CIVIL APPEAL 1702 of 2009 on 8 October 2009

ORDER:

jhe Criminal Revision Case has been preferred under Sections 397 and401of the Codeof Criminal Procedure,1973(for brevity‘theCr.P.C’)challenging the judgment dated 08.10.2009 in Crl.A.Nos.223 of 2008 on thefileofthelearnedIIIAdditionalSessionsJudge(FastTrackCourt),Bhimavaram, West Godavari district, confirming the conviction and sentencefor the offence punishable under Section 8(b)(1)of[the][ Andhra]PradeshProhibition Act, 1995 (for brevity ‘the Act’) imposed by the learnedII AdditionalJudicialFirst Class Magistrate, Bhimavaram, sentencing thepetitionerforRigorous Imprisonment for six months and a fine for an amount of Rs.5,000/-vide judgement dated 13.10.2008 in C.C.No.335 of 2007.

2. I have heard the arguments of the learned counsel for the petitionersand the learned Assistant Public Prosecutor.

3. SriK.L.N.Swamy,thelearnedcounselforthepetitioners,whilereiterating the grounds of the revision, argued that[the][ learned][ Courts][ below]erred in convicting and sentencing the petitioner, even though she had notcommitted any offence, as P.W.1 and 2 didnot support[the][ case]of theprosecution,andthusEx.P1cannotbesaidtohavebeenproved;noindependent witnesses were examined: the Investigating[Officers][ evidence]is not acceptable: and it is urged to allow the criminal[revision][ case.]

4. Alternatively,it is submitted that the petitioner was in jail for 13 days.Thepetitioner’srightto speedy disposalof the criminal reyision caseasThepetitioner’srightto speedy disposalof the criminal reyision caseas

guaranteed by Article 21 of the Constitution of India[is][ infringed][ and][ urged][ to]impose the sentence of imprisonment to which she had[already][ undergone,]while volunteering that an amount of Rs.5,000/- (Rupees[Five][ Thousand][ Only)]may additionally be imposed as a measure of penance[and][ urged][ to][ dispose]of the revision case.

5. Per contra, Ms.P. Akila Naidu, learned Assistant Public[Prosecutor]vehemently argued that the prosecution had proved the[guilt][ of][ the][ petitioner]beyondall reasonable doubt for the charge framed against[Petitioner;][ the]learned Trial Court rightly appreciated the evidence[of][ the][ witnesses][ of][ the]prosecution andthe documentsfiledby the prosecutionandfoundthepetitioner guilty; the learned Appellate Court also[having][ gone][ through][ the]evidence of the prosecution witnesses and the judgment[of][ the][ learned][ Trial]Court rightly passed the judgment confirming the conviction[for][ the][ offence]charged and urged to dismiss the revision case as there[are][ no]materialirregularities and misreading of the evidence.vehemently argued that the prosecution had proved the[guilt][ of][ the][ petitioner]beyondall reasonable doubt for the charge framed against[Petitioner;][ the]learned Trial Court rightly appreciated the evidence[of][ the][ witnesses][ of][ the]prosecution andthe documentsfiledby the prosecutionandfoundthepetitioner guilty; the learned Appellate Court also[having][ gone][ through][ the]evidence of the prosecution witnesses and the judgment[of][ the][ learned][ Trial]Court rightly passed the judgment confirming the conviction[for][ the][ offence]charged and urged to dismiss the revision case as there[are][ no]materialirregularities and misreading of the evidence.

6. Thoughtful consideration is bestowed on the arguments[advanced][ by]thelearnedcounselfor thePetitioner andthelearnedAssistantPublicProsecutor.I have perused the record.

7. Now the point for consideration is;

“Whether the judgment in Crl.A.No.223of 2008 dated[08.10.2009]passed by the learnedlll Additional Sessions Judge[(Fast][ Track]Court),Bhimavaram, West Godavari district, is correct,[legal,][ and]proper with respect to its finding, sentence, or Judgment,[and]there are any material irregularities? And to what[relief?”]

