Present: Mr. K.D.S. Hooda Advocate Vs. State of Haryana - Court Judgment

SooperKanoon Citationsooperkanoon.com/1131213
CourtPunjab and Haryana High Court
Decided OnFeb-26-2014
AppellantPresent: Mr. K.D.S. Hooda Advocate
RespondentState of Haryana
Excerpt:
crr-1593-2006 (o&m) 1 in the high court of punjab and haryana at chandigarh crr-1593-2006 (o&m) date of decision: february 26, 2014 birender singh ...petitioner versus state of haryana ...respondent coram: hon'ble mr. justice naresh kumar sanghi present: mr. k.d.s. hooda, advocate, for the petitioner. mr. nitin kaushal, aag, haryana, for the respondent. naresh kumar sanghi, j.1. challenge in this criminal revision petition is to the judgment dated 25.7.2006, passed by the learned additional sessions judge, sonepat, whereby the appeal filed by the petitioner challenging his conviction and sentence dated 3.3.2006, for the offence punishable under section 7 read with section 16 of the prevention of food adulteration act, 1954 (for brevity, ‘the act’) recorded by the learned sub-divisional judicial magistrate, gohana, was dismissed.2. learned counsel for the petitioner at the very outset submits that in view of concurrent findings recorded by both the learned courts below, he does not want to challenge the kapoor prashant 2014.03.04 18:04 i attest to the accuracy of this order crr-1593-2006 (o&m) 2 conviction of the petitioner. however, he submits that in view of the statement recorded under section 313, cr.p.c., the petitioner was of 21 years of age as on 30.5.2003 and, thus, less than 18 years of age on the date of sampling i.e. 26.5.1999, and, as such, the provisions of section 20aa of the act would be applicable and the petitioner is entitled to be released on probation.3. learned counsel for the state has not controverted the factual aspect that in his statement recorded under section 313, cr.p.c., the petitioner has given his age to be 21 years, which was recorded about three years after the date of sampling and, as such, the petitioner was approximately 18 years of age on the date of sampling. however, he submits that the learned courts below have already taken a lenient view and awarded rigorous imprisonment of six months besides payment of fine of `1,000/-, therefore, there is no scope for further reduction of sentence in the present case.4. i have heard learned counsel for the parties and with their able assistance gone through the material available on record.5. though the learned counsel has proposed not to challenge the conviction of the petitioner-birender singh, but to satisfy the conscience of this court, the facts of the case have been re-appraised.6. brief facts of the case are that a sample of balushahi kapoor prashant 2014.03.04 18:04 i attest to the accuracy of this order crr-1593-2006 (o&m) 3 (a popular sweet of north india) was lifted from the petitioner on 26.5.1999 by mr. k.k. bhutani, the then government food inspector, which was ultimately found to be adulterated by adding ‘orange synthetic food colour’, whereas the same should have been free from colour. after receipt of the report from public analyst, haryana, a complaint was presented and the report was sent to the petitioner in terms of section 13(2) of the act. after appearance of the petitioner before the learned trial court, he was admitted to bail.7. after leading pre-charge evidence, the charge for the offence punishable under section 7 read with section 16 of the act was framed to which he pleaded not guilty and claimed trial. in after-charge evidence, mr. k.k. bhutani, the then food inspector appeared as pw-1, mr. vijay kumar appeared as pw-2 and dr. b.s. kadian appeared as pw-3. from the perusal of their testimony, it is very much clear that the petitioner was possessing adulterated balushahi for sale and, as such, he was rightly held guilty for the offence punishable under section 7 read with section 16 of the act. therefore, the learned counsel has rightly proposed not to challenge the conviction of the petitioner.8. however, there appears to be substance in the submission of the learned counsel that on 26.5.1999 when the sample was drawn, the petitioner was less than 18 years of age; he was not a previous convict and, as such, the provisions of kapoor prashant 2014.03.04 18:04 i attest to the accuracy of this order crr-1593-2006 (o&m) 4 section 20aa of the act would be squarely applicable to the case of the petitioner. section 20aa of the act reads as under:- “20aa. application of the probation of offenders act, 1958 and section 360 of the code of criminal procedure 1973. - nothing contained in the probation of offenders act, 1958 (20 of 1958) or section 360 of the code of criminal procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this act unless that person is under eighteen years of age.”. 9. from the perusal of the above provisions, it is very much clear that a person below the age of 18 years, if found guilty for the offence punishable under the provisions of the act, can be released on probation. in the present case, the sample was drawn in 1999. for the last about 15 years the petitioner is facing the agony of trial, appeal and revision. it has been stated by the learned counsel for the petitioner that during the said period, the petitioner lost his wife and young son and there is no other adult member in his family to look after his minor daughter aged about 8 years. he further contends that after lifting of the sample in 1999, the petitioner has also left the job of selling sweets etc. the petitioner is a first offender.10. in view of the totality of the facts and circumstances of the case, the substantive sentence awarded by the learned court below is kept in abeyance and the petitioner is ordered to be kapoor prashant 2014.03.04 18:04 i attest to the accuracy of this order crr-1593-2006 (o&m) 5 released on probation under section 4(1) of the probation of offenders act, 1958, on his entering into undertaking with the stipulation that he is required to maintain peace and be of good behaviour for a period of one year, and subject to his furnishing bond in the sum of `20,000/- with one surety in the like amount to the satisfaction of the learned trial court within two months of passing of this order. he will also furnish an affidavit to the effect that in case he violates the conditions of the bond to be furnished by him, in that eventuality he will undergo the remaining substantive sentence as and when called upon to do so by the court of competent jurisdiction during the aforesaid period of one year. the fine imposed by the learned trial court shall be treated as costs of the proceedings.11. with the above modifications in the order of sentence, the present criminal revision petition is partly allowed. (naresh kumar sanghi) february 26, 2014 judge pkapoor kapoor prashant 2014.03.04 18:04 i attest to the accuracy of this order
Judgment:

CRR-1593-2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR-1593-2006 (O&M) Date of Decision: February 26, 2014 Birender Singh ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI Present: Mr. K.D.S. Hooda, Advocate, for the petitioner. Mr. Nitin Kaushal, AAG, Haryana, for the respondent. NARESH KUMAR SANGHI, J.

