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Rajendra Alias Rajjan v. The State Of Rajasthan .
Factual and Procedural Background
On May 7, 1981 Hari Dutt Sharma (PW‑1), the Food Inspector at Bharatpur, observed the accused (the petitioner) carrying milk said to be for sale. Near the Dak bungalow, Bharatpur, Sharma identified himself and purchased 660 ml of milk from the accused. The sample was divided into three equal parts, 18 drops of formalin were mixed in each bottle, they were sealed and sent to the Public Analyst the same day. The Public Analyst's report dated May 9, 1981 recorded fat content 9.5%, solid non‑fats 4.0%, starch absent, sugar absent, and concluded the sample contained about 53% added water (i.e., was adulterated).
After obtaining consent under Section 20 of the Prevention of Food Adulteration Act, 1954, a complaint was filed and the accused was tried before the Chief Judicial Magistrate (CJM), Bharatpur. The prosecution examined Hari Dutt Sharma and Ramji Lal. The accused was examined under Section 313 Cr.P.C.; he denied that any sample had been taken from him and stated that he was carrying 5–7 kg of milk to his relation Shibbu for a religious programme ('Katha'). The accused produced two defence witnesses, Shibbu and Vipti.
By judgment dated June 10, 1983 the CJM convicted the accused under Section 7/16 of the Act and sentenced him to one year's rigorous imprisonment and a fine of Rs. 1,000/‑ (or, in default, one month's simple imprisonment). On appeal the Additional Sessions Judge, Bharatpur, by judgment dated April 18, 1984 dismissed the appeal. The revision petition before the court that produced the present opinion was partly allowed, resulting in a reduction of sentence (details below).
Legal Issues Presented
- Whether an offence falling under Section 16(7) of the Prevention of Food Adulteration Act, 1954 (when Section 16A applies) must be tried summarily and whether trying it as a warrant case without following the summary trial procedure renders the trial/conviction void for want of jurisdiction.
- Whether a court has power to award a sentence of imprisonment less than the minimum prescribed by statute (including whether authorities such as Section 360 Cr.P.C. or the Probation of Offenders Act, 1958 may be applied) where the statute prescribes a minimum sentence and contains provisions excluding those reliefs.
- Whether the case falls under the first proviso to Section 16(1) and, if so, whether there are "adequate and special reasons" to impose a sentence at or above (or below) specified minima under that proviso.
Arguments of the Parties
Appellant / Accused's Arguments
- The trial should have been conducted summarily under Section 16A of the Prevention of Food Adulteration Act and was not; the prescribed procedure for summary trial was not followed.
- The accused had already undergone about 85 days' imprisonment and therefore a sentence of imprisonment and a fine would meet the ends of justice; implicitly, mitigation was sought based on time already served.
- Reliance on the case of Bharosi v. State (1986(1) WLN 548) to argue that, in comparable circumstances, a court sentenced the accused to the period already undergone and adjusted the fine — suggesting power to reduce imprisonment in light of time already served.
- The case falls under the first proviso to Section 16(1), implying potential discretion on sentencing subject to "adequate and special reasons" to fix a particular sentence within the statutory range.
Prosecution's / Respondent's Position
- The prosecution relied on the evidence of the Food Inspector (who purchased the sample and arranged analysis) and the Public Analyst's report concluding the milk was adulterated with about 53% added water.
