* Author
[2024] 3 S.C.R. 356 : 2024 INSC 186
M/s A.K. Sarkar & Co. & Anr.
v.
The State of West Bengal & Ors.
(Criminal Appeal No. 1447 of 2024)
07 March 2024
[Sudhanshu Dhulia* and Prasanna B. Varale, JJ.]
Issue for Consideration
The Prevention of Food Adulteration Act, 1954 was repealed by
the Food Safety and Standards Act, 2006 wherein s. 52 provides
a maximum penalty of Rs.3,00,000/- for misbranded food. The
issue arose whether the appellant can be granted the benefit of
the new legislation-2006 Act and be awarded a lesser punishment
as is presently prescribed under the new law, though it was not in
force when the offence was committed.
Headnotes
Prevention of Food Adulteration Act, 1954 – ss. 16(1)(a)(i) read
with s.7, s. 2(ix)(k) – Prevention of Food Adulteration Rules, 1955
– r. 32(c) and (f) – Misbranding food – Case registered against
appellants that the packets of sugar boiled confectionary sold
by them at their shop/godown did not show the prescribed
particulars of complete address of the manufacturer and
the date of manufacturing, thus violation of r. 32(c) and (f) –
Conviction of appellant no.1, its partners-appellant no.2 and
third accused u/s. 16(1)(a)(i) read with s. 7 – Appellant no.2
and third accused sentenced to undergo simple imprisonment
for 6 months along with a fine of Rs.1,000/- each, whereas
appellant no.1 directed to pay a fine of Rs.2,000/- – District and
Sessions Judge upheld the order as regards appellant no.1 and
appellant no.2, however set aside the conviction of the third
accused – High Court though upheld the concurrent findings
of conviction but reduced the sentence of appellant no.2 from
6 months to 3 months simple imprisonment – Correctness:
Held: Concurrent findings of the courts below, and no question of
doubt as to the findings that the packets which were taken from shop/
godown of the appellants were misbranded as defined u/s. 2(ix)
(k), as they were not labelled in accordance with the requirements
of the Act or the Rules made thereunder – As regards sentencing,
[2024] 3 S.C.R. 357
M/s A.K. Sarkar & Co. & Anr. v. The State of West Bengal & Ors
the prohibition contained in Art. 20 is on subjecting a person to a
higher punishment than which was applicable for that crime at the
time of the commission of the crime but there is no prohibition, to
impose a lesser punishment which is now applicable for the same
crime – Appellant no. 2, is about 60 years of age and twenty-four
years have elapsed since the commission of the crime – Though
the findings of the courts below regarding the offence is upheld,
however, the sentence of appellant no.2 converted from 3 months
simple imprisonment along with fine of Rs.1,000/- to a fine of
Rs.50,000/- – Sentence of appellant no.1 of Rs. 2000/- upheld –
Constitution of India – Art. 20(1). [Paras 6,7, 10]
Constitution of India – Art. 20(1) – Protection in respect of
conviction for offences – Mandate of Art. 20(1):
Held: Person cannot be punished for an offence which was not an
offence at the time it was committed, nor can he be subjected to a
sentence which is greater than the sentence which was applicable
at the relevant point of time – Art. 20 (1) does not prohibit this Court,
to award a lesser punishment in a befitting case, when this Court
is of the opinion that a lesser punishment may be awarded since
the new law on the penal provision provides a lesser punishment
i.e. lesser than what was actually applicable at the relevant time
– Prohibition contained in Art. 20 is on subjecting a person to a
higher punishment than which was applicable for that crime at the
time of the commission of the crime – There is no prohibition, for
this Court to impose a lesser punishment which is now applicable
for the same crime. [Para 8]
Case Law Cited
T. Barai v. Henry Ah Hoe, [1983] 1 SCR 905 : (1983) 1
SCC 177; Nemi Chand v. State of Rajasthan, (2018) 17
SCC 448; Trilok Chand v. State of Himachal Pradesh,
(2020) 10 SCC 763 – referred to.
List of Acts
Prevention of Food Adulteration Act, 1954; Food Safety and
Standards Act, 2006
List of Keywords
Prevention of Food Adulteration; Food Safety and Standards;
Misbranded food; Benefit of the new legislation; Lesser punishment;
Higher punishment.
358 [2024] 3 S.C.R.
