Holding

A conviction cannot be sustained when the magistrate’s assessment of the evidence is tainted by an admission of guilt made after the evidence, and the conviction and sentence must be set aside.

Summary

Ganeshlal Jashraj was charged under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 for selling adulterated turmeric powder to a food inspector. He pleaded not guilty, but after the prosecution evidence closed he was examined under section 313 of the CrPC and, via plea‑bargaining, submitted an application admitting guilt and seeking leniency. The magistrate convicted him and sentenced him to simple imprisonment till the court rose and a fine of Rs 300, which was below the statutory minimum of three months’ imprisonment prescribed by the Act. The Gujarat High Court, on suo motu revision, enhanced the sentence to three months’ simple imprisonment and increased the fine to Rs 500. The Supreme Court held that the magistrate’s conviction was vitiated because the admission of guilt, made after the evidence, improperly influenced the assessment of evidence; consequently the conviction and sentence were set aside and the matter remanded for fresh consideration without regard to the admission. The appeal was allowed.

Issues considered

Whether a conviction based on an admission of guilt made after the prosecution evidence, i.e., through plea‑bargaining, is vitiated under the Criminal Procedure Code.
Whether the magistrate could enhance the sentence to meet the statutory minimum despite the original sentence being below that minimum.
Whether the High Court could, suo motu, revise and enhance the sentence in a criminal revision proceeding.

Legislation cited

Code of Criminal Procedure, 1973s. 229, s. 235, s. 313
Prevention of Food Adulteration Act, 1954s. 16(1)(a)(i)

Subjects

plea bargainingadmission of guiltconvictionsentence enhancementstatutory minimumPrevention of Food Adulteration ActCriminal Procedure Coderevision jurisdictionfood adulterationsmall traders

Judgment

1114

GANESIL!\1AL JASHRAJ
v.
GOVT. OF GUJARAT ANP ANR.
October 30, 1979

• [P. N. BHAGWATI AND V. D. TULzAPURKAR, JJ.]
Sentence-Minimum sentence prescribed by Statute under the Prcve11tion of
Food Adulteration Act, 1954-Accused not pleading guilty under sec1fon 229'
of the Crl.P.C., but. does so in writing as a result of plea bargaining after his
examination under Section 313 Crl.P.C.-Magistrate not convicting on the plea
of guilt alone, but sentencing less than .the statutory minin1um~Whether the
c sen1ence is vitiated-Criminal Procedure Code Ss. 229, 235 r/w S. 16 of POFA,
1954.

The appellant was charged for an offence under section 16(a)(l) of the
Preventive of Food Adulteration Act, 1954, for selling adulterated turmeric
powder to Respondent No. 2, the Food Inspector in the employ of the State..
Even though the appellant pleaded not guilty to the offence charged against him
D and chose to be tried, after his examination under section 313 of the Criminal
Procedure Code, as a result of •'Plea Bargaining" he submitted an application
admitting his guilt and praying for leniency towards hin1 due to the fact that
hei was a poor man and his offence a first one, The Magistrate, thereupori made
an order convicting the appellant of the offence under section 16(a)(l) POFA,
1954, arid sentencing him to suffer simple imprisonment till the rising of. the
Court aod to pay a fine of Rs. 300/- or i~ default to suffer further rigorous
E imprisonment for one month.

The High Court, coming to know through ao· aoonymous application that
the appellant was let off lightly with one day's simple imprisonment in breach
of the mandatory requirement of the Act, in suo niotu exercise of its revisional.
jurisdiction issued show cause notice to the appellant for enhancing the sen-
I' tence and after hearing the appellant affirmed the conviction, ·but enhanced the
sentence to three months' simple imprisonment and also increased the fine tO
Rs. 500/-·

Allowing the appeal by special leave, the Court

JJELD : When there is an admission of guilt made by the accused as a· ·
result of "plea bargaining" or other\vise, the evaluation of the evidence by the..
G Court is likely to become a little superficial and perfunctory and the Court
may, be disposed to refer to the evidence not critically with. a view to assessing.
its. credibility, but mechanically as a matter of formality in support of the ad.mis-
sion of guilt. The entire approach of the Court to the assessment of the
evidence v,rould be likely to be different when thefe is an admission of guilt by
the accused. [1117 B-DJ
H In the instant case, it is true that the learned magistrate did not base his
order of conviction solely- on the admission of guilt made by the appellant, but
it is clear from his judgment that l1is conclusion "·as not unaffected by the
I
GANESHMAL v. GUJARAT (Bhagwati, !.) 1115

admission of guilt on th~ part of the appellant and in the circumstances, it ~
would not be right to sustain the convic)ion of the appellant. [1117 B-C]