- Implicitly, the prosecution maintained the trial and conviction were proper, and that the statutory sentencing regime applies (including the limits and exclusions in the Act) — as reflected in the court's account of statutory provisions and in the absence of successful challenge to conviction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dharanidhar Sahu v. State of Orissa, 1987 (1) PFA Cases 113 | Where there was no notification under Section 16A authorising summary trial, a trial held as a warrant case was not quashed where the accused was not prejudiced; such a trial was not treated as without jurisdiction. | The court relied on this authority to support the proposition that trying an offence as a warrant case (instead of summarily) does not automatically vitiate the trial if the accused is not prejudiced and no failure of justice is shown. |
| Bharosi v. State, 1986 (1) WLN 548 | The decision (as described in the opinion) involved sentencing the accused to the period already undergone and increasing the fine; it was relied on to argue courts can mitigate imprisonment in light of time already served. | The court examined this authority and concluded it did not establish that courts have jurisdiction to inflict imprisonment less than the minimum prescribed by statute after the April 1, 1976 amendment to Section 16. The opinion states that if Bharosi is read to permit sentencing below statutory minimum, that would not be a correct statement of law. |
Court's Reasoning and Analysis
The court addressed the arguments in two principal clusters: (A) the procedural claim about summary trial under Section 16A of the Act, and (B) the sentencing and mitigation arguments.
(A) Summary trial procedure and jurisdiction
Section 16A of the Act directs that offences under sub‑section (1) of Section 16 shall be tried summarily by a Judicial Magistrate of the first class specially empowered by the State Government or by a Metropolitan Magistrate, and that Sections 262–265 Cr.P.C. shall, as far as may be, apply. The second proviso to Section 16A requires that where, at the commencement of or in the course of a summary trial, it appears to the Magistrate that a sentence exceeding one year may be required or that for any other reason it is undesirable to try summarily, the Magistrate must, after hearing the parties, record an order to that effect, recall witnesses if necessary and proceed under the ordinary Code procedure (i.e., as a warrant case).
The court recognized that the CJM (who had jurisdiction) tried the matter as a warrant case without following the specific steps in the second proviso (i.e., without recording an order after hearing the parties). It examined the effect of such an irregularity against the framework of Chapter XXXV Cr.P.C. and Section 465 Cr.P.C., which preserves findings, sentences and orders of courts of competent jurisdiction against reversal for mere error, omission or irregularity unless, in the appellate court's opinion, a failure of justice has in fact been occasioned thereby.
Applying that principle, the court held that even if summary trial procedure should have been adopted under Section 16A, trying the case as a warrant case does not render the trial void for want of jurisdiction unless the accused can show that a failure of justice resulted from the departure. In this case the accused did not raise the objection at trial or on appeal and could not demonstrate any failure of justice resulting from the procedure adopted. The court also noted that trial as a warrant case is, in general, more beneficial to the accused than a summary trial. The decision in Dharanidhar Sahu (supra) was cited as analogous authority where a trial held as a warrant case was not quashed for want of summary trial notification in circumstances where the accused suffered no prejudice.
(B) Sentencing, statutory minima, and applicability of probation/Section 360 Cr.P.C.
The court then examined the contention that it could mitigate the imprisonment (pointing to the accused's having already undergone about 85 days of imprisonment) and the reliance on Bharosi v. State. The opinion records that the Bharosi judgment involved sentencing the accused to time already undergone and enhancing the fine, but the court was not persuaded that Bharosi laid down a rule allowing courts to impose imprisonment below the statutory minimum where such a minimum has been prescribed by statute (after the amendment dated April 1, 1976). The court stated that no court can be competent to inflict imprisonment less than the minimum prescribed unless the statute itself vests such a power.
The opinion further observed that Section 20AA of the Act excludes the applicability of Section 360 Cr.P.C. and the Probation of Offenders Act, 1958 to persons convicted under the Act unless the person was under eighteen years of age. The accused in this case was recorded as being 26 years old (and the magistrate's estimation concurred). Therefore, statutory relief under Section 360 Cr.P.C. or the Probation of Offenders Act could not be extended to him.
(C) First proviso to Section 16(1) and "adequate and special reasons"
The court accepted that the facts placed the case within the scope of the first proviso to Section 16(1) of the Act but found that there were no "adequate and special reasons" in the record to justify imposing a light sentence (the opinion specifically remarks there appears to be no adequate and special reasons to impose the three‑month sentence provided in the proviso), especially given that the milk analyzed contained about 53% added water.