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Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1447
of 2024
From the Judgment and Order dated 12.04.2018 of the High Court
at Calcutta in CRR No. 1436 of 2005
Appearances for Parties
Ms. Nandini Sen Mukherjee, Adv. for the Appellants.
Ms. Mantika Haryani, Ms. Ripul Swati Kumari, Ms. Astha Sharma,
Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Ms. Kshitij
Singh, Sohhom Sau, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sudhanshu Dhulia, J.
Leave granted.
2. The present appeal arises out of a proceeding under the Prevention
of Food Adulteration Act, 1954 (for short ‘the Act’) where the present
appellant no.1, its partners appellant no.2 and Amit Kumar Sarkar,
were charged under Section 16(1)(a)(i) read with Section 7 of the
Act and were convicted by the Trial court. Appellant no.2 and Amit
Kumar Sarkar were sentenced to undergo simple imprisonment for
a period of six months along with a fine of Rs.1,000/- each, whereas
appellant no.1 was directed to pay a fine of Rs.2,000/-.
3. The appeal of the appellants against the order of conviction and
sentence by the Trial Court was dismissed by the District and
Sessions Judge but the conviction of Amit Kumar Sarkar, the third
accused in the case, was set aside and he was acquitted. In Revision
proceedings, the High Court of Calcutta though upheld the concurrent
findings of conviction but reduced the sentence of appellant no.2
from 6 months to 3 months simple imprisonment.
4. Brief facts leading to this appeal are that on 06.12.2000, a food
inspector while inspecting the shop/godown of the appellants at 71,
Biplabi Rash Behari Basu Road, Calcutta took samples of some
sugar boiled confectionaries, which were kept for sale and for human
consumption. After payment, the food inspector purchased 1500 grams
[2024] 3 S.C.R. 359
M/s A.K. Sarkar & Co. & Anr. v. The State of West Bengal & Ors
of sugar boiled confectionery contained in three packets of 500 grams
each, and as per due process sent the samples for examination in a
laboratory. The public analysis/Lab report shows that the food articles
were not adulterated, but it said that the packets did not show the
prescribed particulars such as complete address of the manufacturer
and the date of manufacturing. Thus, there was violation of Rule 32(c)
and (f) of the Prevention of Food Adulteration Rules, 1955 (for short
‘Rules’). In view of these findings, the inspector filed a complaint before
the Trial Court under Section 16(1)(a)(i) read with Section 7 of the Act.
5. The plea of the appellants before the Trial Court was that they had
not manufactured the food articles, instead Bose Confectionary,
Calcutta had manufactured these items. All the same, the appellants
could not show any valid proof of their contention and thus, the Trial
Court and the Appellate Court (as well as the Revisional Court) did
not accept this contention raised by the appellants. The appellant
stood convicted of the offence under Section 16(1)(a)(i) read with
Section 7 of the Act and appellant no.2 was sentenced to undergo
3 months simple imprisonment along with fine. While appellant no.1
was sentenced to pay a fine of Rs.2,000/-.
6. Before this Court, learned Counsel for the appellants would argue
that the entire case of the prosecution is liable to be dismissed for
the simple reason that the appellants were charged under Rule 32
(c) and (f) of the Rules but these provisions were not related to
misbranding and were regarding something else.
7. All the same, this contention is totally misconceived inasmuch on the
date of occurrence i.e., 06.12.2000 when the samples were taken, the
provisions which were applicable were Rule 32 (c) and (f) only (as
the Rules had been amended vide G.S.R 422(E) dated 29.04.1987),
and Rule 32 as per the Gazette Notification reads as under :-
“32. Package of food to carry a label: --
(a) …………
(b) …………
(c) The name and complete address of the manufacturer
or importer or vendor or packer.
(d) ………..
(e) ………..
360 [2024] 3 S.C.R.
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(f) The month and year in which the commodity is
manufactured or prepacked.”
Therefore, this contention of the learned counsel for the appellant
regarding non-applicability of the provision is not correct. There are
concurrent findings of three Courts below and there is absolutely
no question of us having any measure of doubt as to the findings,
inasmuch as that the packets which were taken from shop/godown
of the appellants were misbranded as defined under Section 2(ix)
(k) of the Act, as they were not labelled in accordance with the
requirements of the Act or the Rules made thereunder. The only
question which now remains is of sentence. The plea here is of
reduction of sentence and if only fine can be imposed, which is
permissible as per the law currently applicable.