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8. Itis apposite to refer to the judgment of the Hon’ble Apex Courtin Bindeshwari Prasad Singh v State of Bihar^ wherein at Paragraph Nos. 12

& 13 it is held as under:

“12. ...It is neither possible nor advisable to make an exhaustivelist of circumstances in which exercise of revisional jurisdictionmay be justified, but decisions of this Court have laid down theparameters of exercise of revisional jurisdiction by the High Courtunder Section 401of the Codeof Criminal Procedureinanappeal against acquittal by a private party.13. ...In the absence of any legal infirmity either in the procedureor in the conduct of the trial, there was no justification for theHigh Court to interfere in the exercise of its revisional jurisdiction.■It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trialCourt.In the absence of manifest illegality resultingin gravemiscarriage of justice, exercise of revisional jurisdiction in suchcases is not warranted. ”

9. The Hon’ble Supreme Court in D Stephens v Nosibolla^ at Paragraph No. 10 held as under:

“The revisional jurisdiction conferred on the High[Court][ under][ S.]439, Cr.P.C., is not to be lightly exercised, when it is invoked bya private complainant against an order of acquittal, against whichtheGovt, has noright of appeal under S.417.It could[be]exercised only in exceptional cases where the interests of publicjusticerequireinterferencefor thecorrectionofamanifestillegality, or the prevention of a gross miscarriage ofjustice. Thisjurisdiction is not ordinarily invoked or used merely[because][ the]lower court has taken a wrong view of the law or mis-appreciatedthe evidence on record. ’’

10. This Court, while exercising its jurisdiction under[ 397][ read][ with]

Section 401 of ‘the Cr.P.C.,’ cannot invoke its revisional power as a Second Appellate Court and re-appreciation of evidence is not possible in the revision

case aslaid downin the decisionsin Bindeshwari Prasad Singh and DStephens.

11. It is the case of the prosecution that on 09.02.2006 at about 1:15 p.m onreceiptof credibleinformation,theProhibitionandExerciseOfficialshadreached to the house of the petitioner, found mica bag containing 150 sachetseach contains with 100 ML of I.D.Arrakin total 15 litres,[seized][ the][ contraband]under the cover of mediators report, arrested the petitioner[and][ forwarded][ to]the Magistrate for judicial remand, the samples were[collected][ and][ forwarded]to the chemical analyst for report.' Charge sheet waslaidfor the offencepunishable under Section 7A.r/w 8(e) of ‘the Act’, on receipt of chemicalanalyst report which certified that the samples containingillicit distilled liquorinjurious to health.

12. The learned Trial Court examined P.Ws.1 to 4, marked[Exs.P1][ to][ 9][ and]M.O.No.1. P.W.1 and 2 though not supported the case of the prosecution, theyadmittedtheirsignaturesonEx.PI.P.W.3supportedthecaseoftheprosecution.Ex.PS andEx.P4samplebottles andEx.P6letterofadvicecoupled with Ex.P7 chemical analyst report reveal that[the][ seized][ contraband]wasillicit liquor injurious to health. Ex.PS reveals[that][ the][ contraband][ was]subjectedto destruction throughproper channel.M.O.No.1sample arrackbottle reveals that it was injurious illicit liquor. P.W.4 also supported the caseof the prosecution. Even though P.W.1 and P.W.2 did not support the case ofthe prosecution, the evidence given by P.Ws.3 and 4 inspiring the confidenceof the learned Trial Court, that is reason why, the learned Jrial Court convictedM.O.No.1. P.W.1 and 2 though not supported the case of the prosecution, theyadmittedtheirsignaturesonEx.PI.P.W.3supportedthecaseoftheprosecution.Ex.PS andEx.P4samplebottles andEx.P6letterofadvicecoupled with Ex.P7 chemical analyst report reveal that[the][ seized][ contraband]wasillicit liquor injurious to health. Ex.PS reveals[that][ the][ contraband][ was]subjectedto destruction throughproper channel.M.O.No.1sample arrackbottle reveals that it was injurious illicit liquor. P.W.4 also supported the caseof the prosecution. Even though P.W.1 and P.W.2 did not support the case ofthe prosecution, the evidence given by P.Ws.3 and 4 inspiring the confidenceof the learned Trial Court, that is reason why, the learned Jrial Court convicted ■Dr.YLR, JCrl.R.C.No.l702 of 2009Dated 10.04.2025

and sentenced the petitioner[[as]]

