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Advocates
  • N.Balaraman Pillai
  • P.V.Madhavan Nambiar
Judges
  • Ms. Justice P. Janaki Amma
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • N.Balaraman Pillai
  • P.V.Madhavan Nambiar
Judges
  • Ms. Justice P. Janaki Amma
See more information ...
Smart Summary

Structured Summary of the Opinion (Revision Petition)

Factual and Procedural Background

On 7-8-1972 the food inspector (PW.2) visited a grocery shop in Pinarayi Panchayat, Cannanore district, and purchased 750 grams of "toor dhal" for sampling under the Prevention of Food Adulteration Act and the rules. The sample was divided into three parts; one portion was sent to the Public Analyst, Trivandrum, whose report (marked ext. P5) stated that the sample was wholly "lac dhal" (kesari dhal) and that it gave a positive test for a characteristic amino acid (B.O.A.A.) present in kesari dhal. Sale of kesari dhal is prohibited as injurious to public health.

A complaint was filed by PW.4 (then food inspector) against Kumaran (alleged licensee of the shop) as the first accused and the petitioner (the second accused) as the second accused. The trial court acquitted the first accused for lack of proof of his active participation and held that conduct of the grocery shop was entrusted to the second accused (the petitioner). The trial court convicted the petitioner under s.16(1)(a)(i) read with s.7(1) of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment till the rising of the court and to pay a fine of Rs. 2,000; in default of payment, six months' rigorous imprisonment was directed. The Sessions Judge, Tellicherry, confirmed conviction and sentence on appeal. The present revision petition challenges that conviction and sentence.

Legal Issues Presented

  1. Whether the conviction of the petitioner could be sustained on the identification and sampling evidence as recorded by the trial court and affirmed on appeal (including whether the testimony of the food inspector alone sufficed).
  2. Whether the questioning under section 342 Cr.P.C. was so framed as to mislead the petitioner and cause prejudice warranting interference with conviction.
  3. Whether the trial court complied with section 6 of the Probation of Offenders Act when sentencing a person who stated his age as 20 years, and whether the sentence (including a fine with consequential imprisonment in default) was legally permissible without recording reasons.
  4. Whether directing that imprisonment "till the rising of the court" be rigorous was proper in view of the proviso to section 418 Cr.P.C.

Arguments of the Parties

Revision Petitioner's Arguments

  • Denial of status as the salesman of the grocery shop—he claimed he had nothing to do with the shop and was not the salesman at the relevant time.
  • Asserted an alibi/alternative employment: he was a beedi roller in the Dinesh Beedi Company on the relevant date and thus could not have been operating the shop.
  • Challenged the sampling and identification procedure and evidence, contending there was inadequate proof that PW.2 had properly sampled or that the petitioner was the person present at the time of sampling.
  • Contended that questions under section 342 Cr.P.C. were improperly framed in a manner that could suggest ownership of the shop and might have misled the petitioner.

Prosecution / Respondent Case (as recorded by the courts)

  • Relied on the sampling carried out by PW.2 and the public analyst's report (ext. P5) establishing that the sold product was prohibited kesari dhal.
  • Asserted that the conduct of the shop was entrusted to the petitioner, supported by signatures in the mahazar and the vakkalath (showing close resemblance in the names written) and other circumstances including PW.3's admitted signature in the mahazar (despite PW.3 turning hostile on identity).
  • Maintained that the testimony of the food inspector (PW.2) could be sufficient to sustain conviction (consistent with the Supreme Court guidance cited).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Prem Ballab v. State (1977 Crl. Q. 12 / 1977 Crl. L.J. 12) (as cited) It is only out of a sense of caution that courts insist that the testimony of a food inspector should be corroborated by an independent witness; and the Supreme Court has observed that benefits under the Probation of Offenders Act should not ordinarily be given to offenders convicted under the Prevention of Food Adulteration Act and other economic offences. The court relied on this authority to support the proposition that a conviction may stand on the testimony of the food inspector (PW.2) even if there is no independent corroboration. At the same time, the court acknowledged the authority's statement that probation benefits are usually not extended to economic offences, but went on to consider the special protection for youthful offenders under s.6 of the Probation Act.
Isher Das v. State of Punjab (AIR 1972 SC 1295) Persons under 21 years of age convicted under the Prevention of Food Adulteration Act should not be deprived of the advantage of the Probation of Offenders Act; and a sentence of fine that carries with it the consequence of imprisonment on default undermines the object of the Probation Act. The court applied this precedent to hold that the trial court erred in not considering s.6 of the Probation Act for a 20-year-old offender and in imposing imprisonment without recording reasons. The court also relied on the observation that imposing a fine which leads to imprisonment in default defeats the object of probation for a youthful offender.

