PETITIONER:
EKNATH SHANKARRAO MUKKAWAR
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT12/04/1977
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1977 AIR 1177 1977 SCR (3) 513
1977 SCC (3) 25
ACT
Revisional jurisdiction---Suo motu powers of the High
Court to enhance sentence--Power not taken away by provision
for appeal against inadequacy of sentence by the State
Government or the Central Government---Criminal Procedure
Coae (Act II of 1974), 1973, section 397 read with s. 401
(Section 435/439, Criminal Procedure Code, 1898).
Criminal Procedure Code (Act II of 1974), 1973, Sec-
tion 377(1), (2)-Meaning of the words "by any other agency
empowered to make investigation into any offence under any
Central Act"--Investigation under Prevention of Food Adul-
teration Act by Food Inspectors--Section 377(1) and not s.
377(2) of the Cr. P.C. applies--Appeal at the instance of
State Government is maintainable.
prevention of Food Adulteration Act, 1954, Section
16(1), Proviso I-Power to impose sentence less than mini-
mum--Interference by appellate court.
Appeal against inadequacy of sentence--Power of court to
alter conviction to an aggravated category--Criminal Proce-
dure Code (Act II of 1974), 1973, Section 377-- Scope of.
Practice and precedents--Binding effect of decisions of
coordinate court.
HEADNOTE
The appellant and his father were charged u/s. 2(1) (c)
of the Prevention of Food Adulteration Act, 1954 for adul-
teration of chilly powder. The sample of chilli powder
which was seized by the Food Inspector on April 13, 1974
contained 37.25% 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 power was 32.4%. The judicial
magistrate, Udgir, found that the chilli powder was adulter-
ated within the meaning of s. 2(i) of the Act and convicted
the appellant under s. 16(1) (a) (i), proviso I of the
Prevention of Food Adulteration Act, 1954 r/w s. 2(i)(1) and
s. 7(1) of the said Act and sentenced him to simple impris-
onment till the rising of the court and to pay a fine of Rs.
500/- and in default rigorous imprisonment for two months.
The appellant’s father was, however, acquitted. The State
of Maharashtra preferred an appeal against the order of
acquittal of the father and against the inadequacy of the
sentence awarded to the appellant. The High Court dismissed
the appeal against acquittal of the appellant’s father but
allowed the appeal of the State with regard to the inadequa-
cy of the sentence. Affirming the conviction of the appel-
lant under s. 16(1) (a) (i) r/w sections 2(1)(i) and 7(1) of
the Act, the High Court enhanced the sentence to six months’
simple imprisonment and a fine of Rs. 1000/-, in default
simple imprisonment for two months.
Allowing the appeal by special leave, the Court,
HELD: (1) The new Code of Criminal Procedure, 1973 has
not abolished the High Court’s power of enhancement of
sentence by exercising revisional jurisdiction suo motu.
The provision for appeal against inadequacy of sentence by
the State Government or the Central Government does not lead
to such a conclusion. High Courts power of enhancement of
sentence in an appropriate case by exercising suo motu power
of revision is still extent u/s. 397 read with s. 401 Crimi-
nal Procedure Code, 1973, inasmuch as the High Court can "by
itself" call for the record of proceedings of any inferior
criminal court under its jurisdiction. The provision of s.
401 (4) is a bar to a party who does not appeal when appeal
lies, but applies to revision. Such a legal bar under s.
401(4) does not stand in the way of the High Courts exercise
of power of revision suo motu, which continues as before in
the new .Code. [545H, 546A-C]
514
(2) Under sub-section (1) of s. 377, the State Govern-
ment has a right to appeal against the inadequacy of sen-
tence 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 investi-
gated by the Delhi Special Police Establishment or is
investigated by any other agency empowered to make investi-
gation 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 the
Prevention 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 Inspectors to make
investigation of offences under the Act. In the absence of
any express provision 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 Proce-
dure Code, therefore, is not attracted and the appeal under
s. 377(1), Criminal Procedure Code at the instance of the.
State Government is maintainable. [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 a sentence
less than the minimum, [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 cases 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 circumstances, it is permissible for the courts to
give the benefit in suitable cases. [519 F-G]
(5) In an appeal under s. 377, Criminal Procedure Code,
the High Court may interfere with the sentence, if no rea-
sons for awarding a lesser sentence are recorded by the
Magistrate. Again if the reasons recorded by the Magistrate
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 the
Magistrate were not so grossly inadequate that the High
Court could interfere with the sentence in a petty case.