(D) Outcome of the analysis
On the combined consideration of the procedural and sentencing points, the court concluded that (i) the failure to adopt the precise summary‑trial formalities did not vitiate the proceedings in the absence of any shown failure of justice; (ii) the court lacked jurisdiction to impose imprisonment below a statuteally prescribed minimum and could not extend probationary reliefs excluded by the Act (unless the accused was under 18, which he was not); and (iii) notwithstanding these positions, the revision petition was "partly" allowed, resulting in a reduction of sentence (see Holding below). The opinion does not set out an extended, explicit rationale for the particular quantum of reduction from one year to six months beyond the court's discretionary exercise in the revision proceedings; the text records the reduction but does not elaborate further reasons for that specific reduction in the body of the opinion.
Holding and Implications
Core Ruling: The revision petition was PARTLY ALLOWED. The conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 was maintained, and the sentence was modified.
The court's operative sentencing order: the accused‑petitioner was sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000/‑, and in default of payment of the fine to further suffer one month's simple imprisonment. The accused, who was on bail, was ordered to surrender on his bail bonds before the trial court; failure to do so would permit the trial court to take steps to ensure he undergoes the sentence. The accused is entitled to adjustment of the sentence already undergone by him.
Direct consequences: conviction is affirmed; sentence is reduced from one year RI to six months RI with the same fine amount as before; the accused remains liable to serve the balance of the sentence (with adjustment for time already served) and must comply with surrender directions. The opinion does not announce or establish any new, broad precedent; it applies existing statutory provisions and precedents to the facts and emphasizes that procedural irregularity in form (summary versus warrant trial) does not automatically void a conviction absent demonstration of failure of justice.
1. The learned Additional Sessions Judge, Bharatpur under his judgment dated April 18, 1984 dismissed the appeal of the accused-petitioner both in respect of his conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act) as well as his sentence of one year's rigorous imprisonment and a fine of Rs. 1000/- or in default of payment of fine to further suffer simple imprisonment for one month. The said conviction was recorded and sentence was inflicted on the accused petitioner by the Chief Judicial Magistrate, Bharatpur under his judgment dated June 10, 1983.
2. Hari Dutt Sharma PW 1 was the Food Inspector, Bharatpur on May 7, 1981. On that day he saw that the accused-petitioner was carrying milk for the purposes of sale and near Dak bungalow, Bharatpur, he (Hari Dutt Sharma) introduced himself to the accused-petitioner and disclosed his identity as Food Inspector and purchased 660 ml. milk after paying its price. The sample was divided in three equal parts and was kept in three clean bottles and 18 drops of formaline was mixed in each bottle and they were sealed and were sent to local Health Officer for analysis. The sample reached to the Public Analyst on May 7, 1981, i.e., the same day it was taken from the accused petitioner. It was analysed by the Public Analyst and as per his report dated May 9, 1981 he found as under:
Fat contents : 9.5% Solid non-fats : 4.0% Starch : Absent Sugar : Absent As per the report of the above Analysis the Public Analyst under his report dated May 9, 1981 came to the conclusion that the Sample of milk was adulterated due to its containing of about 53% of added water. After obtaining the consent under Section 20 of the Act for initiation prosecution against the petitioner, a complaint was tiled before the Chief Judicial Magistrate who tried the accused-petitioner, who pleaded not guilty to the charge On behalf of the prosecution the statement of Hari Dutt Sharma and Ramji Lal were recorded. Thereafter, the accused petitioner was examined under Section 313. Cr.PC to explain the circumstances appearing against him in the statement of the prosecution witnesses. He however, denied that any sample was taken from him. In answer to the last question the accused-petitioner came out with a plea that he does not sell the milk and he was taking the milk to his relation Shibbo because there was a programme of 'KATHA' in his house and he had be n invited there. According to him, he carried 5-7 kg. Milk. The accused examined two witnesses in his defence, namely, Shibbu and Vipti The learned Chief Judicial Magistrate as already stated convicted and sentenced the accused petitioner as mentioned above and the appeal preferred by the petitioner against his conviction and sentence was dismissed.