[[as]]per the charge. The learned Appellate Courtalso confirmed the same. There is no misreading of the e\/idence and materialirregularity.Thereisnoflagrantmiscarriageof justice.Therefore,theconvictionfor the offence under Section8(b)(1)of‘theAct.,’shallbemaintained.also confirmed the same. There is no misreading of the e\/idence and materialirregularity.Thereisnoflagrantmiscarriageof justice.Therefore,theconvictionfor the offence under Section8(b)(1)of‘theAct.,’shallbemaintained.

13. In Santhosh Kumar V. Municipal Corporation^ the Hon’ble ApexCourt while referring judgment in N. Sumumaran Nair v. Food InspectorMavehkara^ commuted the sentence under Clause (d) of Section433 of ‘theCr.P.C., and imposed Rs. 10,000/- as fine in commutation of the sentence of 6months imprisonment. V. Municipal Corporation^ the Hon’ble ApexCourt while referring judgment in N. Sumumaran Nair v. Food InspectorMavehkara^ commuted the sentence under Clause (d) of Section433 of ‘theCr.P.C., and imposed Rs. 10,000/- as fine in commutation of the sentence of 6months imprisonment.

15. The Hon ble Apex Court in Santhosh Kumar supra at paragraph[Nos.5]

& 6 held as under;

“5. This case seems to be almost on a parallel withthefactsenumerated in the decision cited above. We are also persuaded toextend the same benefit which the appellant in the aforesaid decisionwas granted by this Court, as this would be an appropriate[case][ for]commutation of sentence under clause (d) of Section 433 of the Codeof Criminal Procedure.6. We, therefore, direct the appellant to deposit in the trial court a sumof Rs. 10,000 as fine in commutation of the sentence of 6 months'imprisonment within a period of 6 weeks from today and intimate to the'appropriate Government that suchfine has been deposited.Ondeposit of the fine the State Government may formalise the matter bypassing appropriate order under clause (d) of Section 433 of the Codeof Criminal Procedure. In the meanwhile the appellant[will]remain onbail. ”

16. The Hon’ble Apex Court in N. Sumumaran Nair supra at paragraph Nos.2 & 3 held as follows;

“2. It has vehemently been urged by Mr V.A. Bobde,[learned][ Senior]Counsel that compliance of Rule 18 was mandatory and[since][ there]M/as aninfractionintheinstant case,theview of[the]trial courtdeserves to prevail. We fail to see how there is violation[of][ the][ said]Rule. The Food Inspector as PW 1 was categoric that[he][ had][ sent][ the]specimen impression of the seal separately tothe Public[Analyst]under sealed cover.It is true that he did not adduce[in][ evidence][ the]postal receipt vide which the specimen impression of[the][ seal][ M/as]sent separately.The Food Inspector could be dubbed[wrong][ if][ his]statement had been challenged In cross-examination.[As][ is][ obvious,]the Food Inspector deposed to the observance of the[requirement][ of]Rule 18 but, at best, can be said not to have introduced[corroborative]evidence to his word. But,if the word of the Food Inspector is notchallenged in cross-examination and is otherwise found[corroborated]from the report of the Public Analyst wherein the necessary[recitals,]even though in printed form,are available, compliance[of][ Rule]18becomes obvious.Suchreport by the Public Analystisexfacieevidence. There are methods to challenge the same which[were][ not]resorted to. We are, thus, of the view that the High Court was justifiedin upsetting the order of acquittal on the aforesaid[ground.]3. The offence took place in the year 1984. The appellant[has][ been]awarded six months' simple imprisonment and has also[been][ ordered]to pay a fine of Rs 1000. Under clause (d) of Section[433][ of the][ Code]of Criminal Procedure,‘‘the appropriate government” is empowered tocommute the sentence of simple imprisonment for fine.[We][ think][ that]this would be an appropriate case for commutation of[sentence][ where]almost a decade has gone by. We, therefore, direct[the][ appellant][ to]deposit in the trial court a sum of Rs 6000 as fine[in][ commutation][ of]the sentence of six months' simple imprisonment within a period of sixweeks from today and intimate to the appropriate Government[that]suchfine has been deposited. On deposit of suchfine,theStateGovernment may formalise the matter by passing appropriate[orders]under clause (d) of Section 433 of the Code of Criminal[Procedure.”]