[520 A-B, C]
(6) In an appeal against inadequacy of sentence it is
not permissible to alter a 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 he is 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 charge as found or even on an altered less
graver charge. [519 D-E]
(7) When there is a decision of a 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 a larger Bench and
not to dispose of the appeal by taking a contrary view.
judicial discipline as well as decorum should suggest that
as the only course.
[520 F]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
577/76
(Appeal by Special Leave from the judgment and Order
dated the 4th Nov. 1976 of the Bombay High Court in Crimi-
nal 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.
515
(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) provi-
so (i) of the Prevention of Food Adulteration Act, 1954,
read with section 2(i)(1) and section 7(i) of the said Act
and sentenced to simple imprisonment till rising of the
court and to pay a 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 Inspec-
tor on April 13, 1974, contained 37.25% 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)(1) although the prosecution 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 appel-
lant. The High Court dismissed the 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(1)(a)(i) read with sections 2(i)(1) and
7(i) of the Act enhanced the sentence to six months’ simple
imprisonment and a fine of Rs. 1000/-, in default simple
imprisonment for two months. Hence this appeal by special
leave.
Mr. Tarkunde, appearing on behalf of the appellant,
submits that the appeal by the State of Maharashtra under
section 377(1), Criminal Procedure Code, 1973, was incompe-
tent 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 a 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
submission, that the power of the High Court to enhance
sentence which was available under section 435/439 Cr.P.C.
of the old Code is 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
under the old Code is now taken away under the new Code by
providing for apppeal against inadequacy of sentence. The
above submission is put forward ex abundanti cautela lest we
may not interfere with the sentence imposed by the High
Court having regard to the possibility of exercise of pow-
ers, suo motu, by the High Court for enhancement of sentence
assuming the appeal is incompetent on the ground urged by
the appellant.
516
We should at once remove the misgiving that the new Code
of Criminal Procedure, 1973, has abolished the High Court’s
power of enhancement of sentence by exercising revisional
jurisdiction, suo motu. The provision for appeal against
inadequacy of sentence by the State Government or ’the
Central Government does not lead to such a conclusion. High
Court’s power of enhancement of sentence, in an appropriate
case, by exercising suo motu power of revision is still
extent under section 397 read with section 401 Criminal
Procedure Code, 1973, inasmuch as the High Court can "by
itself" call for the record of proceedings of any inferior
criminal court under its jurisdiction. The provision of
section 401(4) is a bar to a party, who does not appeal,
when appeal lies, but applies in revision. Such a 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 377(1)
and (2) Cr. P.C. with which we are concerned:
377. (1) "Save as otherwise provided in sub-
section (2), the State Government may,
in any case of conviction on a trial held by
any Court other than a High Court, direct
the Public Prosecutor to present an
appeal to the High Court against the sen-
tence on the ground of its inadequacy.
(2) If such conviction is in a 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 inadequacy".
Mr. Tarkunde 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 Government the Central Government to appeal
against acquittal.
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
conferred upon both the State Government and the Central
Government in express terms in section 378(2). It is
clear that the legislature has maintained a watertight
dichotomy while dealing the matter of appeal against inade-
quacy of sentence. We agree that in the absence of a
similar word "also" in section 377(2) it is not possible for
the court
517
(Goswami, J.)
to supply a casus omissus. The two sections, section 377
and section 378 Cr. P.C. being situated in such close prox-
imity, it is not possible to hold that omission of the word
"also" in section 377(2) is due to oversight or per incuri-
am.
Section 377 Cr. P.C. introduces a new right of appeal
which was not earlier available under the old Code. Under
sub-section (1) of section 377 Cr. P.C. the State Government
has a 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 section 377(1) by
its opening clause "save as otherwise provided in sub-
section (2)". Sub-section (2) of section 377, on the other
hand, confers a right of appeal on the Central Government
against a sentence on the ground of its inadequacy in two
types of cases:
(1) Those cases where investigation is con-
ducted by the Delhi Special Police Establish-
ment constituted under the Delhi Special
Police Establishment Act, 1946.
(2) Those other cases which are investi-
gated by any other agency empowered to
make investigation under any Central Act not
being the Code of Criminal Procedure.
There is no difficulty about the first type of cases
which are investigated by the Delhi Special Police Estab-
lishment where, certainly, the Central Government is the
competent authority to appeal against inadequacy of sen-
tence.
The controversy centres round the second type of cases
viz., those which are 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 Establishment also has to comply with
the provisions of the Code of Criminal Procedure in’ inves-
tigation of offences just as the State Police has to do.