Court's Reasoning and Analysis

The court examined identity and evidentiary issues first. It noted that the petitioner deliberately altered his signature over various proceedings: in the mahazar and the vakkalath the petitioner wrote his name in English followed by a signature, while later (in the statement under s.342 Cr.P.C.) he wrote his name in Malayalam followed by a different signature. The court considered that the identity must be derived from the name preceding the signature because the signatures themselves were inconsistent. The close resemblance between the name written in the mahazar and that in the vakkalath supported the conclusion that the person present when PW.2 took the sample and the person who signed the vakkalath were the same.

The court addressed the petitioner's evidence (DW.1 and ext. D1) intended to show he was working elsewhere as a beedi roller on the relevant date. Both the trial court and the sessions judge found this evidence unreliable, and the revising court saw no reason to interfere with that credibility finding.

The court considered the returned certificate (sent to the petitioner's address as salesman) which was returned marked "person not known." It found this circumstance not conclusive because the certificate was reportedly sent in March 1973 while the sale occurred on 7-8-1972; the petitioner may have left the shop after the sampling. The court also observed that PW.3 (an independent witness) turned hostile but admitted his signature in the mahazar; the court inferred that PW.3's denial of presence was a deliberate attempt to help the petitioner.

On the adequacy of the testimony of the food inspector (PW.2), the court reiterated the principle from Prem Ballab that while courts normally seek corroboration, conviction can be based on the testimony of a food inspector where credible. Thus, the court held there was no ground to upset the finding of guilt on the identification and sampling evidence.

Regarding the procedure under section 342 Cr.P.C., the revising court found no indication that the petitioner was misled by the framing of questions or that any prejudice resulted; the petitioner had understood the prosecution case and mounted a defence.

The court then turned to sentencing law. The petitioner had stated his age as 20 years in the s.342 statement. Section 6 of the Probation of Offenders Act provides that persons under 21 shall not be sentenced to imprisonment unless the court is satisfied, having regard to circumstances and character, that probation is not desirable; reasons must be recorded when sending such a person to imprisonment. The revising court found that the trial court had adverted to the youth of the petitioner only to reduce the substantive term, but had nevertheless sentenced him to imprisonment till the rising of the court and imposed a fine of Rs. 2,000 — with consequential imprisonment in default. The revising court held that the trial court overlooked the mandatory requirement of s.6 to consider and record reasons before imposing imprisonment on an offender under 21.

The revising court relied on the Isher Das observations that youthful offenders should not be deprived of the advantage of probation and that imposing a fine which entails imprisonment on default defeats the object of the Probation Act for persons covered by it. On a separate but related point, the court held that directing that imprisonment till the rising of the court be "rigorous" was incorrect: under the proviso to s.418 Cr.P.C., imprisonment till the rising of the court is generally simple imprisonment and need not involve preparation of a warrant to jail; the reasonable inference is that such imprisonment is simple, not rigorous.

In consequence, while the court did not upset the conviction on facts and evidence, it found sentencing errors: failure to consider s.6 Probation of Offenders Act for a 20-year-old and wrongly making "till the rising of the court" imprisonment rigorous, and the imposition of a fine which could lead to default imprisonment without reasons being recorded.

Holding and Implications

Revision petition allowed; the sentence passed by the trial court is set aside and the matter is remanded to the trial court to consider whether section 6 of the Probation of Offenders Act should be applied and for disposal according to law.