15. However,alearnedSingleJudgeofthisCourtinGuthulaRamakrishna v. State of A.P^, while dismissing the[criminal]revision caseheld that the minimum sentence provided by law cannot be reduced further^by quoting the judgments of the Hon’ble Apex Court[in][ State of][ MP][ v.][ Vikram]Das® and Meera v. State of Tamil Nadu^ whereinitis held that merely Dr.YLRJCrI.R.C.No.1702 of 2009Dated 10.04.2025

because long time has passedin concluding the trial and/or deciding theappeal by the High Court, is noground not to impose the punishment and/or toimpose the sentence already undergone.

16. Whereas, another learned Single Judge of this Court in KesuboyinaKanakayya v. A.P® instead of awarding sentence of imprisonment[of]oneyear, a statutory minimum prescription, the accused therein was directed topay fine of Rs.5,000/-.Kanakayya v. A.P® instead of awarding sentence of imprisonment[of]oneyear, a statutory minimum prescription, the accused therein was directed topay fine of Rs.5,000/-.

17. Further, as per Section 11B of ‘the Act’ the offences are compoundableby Collector or any Officer of Prohibition and Excise specially empowered inthat behalf by ordering maximum fine which can be imposed[for][ the][ offence]under the provisions of ‘the Act.,’ by way of compensation[for][ the][ offence.] Theacceptance of compensation shall be deemed to amounting to acquittal.by Collector or any Officer of Prohibition and Excise specially empowered inthat behalf by ordering maximum fine which can be imposed[for][ the][ offence]under the provisions of ‘the Act.,’ by way of compensation[for][ the][ offence.] Theacceptance of compensation shall be deemed to amounting to acquittal.

18. TheHon’bleSupremeCourtinSanthoshsupracommutedthesentence of imprisonment of fine and sentenced thepetitioner thereintoundergo the imprisonment which he had already undergone, even thoughthere wasstatutoryprescriptionofimpositionof minimumsentenceofimprisonment.

18. Of course,in a different context relating totjiePreventionof FoodAdulteration Act, 1954 the Hon’ble Supreme Court in Braham Dass v. Stateof Himachal Pradesh®, in para-Nos. 5 & 6 held as under:

‘5.Coming to the question of sentence, we find that the appellanthad been acquitted by thetrial court and the HighCourtwhilehad been acquitted by thetrial court and the HighCourtwhile ® AIR 1988 see 1789

reversing the judgment of acquittal made by the appellate Judge hasnot make clear reference to clause(f). The occurrence[took][ place]about more than 8 years back. Records show that the appellant hasalready suffered a part of the imprisonment. We do[not][ find][ any]useful purpose would be served in sending the appellant[to][ jail][ at][ this]point of time for undergoing the remaining period of[the][ sentence,]thoughordinarilyinanantisocialoffencepunishableunder thePrevention of Food Adulteration Act the Court should[take][ strict][ view]of such matter.

6. Whiledismissingtheappeal,wewould,however,limitthesentenceof imprisonmenttotheperiod already undergoneandsustain, the fine along with the default sentence.”

