In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 37 of 2002 Date of decision: 03.03.2009 Prem Kumar Nagpal ... Petitioner Vs. State of Haryana and another ... Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. N.S. Shekhawat, Advocate for the petitioner. Mr. Parduman Yadav, DAG, Haryana for the respondent. A.N. Jindal, J Challenge in this petition is to the judgment dated 3.1.2002 passed by the learned Additional Sessions Judge, Faridabad, dismissing the appeal filed by the petitioner-accused Prem Kumar Nagpal (herein referred as 'the petitioner') against the judgment dated 22/24.9.1999 passed by the Chief Judicial Magistrate, Fridabad, convicting and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs.1000/- under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (herein referred as 'the Act'). The brief resume of facts is that on 29.7.1990, at about 11.30 a.m. Raj Kumar, Government Food Inspector along with Dr. Ashok Kumar Gupta, Medical Officer, B.K. Hospital Faridabad inspected the premises of the petitioner who was found in possession of 30 bottles of Diamond Synthetic Vinegar for public sale. After serving notice on the prescribed form, he purchased three bottles of Synthetic Vinegar for analysis. One sealed sample along with memorandum in Form VII was sent to the Public Analyst Haryana Karnal for analysis and the remaining two samples were deposited with the Local Health Authority, Faridabad. On analysis, the sample was found to be adulterated inasmuch as it gives 3.24 grams of Acetic Acid content against the minimum prescribed limit of 3.75 grams laid down for synthetic vinegar under item No.20 of the Prevention of Food Adulteration Rules. As such a complaint was filed. Thereafter, on the request of the petitioner, second sample was sent to the Central Food Crl. Revision No. 37 of 2002 -2- *** Laboratory, Mysore vide analysis which also reported that the sample did not conform to the standards laid down for Synthetic Vinegar under the provisions of P.F.A. Act and Rules as it was misbranded and the test for the presence of sulphate and chlorides were positive including total solids contents which are not present in synthetic vinegar, contrary to Section 2 (ix) © of the Act. On receipt of the report Ex.PG, amended complaint was presented in the Court After recording pre-charge evidence, he was charged under Section 7 read with Section 16 (1) (a) (i) of the Act, to which he pleaded not guilty and opted to contest. The prosecution led evidence and ultimately the trial ended in conviction. His appeal also failed. Arguments heard. Record perused. Without assailing the judgment of conviction, it has been contended by the learned counsel for the petitioner that he being the first offender could be extended benefit of probation under the Probation of Offenders Act, 1958 (herein referred as 'the Act'). To the contrary, Mr. Praduman Yadav, DAG, Haryana has urged that in view of the minimum sentence provided for the offence, no benefit of probation could be extended to him. Having examined the issue in depth, it may be observed that the issue with regard to extending of benefit of probation in cases where minimum sentence is provided by the Act, was dealt with by this Court way back in the year 1980 in the case of Joginder Singh vs. The State of Punjab, 1980 Crl. L.J. 1218 (1) wherein Full Bench answered the reference in the following words:- “10. Now apart from rationale and statutory provisions, it appears to me that the issue before us is so completely covered by way of analogy by the binding precedents of the final Court that it would preclude any further elaboration. Undoubtedly, Section 16 of the Prevention of Food Adulteration Act, 1954 again provides for a minimum sentence of imprisonment. Equally, undeniable it is, that this statute is a Special Act which does not in itself provide for the procedure of criminal Crl. Revision No. 37 of 2002 -3- *** trials for offences committed thereunder and Section 4(2) of the Code of Criminal Procedure, 1973 is plainly applicable to it. The position is identical as regards Section 61(1)(c) of the Punjab Excise Act, 1914. This again provides a minimum sentence and the Excise Act is a special statute not prescribing the procedure for trials thereunder and is squarely within the ambit of Section 4(2) of the Code of Criminal Procedure, 1973 with regard thereto. Therefore, it is plain that the position as regards offences under Sec. 16 of the Prevention of Food Adulteration Act, 1954 and Sec. 61(1)(c) of the Punjab Excise Act, 1914, is one of total identity. This being so, the issue arose virtually in similar analogous terms before their Lordships under Section 16 of the Prevention of Food Adulteration Act, 1954. In Isher Dass v. State of Punjab, AIR 1972 SC 1295 : (1972 Cri LJ 874), Khanna, J. speaking for the Bench posed the question in the following terms:- “The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the legislature for a person found guilty of the offence under the Prevention of Food Adulteration Act, the Court can resort to the provisions of the Probation of Offenders Act.........” And, after a detailed discussion on principle and the relevant statutory provisions, returned the following answer:- “The provisions of Probation of Offenders Act, in our opinion, point to the conclusion that their operation is not excluded in the case of persons found guilty of offences under the Prevention of Food Adulteration Act. Assuming that there was reasonable doubt or ambiguity, the principle to be applied in construing a penal act is that such doubt or ambiguity should be resolved in favour of the person who would be liable to the penalty (see Maxwell on Interpretation of Statutes P.239, (12th Edition). It has also to be borne in mind that the Probation of Crl. Revision No. 37 of 2002 -4- *** Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act. As the legislature enacted the Probation of Offenders Act despite the existence on the statute book of the Prevention of Food Adulteration Act, the operation of the provisions of Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactment, viz, Prevention of Food Adulteration Act. Indeed as mentioned earlier, the non obstante clause in Section 4 of the Probation of Offenders Act is a clear manifestation of the intention of the legislature that the provisions of the Probation of Offenders Act would have effect notwithstanding any other law for the time being in force....” In the light of the aforesaid observations, it may perhaps also be noticed that both the provisions of Section 360 and 361 of the Criminal Procedure Code, 1973 and the Probation of Offenders Act were enacted long after the Punjab Excise Act, 1914 and the relevant amendments thereto.” Similarly, this Court in case Ramesh Chand alias Ramesh Kumar vs. State of Haryana, 2005 (1) RCR (Crl.) 332, while relying upon the judgments delivered by the Apex Court in case Babulal Hargovindas vs. State of Gujrat, AIR 1971 SC 1277, Ajitprasad Ramkishan Singh vs. The State of Maharashtra, AIR 1972 SC 1631, and Jog Dhian vs. State of Haryana, 2001 (2) RCR (Criminal) 331, observed that in cases where minimum sentence is provided, to extend benefit of probation to the petitioner in the circumstances of the case, was no bar. Now while returning to the facts of the present case, the occurrence took place way back in the year 1990. The petitioner has already suffered a lot due to the pendency of the protracted proceedings. He appears to be the first offender as no bad antecedents have been brought on record so as to dub him as habitual offender. Resultantly, while dismissing the petition, sentence passed against the petitioner is modified to the extent that he be released on Crl. Revision No. 37 of 2002 -5- *** probation under Section 4(1) of the Probation of Offenders Act, 1958 on his executing a bond in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Faridabad for a period of one year within which period he shall continue to be of good behaviour and keep peace and in case of breach of conditions of the bond, he will be ready to serve sentence as and when called for. However, the fine is converted into costs of litigation. In addition to that, he is directed to deposit Rs.30,000/- more towards costs of litigation, within three months from today, failing which this petition would be treated as dismissed in toto. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Faridabad for compliance. March 03, 2009 (A.N. Jindal) deepak Judge