court, the Trial Court imposed fine of Rs.4,000/- each and accordingly, accused No.1 deposited the fine amount and whether the accused No.2, the revision petitioner herein has deposited the amount or not is not forthcoming. Admittedly, this petitioner has also not challenged the same in any appeal before the Appellate Court i.e., the sentence of fine imposed by the Trial Court. However, the State has filed an appeal before the First Appellate Court on the ground of inadequate sentence. Hence, the Appellate Court modified the sentence of simple imprisonment for a period of six months, instead of fine of Rs.4,000/-.
No doubt, the Bench then rightly points out in para 24 that:
The first and the foremost contention of the learned counsel for the revision petitioner before this Court is that there was no adulteration and it was only a misbranding. The counsel also relied upon the document Ex.P10 i.e., the report received from the Divisional Public Analyst cum Regional Assistant Chemical Examiner, Mysuru Division, N.P.C. Hospital Compound, Nazarbad, Mysuru, wherein it is opined that the sample sent for analyst is not adulterated but, it is misbranded wide label-3(e) and the said report is given on 6th day of March, 2008.
On perusal of the records of the Trial Court, it is seen that the charge was framed on 18th August, 2011 subsequent to receipt of the report. On perusal of the charges, it is seen that the trial Judge has framed the charge for the offence under Section 7 of the Act, particularly, Section 7(1) in respect of adulteration of food and Section 7(2) is in respect of misbranding food. The charge has been framed for the offence under Section 7(1) i.e., adulteration of food and that is not the case of the prosecution and the case of the prosecution is misbranding.
Be it noted, the Bench then most commendably enunciates in para 25 that:
On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. But, the trial Judge has framed the charge for the offence under Section 7(1) of the Act and not for the offence under Section 7(2) of the Act
It is also important to note that the complaint dated 8th day of July, 2008 is subsequent to the receipt of the report from the analyst which is marked as Ex.P10 which is dated 6th day of March, 2008. Hence, it is clear that the report is received on 6th day of March, 2008 and complaint is filed in the month of July i.e., 8th day of July, 2008 and inspite of it, though allegation is in respect of Section 7(2) of the Act, the Trial Court framed the charge for the offence under Section 7(1) of the Act. Hence, very framing of the charge itself is erroneous.
Most forthrightly, the Bench then mandates in para 26 that:
It has to be noted that the trial Judge, even while passing the judgment invoked Section 7(2) of the Act punishable under Section 16(a)(i) of the Act and not altered the Section from 7(1) to 7(2) of the Act. It is also rightly pointed by the learned counsel for the revision petitioner that no notice was given to invoke Section 7(2) of the Act and though the same is noticed by the Trial Court, the charge has been framed for violation of Section 7(1) of the Act and punishment was provided for the violation of Section 7(2) of the Act. Hence, there is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act.
The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence. Hence, the very judgment of the Trial Court as well as the First Appellate Court requires to be set aside on the ground that the charge has been framed for violation of Section 7(1) of the Act and conviction and sentence has been passed for violation of Section 7(2) of the Act.
Most significantly, the Bench then holds in para 27 that:
The other contentions of the learned counsel for the revision petitioner are that, no authorization to file any complaint and the delegatee also cannot delegate the powers. He also would contend that no notification was produced regarding appointment of Food Inspector and the independent witnesses have not been examined. It is also his contention that non-furnishing of report of Public Analyst and misbranding of label does not require any opinion from the Public Analyst.
When charge has not been properly framed and conviction and sentence is passed for in respect of violation under Section 7(2) of the Act, it is appropriate to set aside the judgments of both the Trial Court as well as the First Appellate Court by keeping open the other contentions of the learned counsel for the revision petitioner and remand the matter to the Trial Court for framing appropriate charges and consider the matter afresh.
If need arises, the Trial Court shall also permit the prosecution as well as the revision petitioner to adduce evidence before the Trial Court since, proper charge has to be framed and an opportunity has to be given to the revision petitioner to meet the case of the prosecution and unless the charge is specific, meeting the case of the prosecution by the defence is also very difficult. Hence, the judgment and sentence passed by the Trial Court as well as the First Appellate Court is not legally sustainable in the eye of law and it requires fresh consideration. Accordingly, I answer point No.(i) as ‘affirmative’.
Point No.(ii)
Finally and far most significantly, the Bench then concludes by holding in para 28 that:
In view of the discussions made above, I pass the following:
ORDER
- The criminal revision petition is allowed.
- The judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and the judgment passed by the Principal District and Sessions Judge, Chikkamagaluru dated 09.11.2016 in Crl.A.No.233/2013 are set aside. The matter is remanded to the Trial Court to consider the matter afresh in accordance with law within a period of six months, since the matter is of the year 2008.
- The revision petitioner and the prosecution are directed to appear before the Trial Court on 25th July, 2022 without expecting any notice.
- The respective parties are directed to assist the Trial Court in disposal of the case within the stipulated time.
- The Registry is directed to transmit the records forthwith to the concerned Court.
In a nutshell, the Karnataka High Court has thus not left even a straw of doubt to make it indubitably clear that the accused can’t be convicted for a charge which is not framed by the Trial Court. It merits no reiteration that all the Courts must definitely pay heed to what the Karnataka High Court has held in this leading case. Of course, we thus see that the matter has been very rightly remanded to the Trial Court to consider the matter afresh in accordance with the law within a period of six months, since the matter is of the year 2008 as mentioned above. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