3. The first contention of the learned Counsel for the petitioner is that by virtue of Section 16A of the Act the case could have been tried summarily but had not so been tried. It is also contended that if the law prescribes a particular procedure for trial of cases then the same procedure must be followed. It appears that such a plea was not raised before the trial court or before the appellate court. Be that as it may, there can be no dispute that the Chief Judicial Magistrate has been authorised to try cases appears to have been tried by the learned Magistrate having jurisdiction in the matter, though instead of trying the case summarily a procedure of warrant cases has been adopted, the question is whether in such case can it be said that trial can be held by the learned Magistrate without jurisdiction. Under Section 16A of the Act all offences under Sub-section (1) of sections 16 of the Act shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the Code of Criminal Procedure shall as far as may be apply to such trial. The second proviso to Section 16A of the Act empowers the Magistrate who is authorised to try the cases summarily that when at the commencement of or in the course of a summary trial under Section 16A of the Act it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus even if at the commencement of the summary trial the Magistrate thinks it undesirable to try such a case summarily, he shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus, the question is if the Magistrate without hearing the parties and without recording the order of affording opportunity to the parties on the question tries the case straight way as a warrant case, whether it renders the judgment of the learned Magistrate without jurisdiction? A look at Chapter XXXV of the Code of Criminal Procedure will show that the said chapter contains (he provisions in respect of irregular proceedings Under Section 461, Cr.PC if any Magistrate not being empowered by law in this behalf does any of the things mentioned in cl. (a) to (q) of Section 461 Cr.PC then his proceedings shall be vitiated. It has already been said earlier that the Chief Judicial Magistrate in Rajasthan have been empowered to try cases summarily Section 465, Cr.PC is relevant. Sub-section (1) of 465, Cr.PC provides that subject to the provisions here in before contained, no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any irregularity in any sanction for the prosecution unless in the opinion of that court a failure of justice has in fact been occasioned thereby. Therefore, even if the accused should have been tried summarily by virtue of Section 16A of the Act by the Magistrate authorised in that behalf, and the learned Magistrate at the commencement of the proceedings does not give an opportunity to the parties of hearing on that question and does not record an order that it will be undesirable to try the case summarily, and instead of trying the case summarily tries it as a warrant case, the accused will have to show that by adoption of that procedure failure of justice has been occasioned. In the instant case no such failure of justice has been occasioned. No such objection was taken by the accused in the trial of the case or even at the appellate stage, and even today the learned Counsel for the petitioner could not show that any failure of justice has been occasioned by not trying the case summarily but trying it as a warrant case. Il may be stated that the trial of the case as warrant case is more beneficial to the accused than trying it summarily. In the case of Dharanidhar Sahu v. State of Orissa 1987 (1) PFA Cases 113, a similar question arose and the learned Judge, where there was no notification under Section 16A of the Act authorising the Magistrates to try food adulteration cases summarily, refused to quash the trial which was held as as a warrant case on the ground that the accused was not prejudiced in any manner. It was held that the trial was not without jurisdiction and the conviction was not vitiated.
4. I am of the opinion that an offence under Section 16(7) of the Act by virtue of Section 16A has to be tried summarily, but in case a Magistrate in this case the Chief Judicial Magistrate who has jurisdiction to try the cases summarily by virtue of authorisation under Section 16A of the Act in that behalf, does not try the case summarily and does not afford any opportunity of hearing as provided under Second proviso of Section 16A of the Act and even does not record an order that it would be undesirable to try the case summarily, the trial cannot be held to be vitiated. It is necessary that the accused must show that as a result thereof failure of justice has been occasioned. Learned Counsel for the petitioner, as already stated earlier could not show that there has been any failure of justice, more so when the procedure of the trial of warrant cases is more beneficial to the accused.