By section 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 such a notification is made
by the Central Government that the Delhi Special Police
Establishment is empowered to investigate the specified
offences. Similarly if in any other Central Act, not being
the Code of Criminal Procedure, a provision is made for
empowering a 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 test, therefore, under
section 377(2) Cr. P.C. is whether the offence is investi-
gated by the
518
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 provi-
sion 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 particu-
lar rule 9 of the Central Rules to point out that it is a
self-contained code detailing the requisite manner of inves-
tigation for the purpose of efficient prosecution of
offenders under that 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 provi-
sion 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 investigatory 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 a sample of an article,
the Food Inspector is not in a position to come to a con-
clusion whether the article is adulterated within the mean-
ing 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 a report to the Magis-
trate for taking cognizance of the offence and his report
will have to be accompanied also by a 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 a
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 Inspectors are empowered to make .inves-
tigation under the Act. Section 377(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 maintain-
able. The first submission of the appellant has no force.
With regard to the second and last submission on sen-
tence Mr. Khanna on behalf of the State submits that this
was a case under section 16 for violation of section 2(i)(c)
of the Act in which case the Magistrate had no jurisdiction
to award a sentence less than six months. According to
counsel, the High Court was right in enhancing the sen-
tence 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
519
(Goswami, J)
inter alia, amended section 2(i)(1) and added a 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 be‘
punishable with imprisonment for a term which shall not be
less than six months but which may extend to six years and a
fine which shall not be less than one thousand rupees. The
proviso to that section, however, relieves an offence
trader sub-clause (i) of clause (a) when inter alia, it is
with respect to an article of food which is adulterated
under sub-clause (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 a sentence of im-
prisonment for a term of less than six months or a 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(i)(1), since, according to him, that will be the
proper conviction on the facts of the case. We are unable
to entertain this plea for altering the conviction in such a
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 adulterated 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 inade-
quacy of sentence it is not permissible to alter the convic-
tion to an aggravated category of offence for which the
accused wan not convicted. While the accused in such an
appeal under section 377 Cr.P.C. can show that he is inno-
cent of the offence, the prosecution is not entitled to
show that he is guilty of a 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 a case under the Prevention
of Food Adulteration Act as the offence is against society
at large affecting the health and wellbeing 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 eases described under the Act. Such offences
cannot be treated in a lighthearted manner. Even so justice
has to be done in accordance with law. 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 conviction is under section 16(1)(a)(i)
for selling an adulterated article coming within the defini-
tion of section 2(i)(1), the
520
Magistrate, by recording adequate and special reasons, has
jurisdiction to award a sentence less than the minimum. In
an appeal under section 377 Cr.P.C. the High, Court may
interfere with the sentence if no reasons for awarding a
lesser sentence are recorded by the Magistrate Again, if the
reasons recorded by the Magistrate are irrelevant, extrane-
ous, without materials and grossly inadequate, the High
Court will’ be justified in enhancing the sentence.
While dealing with the question of sentence the Magis-
trate noted that the appellant was a small retail shopkeeper
who had only 3 kgs. of chilli powder in his shop for sale
out of which 450 gms. were purchased by the Food Inspector.
He also considered the nature of the offence as disclosed in
the report of the Public Analyst. There is nothing in the
evidence to show that any injurious ingredient to health was
mixed with the article. We find that the Magistrate had
the jurisdiction under the first proviso to section 16(1) to
award less than the minimum sentence in this case by record-
ing adequate and special reasons. We are unable to hold
that the reasons given by the Magistrate are so grossly
inadequate that the High Court was right in interfering with
the sentence in 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 a disquieting feature in the
procedure adopted by the learned single Judge (G. N. Vaidya,
J. ) in disposing of the appeal. The learned Judge ignored
the decision of another single Judge of the same court (J.
M. Gandhi, J.) who had earlier held m a 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, howev-
er, cannot be sufficient reason for the learned Judge to
ignore it and observe that it is "unnecessary to keep back
this matter till the Supreme Court decides matter". When
there was a decision of a coordinate court, it was open to
the learned Judge to differ from it but in that case the
only judicial alternative was to refer it to a larger bench
and not to dispose of the appeal by taking a contrary view.
Judicial discipline as well as decorum should suggest that
as the only course.
In the result the appeal is allowed and the judgment and
order of the High Court are set aside. The appellant shall
be discharged from his bail bond.
S.R. Appeal allowed.
521