Implications:

  • Direct effect on the parties: The conviction as recorded by the trial court and confirmed by the sessions judge was not interfered with on the facts; however the sentence was held to be legally defective and has been set aside. The trial court must reconsider sentencing in light of s.6 of the Probation of Offenders Act and record reasons if imprisonment is imposed on a person under 21.
  • The court identified that imposing a fine that leads to imprisonment in default undermines the object of the Probation Act for youthful offenders; hence the trial court must take that into account on resentencing.
  • No broader legal precedent was expressly created by this opinion beyond applying and reconciling existing Supreme Court guidance (as cited) to the facts of a youthful offender; the decision remands for proper sentencing procedure rather than reformulating substantive law.

This summary is confined to and derived solely from the content of the provided opinion. No external facts or inferences beyond those expressly stated in the opinion have been added.

Show full summary ...

    Raveendran v. Food Inspector, Pinarayi Panchayat

    1. The petitioner is the second accused in a case charged by the food inspector, Pinarayi panchayat in cannanore district. Pw. 2, The food inspector visited the grocery shop building no. W. V. 64a of the pinarayi panchayat at about 12 - 15 p m. On 7 - 8 - 1972. The petitioner, According to the complainant, Was conducting sales in the shop. Pw. 2 purchased 750 grams of toor dhall for purposes of sampling after following the formalities prescribed under the prevention of food adulteration act and the rules thereunder. The sample was divided into three equal parts and one portion of the same was sent to the public analyst, Trivandrum for analysis. The public analyst sent a report which is marked as ext. P5 in the case stating that the sample consisted wholly of lac dhall otherwise known as kesari dhall as seen from the microscopic examination. The sample also gave a positive test for b. O. A. A which is a characteristic amino acid present in kesari dhall. The sale of kesari dhall under any description is prohibited on account of the fact that its consumption is injurious to public health. Relying on the report, A complaint was filed by pw. 4, The then food inspector against one kumaran, Stated to be the licensee of the shop as the first accused and the petitioner as the second accused. The trial court acquitted the first accused on the ground that there was no proof to show that he had any active part in the transaction and that the conduct of the grocery shop was entrusted to the second accused - revision petitioner. The court held that the petitioner was guilty of an offence punishable under s. 16 (1) (a) (i) read with s. 7 (1) of the prevention of food adulteration act. He was sentenced to undergo rigorous imprisonment till the rising of the court and a fine of rs. 2000/ -. In default of payment of fine, He is to undergo rigorous imprisonment for six months. There was an appeal before the sessions judge, Tellicherry. The sessions judge confirmed the conviction and sentence. The revision petition is filed against the above conviction and sentence.

    2. The defence put forward by the revision petitioner both in the trial court and in the appellate court was one of denial of his status as the salesman of the shop. The petitioner also contended that there was no proper evidence to prove the sampling by pw 2. The contention of the petitioner is that he had nothing to do with the shop mentioned and that he was never a salesman there. According to him, During the relevant period, He was a beedi roller in the dinesh beedi company. He examined dw. I, Who is stated to be a maistry of the dinesh beedi company and also produced ext. Dl in order to show that he was working as a beedi roller for the company on the relevant date. According to dw. 1, It was not open to an employee of the company to undertake any other extra work. Both the trial court and the appellate court did not act upon the evidence of dw. 1 or on ext. D1. The court held the evidence to be unreliable. There is no reason for interference with the finding.

    3. It is noted that there has been a deliberate attempt by the petitioner to change his signature from what it was during the date of sale. In the mahazar prepared by pw. 2, He has signed after writing down his name in english. In the vakkalath filed by him before the trial court also, The signature is put after writing down his name in english. There is close resemblance between the name written in the mahazar and that written by him in the vakkalth, Which clearly indicates that the person who was present at the time when pw. 2 is alleged to have taken the sample and the person who signed in the vakkalath are one and the same. But curiously enough, In the later papers especially in the statement under s. 342 cr. P. C., He has written his name in malayalam followed by a signature. The signature is nowhere consistent and, Therefore, The identity has to be drawn from the name preceding the signature.

    4. One of the circumstances which has been relied upon by the petitioner to show that he was not the person who was present on the alleged date of sale is the fact that the copy of the certificate which was sent in his address as salesman of the shop was returned stating that the person was not known. But this is not a conclusive circumstance. The alleged sale took place, As already stated, On 7 - 8 - 1972, While the copy of the certificate is seen to have been sent only in march, 1973. It is possible that the petitioner left the shop subsequent to the sampling.