5. It was next contended by the learned Counsel that the sample of milk was taken from the possession of the accused petitioner on May 7 1981 and the accused has already undergone about 85 days imprisonment and therefore that sentence of imprisonment and a fine shall meet the ends of justice Further it was contended that even in case where the minimum sentence has been prescribed, the court has power to award a sentence of imprisonment less than minimum prescribed. In support of his contention reliance was placed on the case of Bharosi v. State 1986(1) WLN 548. In that case it related to the post April 1, 1976 period and the accused had already undergone 8 days imprisonment. The learned Judge sentenced the accused for the period already undergone by him and enhanced the sentence of fine from Rs. 1000/- to Rs. 1500/-. It appears that the learned Judge has not laid down any law that even in case under Section 16 of the Act which related to the post April 1, 1976, the court has jurisdicion or is competent to inflict a sentence of imprisonment less than minimum prescribed. It appears that the attention of the learned Judge was not drawn to the amendment to Section 16 which was introduced on April 1, 1976. That amendment escaped the notice of the learned Judge otherwise no court can be competent to inflict the sentence of imprisonment less than minimum prescribed if no such power is vested in the court. I am of the opinion that if the aforesaid judgment in the case of Bharosi (supra) does not lay down that in case where the minimum sentence has been prescribed, the court can award the sentence less than minimum prescribed. If that would have been the case or the judgment is read to have laid down that law, then with due respect to the learned Judge, it will not be a good judgment. It may be stated that under the statute for offence the minimum sentence is prescribed, then the court has no jurisdiction to award the sentence loss than minimum prescribed. It is stated that in such a case even the applicability of Section 360 Cr.PC or the provisions of the Probation Offenders Act, 1958 is not excluded the court may and has jurisdiction to extend the benefit of those provisions, but in case under Statute which excludes the applicability of Section 360 Cr. PC or Probation of Offenders Act, 1958 no benefit of either of those provisions can be extended. It may be stated by a mere reference to Section 20AA of the Act that nothing contained in the Probation of Offenders Act, 1958 or Sention 360 Cr.PC shall apply to a person convicted of an offence under the Act unless that person is under eighteen years of age. Thus unless the accused is under 18 years of age on the date of commission of the offence, his case can lot be dealt with either under Section 360 Cr PC or under the provisions of Probation of Offenders Act, 1958 A look at the instant case will show that the sample of milk was taken from the possession of the accused on May 7, 1931, and the statement of the accused under Section 313 Cr.PC was recorded on March 31, 1983 i.e. less than 2 years after the taking of the sample. The accused had given his age to the Magistrate as 26 years and the estimation of the learned Magistrate is also the same in respect of age of the of the accused. Thus, there is material on record that even on the date of the commission of offence the accused was more than 18 years of age. He was aged 24 years. Thus, the case of the accused-petitioner could not be dealt with either under Section 360 Cr. PC or under the Probation of Offenders Act.
6. The last contention of the learned Counsel for the petitioner is that it is a case which falls under section 16(1)(first proviso) and therefore for any adequate and special reasons to be mentioned in the judgment, the court can impose sentence of imprisonment which shall not be less than 3 months, but which may extend to two years and with fine which shall not be less than five hundred rupees. There can be dispute that the case of the accused falls under the first proviso of clause (1) of Section 16 of the Act, but there appears to be no adequate and special reasons to impose the sentence of imprisonment of three months because as already stated earlier the milk which was being carried by the accused petitioner and which was recovered from his possession was found to be containing 53% added water.
7. Consequently, I partly allow this revision petition. While maintaining the conviction of the accused petitioner under Section 7/16 of the Act, the accused-petitioner is sentenced to six months' rigorous imprisonment and a fine Rs. 1000/-, and in default of payment of fine to further suffer one month's simple imprisonment. The accused is on bail. He must surrender to his bail bonds before the trial court failing which the trial court shall take steps and see that the accused petitioner is apprehended and undergoes the sentence awarded to him by this Court. He will be entitled to the adjustment of the sentence already undergone by him.
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