19. TheHighCourtof Punjab andHaryanain DesRajv.Stateof Haryana^®, in para-Nos.8 & 9 held as under; “8. The respective arguments have been considered carefully.It Isnot disputed that the sample in question was taken[on 29-8-1987][ and]the prosecution vi/as launched against him on 9-10-1987.[After][ a][ long]and protracted trial, the petitioner was convicted and[ sentenced][ by]order dated November7,1992 which has been confirmed by theappellate Court by order dated November 17, 1995. In[other][ words.]thepetitionerhasbeenundergoingtheturmoilofacriminalprosecution for the last about eight years.9. Now,it is well settled that the right to speedy[and][ expeditious][ trial]is one of the most valuable and cherished rights guaranteed[under]the Constitution. Fundamental rights are not a teasing[illusion to][ be]mocked at. These are meant to be enforced and made a[ reality.][ Fair,]justandreasonableprocedureimplicitinArticle21oftheConstitution creates a right in the accused to be tried speedily. Rightto speedy trial is the right of the accused. The fact that a speedy[ trial]Is also in public interest or that It serves the social[interest][ also,][ does]not makeit anv-the-less the right of the accused. Right to speedytrial flowing from Article 21 encompasses all the stages,[namely][ the]stage of investigation, inguirv trial, appeal, revision[and][ retrial.][ This][ is]how the Courts shall understand this right and have goneto theextent of gnashing the prosecution after such inordinate[delay]inconcluding thetrial of an accused keepingin view[the]facts andcircumstancesofthecase.Keepingapersoninsuspendedanimation for 8 years or more without any case at all[cannot be][ with]thespirit of the procedureestablished by law.Itiscorrectthatalthoughminimumsentencetobeimposeduponaconvictisprescribed bv the statute vet keeping in view the provisions[of][ Article]21 of the Constitution of India and the interpretation thereof gua the

right of an accused to a speedy trial, judicial compassion can play arole and a convict can be compensated for the mental agony whichhe undergoes on account of protracted trial due to the fault of theprosecutionbythisCourtintheexerciseofitsextra-ordinaryjurisdiction.

20. The Hon’ble Apex Court in Haripapda Das v. State of West Bengal

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in para No.6 held as under:

“6.This appeal is directed against the conviction of the appellantunder Prevention of Food Adulteration Act for selling[adulterated]mustard oil. Although in the samples drawn by the Food Inspector,no impurity or objects injurious to health could be[detected][ but][ it][ was]found that the saponification value exceeded marginally[than]theprescribed limit and the B.R. reading also exceeded marginally thanthe prescribed limit. Considering the facts and circumstances of thecase and also considering that the aPDellant was released on bail bvthis Court long back and because of the protracted litigation up tothis Court he hasalso suffered alot of mental aoonv and alsofinancial hardship and also considering the fact that he had alreadyundergone imprisonment for more than three weeks, we feel that inthe facts of the case the ends of justice will be met if the sentence ofimprisonmentis reducedtotheperiodalready undergone.We.however, direct that besides the fine imposed bv the Courts below,the appellant will have to pay a fine Rs.5,000/- within four weeksfrom today, in default he will have to undergo imprisonment for threemonths. The appeals are disposed of accordingly.Thebail bondsstand discharged. ”

21. Inthe judgmentoftheHighCourtofRajasthanatJodhapurinSwaroopa Ramv. State of Rajasthanin CRL.R.P.No.115[of][ 2007][ dated]Swaroopa Ramv. State of Rajasthanin CRL.R.P.No.115[of][ 2007][ dated]

05.02.2025 at page No.9 it is held as under:

“9. This Court finds that the petitioner was a milk[vendor][ and][ there][ is]no reason available withit to disbelieve the report[of][ the]PublicAnalyst, wherein the sample of milk drawn from the petitioner wasfound to be Adulterated. However, in the opinion of this Court, sincethe Incident relates to the year 1997 and the petitioner has sufferedthe agony and trauma of protracted trial for about 27 years coupledwith the fact that the petitioner has spent some period in custody,itwill be just and proper if the sentence awarded to him bv the learnedtrial Court for the offence under section 7/16 of the Preventionof IG

Dr.YLR, JCrl.R.C.No.l702 of 2009■it*-Dated 10.04.2025■i0■-ff Food Adulteration Act,1954is reducedtotheperiodalreadyundergone bv him. ”

19.