1. Challenge in this criminal revision petition is to the judgment dated 25.7.2006, passed by the learned Additional Sessions Judge, Sonepat, whereby the appeal filed by the petitioner challenging his conviction and sentence dated 3.3.2006, for the offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (for brevity, ‘the Act’) recorded by the learned Sub-Divisional Judicial Magistrate, Gohana, was dismissed.

2. Learned counsel for the petitioner at the very outset submits that in view of concurrent findings recorded by both the learned Courts below, he does not want to challenge the Kapoor Prashant 2014.03.04 18:04 I attest to the accuracy of this order CRR-1593-2006 (O&M) 2 conviction of the petitioner. However, he submits that in view of the statement recorded under Section 313, Cr.P.C., the petitioner was of 21 years of age as on 30.5.2003 and, thus, less than 18 years of age on the date of sampling i.e. 26.5.1999, and, as such, the provisions of Section 20AA of the Act would be applicable and the petitioner is entitled to be released on probation.

3. Learned counsel for the State has not controverted the factual aspect that in his statement recorded under Section 313, Cr.P.C., the petitioner has given his age to be 21 years, which was recorded about three years after the date of sampling and, as such, the petitioner was approximately 18 years of age on the date of sampling. However, he submits that the learned Courts below have already taken a lenient view and awarded rigorous imprisonment of six months besides payment of fine of `1,000/-, therefore, there is no scope for further reduction of sentence in the present case.

4. I have heard learned counsel for the parties and with their able assistance gone through the material available on record.

5. Though the learned counsel has proposed not to challenge the conviction of the petitioner-Birender Singh, but to satisfy the conscience of this Court, the facts of the case have been re-appraised.

6. Brief facts of the case are that a sample of Balushahi Kapoor Prashant 2014.03.04 18:04 I attest to the accuracy of this order CRR-1593-2006 (O&M) 3 (a popular sweet of North India) was lifted from the petitioner on 26.5.1999 by Mr. K.K. Bhutani, the then Government Food Inspector, which was ultimately found to be adulterated by adding ‘orange synthetic food colour’, whereas the same should have been free from colour. After receipt of the report from Public Analyst, Haryana, a complaint was presented and the report was sent to the petitioner in terms of Section 13(2) of the Act. After appearance of the petitioner before the learned Trial Court, he was admitted to bail.

7. After leading pre-charge evidence, the charge for the offence punishable under Section 7 read with Section 16 of the Act was framed to which he pleaded not guilty and claimed trial. In after-charge evidence, Mr. K.K. Bhutani, the then Food Inspector appeared as PW-1, Mr. Vijay Kumar appeared as PW-2 and Dr. B.S. Kadian appeared as PW-3. From the perusal of their testimony, it is very much clear that the petitioner was possessing adulterated Balushahi for sale and, as such, he was rightly held guilty for the offence punishable under Section 7 read with Section 16 of the Act. Therefore, the learned counsel has rightly proposed not to challenge the conviction of the petitioner.

8. However, there appears to be substance in the submission of the learned counsel that on 26.5.1999 when the sample was drawn, the petitioner was less than 18 years of age; he was not a previous convict and, as such, the provisions of Kapoor Prashant 2014.03.04 18:04 I attest to the accuracy of this order CRR-1593-2006 (O&M) 4 Section 20AA of the Act would be squarely applicable to the case of the petitioner. Section 20AA of the Act reads as under:- “20AA. Application of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure 1973. - Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.”. 9. From the perusal of the above provisions, it is very much clear that a person below the age of 18 years, if found guilty for the offence punishable under the provisions of the Act, can be released on probation. In the present case, the sample was drawn in 1999. For the last about 15 years the petitioner is facing the agony of trial, appeal and revision. It has been stated by the learned counsel for the petitioner that during the said period, the petitioner lost his wife and young son and there is no other adult member in his family to look after his minor daughter aged about 8 years. He further contends that after lifting of the sample in 1999, the petitioner has also left the job of selling sweets etc. The petitioner is a first offender.

10. In view of the totality of the facts and circumstances of the case, the substantive sentence awarded by the learned Court below is kept in abeyance and the petitioner is ordered to be Kapoor Prashant 2014.03.04 18:04 I attest to the accuracy of this order CRR-1593-2006 (O&M) 5 released on probation under Section 4(1) of the Probation of Offenders Act, 1958, on his entering into undertaking with the stipulation that he is required to maintain peace and be of good behaviour for a period of one year, and subject to his furnishing bond in the sum of `20,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within two months of passing of this order. He will also furnish an affidavit to the effect that in case he violates the conditions of the bond to be furnished by him, in that eventuality he will undergo the remaining substantive sentence as and when called upon to do so by the Court of competent jurisdiction during the aforesaid period of one year. The fine imposed by the learned Trial Court shall be treated as costs of the proceedings.

11. With the above modifications in the order of sentence, the present criminal revision petition is partly allowed. (NARESH KUMAR SANGHI) February 26, 2014 JUDGE Pkapoor Kapoor Prashant 2014.03.04 18:04 I attest to the accuracy of this order