8. Article 20(1) of the Constitution of India reads as under:
“(1) No person shall be convicted of any offence except
for violation of a law in force at the time of the commission
of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted
under the law in force at the time of the commission of
the offence.
(2) ……….
(3) ……….”
The above provision has been interpretated several times by this
Court and broadly the mandate here is that a person cannot be
punished for an offence which was not an offence at the time it was
committed, nor can he be subjected to a sentence which is greater
than the sentence which was applicable at the relevant point of
time. All the same, the above provision does not prohibit this Court,
to award a lesser punishment in a befitting case, when this Court
is of the opinion that a lesser punishment may be awarded since
the new law on the penal provision provides a lesser punishment
i.e. lesser than what was actually applicable at the relevant time.
The prohibition contained in Article 20 of the Constitution of India
is on subjecting a person to a higher punishment than which was
applicable for that crime at the time of the commission of the crime.
There is no prohibition, for this Court to impose a lesser punishment
which is now applicable for the same crime.
[2024] 3 S.C.R. 361
M/s A.K. Sarkar & Co. & Anr. v. The State of West Bengal & Ors
9. The Prevention of Food Adulteration Act, 1954 was repealed
by the introduction of the Food Safety and Standards Act, 2006
where Section 52 provides a maximum penalty of Rs.3,00,000/- for
misbranded food. There is no provision for imprisonment.
The provision, which is presently applicable, is as follows :
“52. Penalty for misbranded food. (1) Any person who
whether by himself or by any other person on his behalf
manufactures for sale or stores or sells or distributes or
imports any article of food for human consumption which is
misbranded, shall be liable to a penalty which may extend
to three lakh rupees. (2) The Adjudicating Officer may
issue a direction to the person found guilty of an offence
under this section, for taking corrective action to rectify
the mistake or such article of food shall be destroyed.”
Whether the appellant can be granted the benefit of the new legislation
and be awarded a lesser punishment as is presently prescribed under
the new law? This Court in T. Barai v. Henry Ah Hoe (1983) 1 SCC
177, had held that when an amendment is beneficial to the accused
it can be applied even to cases pending in Courts where such a
provision did not exist at the time of the commission of offence. It
was said as under:-
“22. It is only retroactive criminal legislation that is prohibited
under Article 20(1). The prohibition contained in Article
20(1) is that no person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of the act charged as an offence prohibits
nor shall he be subjected to a penalty greater than that
which might have been inflicted under the law in force at
the time of the commission of the offence. It is quite clear
that insofar as the Central Amendment Act creates new
offences or enhances punishment for a particular type
of offence no person can be convicted by such ex post
facto law nor can the enhanced punishment prescribed by
the amendment be applicable. But insofar as the Central
Amendment Act reduces the punishment for an offence
punishable under Section 16(1)(a) of the Act, there is no
reason why the accused should not have the benefit of such
reduced punishment. The rule of beneficial construction
362 [2024] 3 S.C.R.
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requires that even ex post facto law of such a type should
be applied to mitigate the rigour of the law. The principle
is based both on sound reason and common sense.”
A reference to the above case was given by this Court in Nemi
Chand v. State of Rajasthan (2018) 17 SCC 448 where six months
of imprisonment awarded under the Act was modified to only a fine
of Rs.50,000/-.
The above principle was applied by this Court again in Trilok Chand
v. State of Himachal Pradesh, (2020) 10 SCC 763 and the sentence
of three months of imprisonment and Rs.500/- of fine for misbranding
under the Act, 1954 was modified to that of only a fine of Rs.5,000/-.
10. The present appellant no.2, at this stage, is about 60 years of
age and the crime itself is of the year 2000, and twenty-four years
have elapsed since the commission of the crime. Vide Order dated
06.08.2018, this Court had granted exemption from surrendering
to appellant no.2. Considering all aspects, more particularly the
nature of offence, though we uphold the findings of the Courts below
regarding the offence, but we hereby convert the sentence of appellant
no.2 from three months of simple imprisonment along with fine of
Rs.1,000/- to a fine of Rs.50,000/- (Rupees Fifty Thousand only).
The sentence of appellant no.1 which is for a fine of Rs. 2000/- is
upheld. The amount shall be deposited with the concerned Court
within a period of three weeks from today. Accordingly, the appeal
is partly allowed.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal partly allowed.