19. The right to speedy trial is a fundamental right as per the decisionof theHon’ble Supreme Court in HussainaraKhatoon (IV) v. Home Secretary State of12Hon’ble Supreme Court in HussainaraKhatoon (IV) v. Home Secretary State of12BiharThis right includes speedy disposal of appeals. In addition to the appeals,the right to a speedy trial also includes criminal revisions as per the decision of theHon’ble Apex Courtin Rajdeo Sharmav. State of Bihar^^ The petitioneris afemale aged now about 58 years. The petitioner was in incarceration for a period of13 days. She has been suffering fromill health due to post-covid complications toher lungs.the right to a speedy trial also includes criminal revisions as per the decision of theHon’ble Apex Courtin Rajdeo Sharmav. State of Bihar^^ The petitioneris afemale aged now about 58 years. The petitioner was in incarceration for a period of13 days. She has been suffering fromill health due to post-covid complications toher lungs.

20. For the above reasons, in view of the law laid down by the Hon’ble ApexCourt in Braham Dass and Haripapda Das supra that in appropriate caseseven though minimum sentence is prescribed by the statute, this Court at thisrevisional stage, can pass sentence proportionate to the gravity of thecase. by the Hon’ble ApexCourt in Braham Dass and Haripapda Das supra that in appropriate caseseven though minimum sentence is prescribed by the statute, this Court at thisrevisional stage, can pass sentence proportionate to the gravity of thecase.21.Thusin view of peculiar facts and circumstances of the case,thiscriminal revision case is disposed of confirming the conviction for the offenceunder Section 7A r/w 8(e) of ‘the Act.,’ sentencing the petitioner to sufferimprisonment to which petitioner had already undergone, while imposinganadditional amount towards fine for Rs.5,000/- on the petitioner excluding thefine amount paid by petitioner pursuant to the judgmentofthelearnedAppellate and Trial Courts.criminal revision case is disposed of confirming the conviction for the offenceunder Section 7A r/w 8(e) of ‘the Act.,’ sentencing the petitioner to sufferimprisonment to which petitioner had already undergone, while imposinganadditional amount towards fine for Rs.5,000/- on the petitioner excluding thefine amount paid by petitioner pursuant to the judgmentofthelearnedAppellate and Trial Courts.

21. Thepetitionershallpaytheadditionalfine amountofRs.5,000/-(Rupees Five Thousand Only) within two months from the date of the receipt(Rupees Five Thousand Only) within two months from the date of the receipt 12 Air 1979 SC 1360132000 (1) BUR 37

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of this order, failing which, the petitioner shall suffer three months rigorousimprisonment.

21. The learnedII Additional Judicial First Class Magistrate of Bhimavaram,West GodavariDistrictshalltakenecessary follow up steps,andreportcompliance to this Court. There shall be no order as to costs. As a sequel,interlocutory applications, if any pending, shall stand[closed.]/West GodavariDistrictshalltakenecessary follow up steps,andreportcompliance to this Court. There shall be no order as to costs. As a sequel,interlocutory applications, if any pending, shall stand[closed.]/

Sd/- K TATA RAODEPUTY REGISTRAR

//TRUE COPY//

SECT^^^FRCER

To,

1. The III Additional District & Sessions Judge (FTC), Bhimavaram (withrecords)records)

2. TheII Additional Judicial First Class Magistrate, Bhimavaram (withrecords)records)

3. The Station House Officer, Prohibition & Excise Station, Bhimavaram,West Godavari District.West Godavari District.

4. TheSuperintendent,CentralPrison,Rajahmundry,EastGodavariDistrict.District.

5. The Station House Officer, Jagampeta Police Station,[East][ Godavari]District.District.

6. One CC toSri. K L N Swamy Advocate [OPUC]

7. Two CCs to Public Prosecutor, High Court of Andhra Pradesh [OUT]

8. The Section Officer, Criminal Section, High Court[of][ Andhra][ Pradesh][ at]Amaravathi.Amaravathi.

9. Three CD Copies

PRsree

HIGH COURTDATED:10/04/2025

ORDER

CRLRC.No.1702 of 2009

DISPOSING THE CRL.R.C.