    5. It is pointed out that apart from the testimony of pw. 2, There is no other evidence to prove the identity of the person in as much as pw. 3, The independent witness turned hostile. But pw. 3 has admitted his signature in the mahazar. The conclusion that he was deliberately helping the petitioner by denying his presence at the time of the sampling is, Therefore, Justified. There is also no rule that a conviction cannot be entered on the sole testimony of pw. 2. As has been held by the supreme court in prem ballab v. State (1977 crl. Q. 12) ,

    "it is only out of a sense of caution that the courts insist that the testimony of a food inspector should be corroborated by some independent witness."

    6. The next contention put forward is that the questioning by the trial court under s. 342 cr. P. C., Was not properly made and the revision petitioner was not given an opportunity to deny that he was not a salesman of the shop. It is pointed out that the questions were so framed as to appear that the shop belonged to him while the prosecution case itself was that the licensee of the shop was the first accused in the case. It is, However, Clear that the petitioner understood the case of the prosecution and had chalked out a defence of his own. There is no indication to show that the revision petitioner was misled by the questions put or that any prejudice has been caused to him. The conviction of the petitioner does not deserve interference on this ground also.

    7. It is, However, Seen that the trial court as also the learned sessions judge did not give importance to the fact that the petitioner has mentioned bis age as 20 years in his statement under s. 342 cr. P. C. Under s. 6 of the probation of offenders act, A person under the age of 21 years shall not be sentenced to imprisonment unless the court is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, It would not be desirable to deal with him under s. 3 or s. 4 of the probation of offenders act. Whenever a court passes a sentence of imprisonment, The reason for so doing should also be recorded. The trial court has adverted to the fact that the petitioner was only 20 years old. His young age is taken as a ground for not awarding the minimum substantive term of imprisonment mentioned in the prevention of food adulteration act. In other words, The age of the petitioner was only taken into account for the purpose of reducing the substantive term of imprisonment. The court has, At the same time, Directed that in default of the petitioner's omitting to pay the fine of rs. 2000/ -, He should suffer rigorous imprisonment for six months. Evidently, The court has overlooked the provisions of s. 6 of the probation of offenders act, Which, In the words of the supreme court, Embodies in it a mandatory injunction against the imposition of a sentence of imprisonment in the case of offenders under the age of twenty - one years, Unless the conditions mentioned in the section exist. The reasons for imposing a term of imprisonment should be recorded in the judgment.

    8. Though the supreme court has time and again stated that the benefit of the probation of offenders act should not be given to offenders under the prevention of food adulteration act and other economic offences (the latest decision reported is prem ballab v. State (1977 crl. L. J. 12) already referred to), A distinction is made in the case of youthful offenders coming under the purview of s. 6 of the probation of offenders act. Reference may be made in this connection to the following observation of the supreme court in isher das v. State of punjab (air. 1972 sc. 1295) :

    "as regards persons under 21 years of age, However, The policy of the law appears to be that such a person in spite of his conviction under the prevention of food adulteration act, Should not be deprived of the advantage of probation of offenders act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology."

    the court has also observed:

    "in this respect we are of the opinion that a sentence of fine also carries with it the consequence of imprisonment in case the accused fails to pay the fine. As the object of probation of offenders act is to avoid imprisonment of the person covered by the provisions of that act, The said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine."

    in the light of the above observation, The trial court committed an error in not adverting to the provisions of s. 6 of the probation of offenders act and in sentencing the offender to imprisonment till the rising of the court and fine of rs. 2000/ - without assigning reasons.

    9. The trial court also committed an error in directing that the imprisonment till the rising of the court should be rigorous. Under proviso to s. 418 cr. P c., Where the accused is sentenced to imprisonment till the rising of the court, It is not necessary that the court should prepare a warrant to the jail and the accused may be confined in such place as the court may direct. The reasonable inference is that imprisonment till the rising of the court is simple imprisonment.

    for the foraging reasons, I set aside the sentence passed by the trial court. The case is remanded to the trial court for considering whether s. 6 of the probation of offenders act should not be applied and for disposal according to law. The revision petition is allowed as stated above.

    allowed.

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    Comments

    Raveendran v. Food Inspector, Pinarayi Panchayat
    (Feb 4, 1977)