[The Court, therefore, remanded the case to the Trial Court for further
steps from the· stage of examination under S. 313 of the Crl.P.C. The
Court also deprecated the manner in which the cases under POFA
are booked and investigated (for statistical purposes_) by the authorities
O.nd inJicated ceftain gui9e lines so that the true purpose of the pre-
vention of Food Adulteration Law be fulfilled and the great gap bet-
ween expectation and fulfilment in respect of welfare laws be bridged.]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 632
of 1979.
c
Appeal by Special Leave from the Judgment and Order dated 29 /
30-1-1979 of the Gujarat High Court iii Criminal Revision App\ica-·
Hon No .. 499 /78.
K. N. Bhatt for the Appellant.
M. N. Shroff for the Respondent. D
" The Order of the Conrt was delivered ·by
BHAGWATI, J. This appeal by special leave is directed against a
jUdgment of the Gnjarat High Court enhancing the sentence imposed
on the appellant by the Judicial Magistrate First Class, Jhagadia, for
an offence under se~tion 16(1) (a) (i) of the Prevention of Food E
Adulteration Act, 1954.
The appellant was charged before the learned Judicial Magistrate
for an offence under section 16(1) (a) (i) of the Act for selling adul-
terated tnrmeric powder to respondent No. 2 who was, at the mate-
rial time, a Food Inspector in the employ of the State. The appellant
F
pleaded not guilty to the offe,nce charged against him and a trial was
thereupon held by the "learned J urlicial Magistrate. The Prosecution
le<;! the evidence of respondent No. 2 and one Thakurbhai who was
one of the panch witnesses in whose presence the tnrmeric powder was
pnrchased by respondent No. 2 and the certificate of the Public
·-Analyst showing that ihe turmeric powder was adulterated was also G
tendered in evidence. The Prosecution closed its case and thereafter
the appellant was examined by the learned Judicial Magistrate nnder
section 313 of the Code of Criminal Procedure. On the same day,
presumably as a result of plea-bargaining to which the learned Judicial
Magistrate was also perhaps a party, the appellant submitted an appli-
cation admitting his guilt and praying that since he was a poor man R
and this was his first offence, leniency should be shown to him. The
learned Judicial Magistrate therenpon proceeded to make an order
1116 SUPREME COURT REPORTS (1980) 1 S.C.R.
il . convicting the appellant of the offence u/s 16(1) (a)(i) of the Act
and sentencing him to suffer simple imprisonment till the rising of the
Court and to pay a fine of Rs. 300/- or in default to suffer further
rigorous imprisonment for one morrth.

It appears that through an anonymous application the High Court
came to know that though the appellant was convicted of an offence
u/s 16(1) (a) (i) of the Act and there was a minimum sentence pres-
cribed for such offence, the learned Judicial Magistrate had let off
the appellant lightly with only one day's -simple imprisonment in
breach of the mandatory requirement of the Act. The High 'court
thereupon in suo motu exercise of its revisional jurisdiction issued a
notice to the appellant to show cause why the sentence imposed on
him should not be enhanced and the proceeding thus initiated was
treated as a criminal revision application_ The learned single Judge
before whom the criminal revision application came up for hearing took
the view th'!_t though the appellant had admitted his guilt by filing an
application after the closing of the prosecution evidence, the learned
0 Judicial Magistrate had not founded his order convicting the appellant
on the admission of guilt but he had considered the evidence led by
the Prosecution and come to the conclusion ou the basis of such evi-
dence that the appellant was guilty of the offence charged against him
and the conviction was, therefore, not vitiated, but so far as the seq~
tence was concerned, it was patently in breach of the requirement of
section 16(1) (a) (i) of the Act which provided for a minimum sen-
tence of imprisonment for three months and the learned single Judge,
therefore, enhanced the sentence to three months' simple imprisonment
and also increased the amount of the fine from Rs. 300/- to Rs. 500/-._
This decision of the High Court is assailed in the present appeal pre-
F ferred by the appellant after obtaining special leave from this Court.

The principal contention advanced on behalf of the appellant was
that though the learned Judicial Magistrate considered the evidence
led on behalf of the prosecution and did not act solely on the admis-
sion of guilt made by the appellant, his approach to the evidence was
coloured by the admission of guilt and since the admission of guilf--
was not made by the appellant at the stage of making his plea before
the commencement of the prosecution evidence, but only after the
prosecution evidence was closed and he had already been examined
under section 313 of the Code of Criminal Procedure, the conviction
was vitiated. Now, it is true that when the appellant was called upon
H to make his plea before the commencement of the prosecution evi-
dence, he pleaded not guilty in respect of the offence charged againsf
him and it was only after the prosecution evidence was closed and his'
GANESHMAL v. GUJARAT (Bhagwati, J.) 1117

examination under section 313 of the Code of Criminal Procedure was
completed that he admitted guilt presumably as a result of plea bar-
gaining.. The learned Judicial Magistrate was in the circumstances
not entitled to take into account the admission of guilt made by the
appellant in reaching his decision in regard to the conviction of the
appellant. The learned Judicial Magistrate, it is true, did not base his
order of conviction solely on the admission of guilt made by the B:
appellant, but it is clear from his judgment that his conclusion was
not unaffected by the admission of guilt on the part of the appellant.
There can be no doubt that when there is an admission of guilt made by
the accused as a result of plea bargaining or otherwise, the evaluation
of the evidence by the Court is likely to become a little superficial and
perfunctory and the Court may be disposed to refer to the evidence not c
critically with a view to assessing its credibility but mechanically as a
matter of formality in suport of the admission of guilt. The entire
approach of the Court to the assessment of the evidence would be
likely to be different when there is an admission of guilt by the accus-
ed. Here it is obvious that the approach of the learned Judicial
Magistrate was affected by the admission of guilt made by the appel-
lant and in the circumstances, it would not be right to sustain tlie con-
viction of the appellant.

We accordingly allow the appeal, set aside the order of the High
Court enhancing the sentence imposed on the appellant as also the
Order of the learned Judicial Magistrate convicting the appellant and
remand the case to the· learned Judicial Magistrate so that he may
•
proceed further from the stage of examination under section 313 of
the Code of Criminal Procedure and dispose of the case on the basis
of the evidence led on behalf of the prosecution and if the appellant
chooses to lead any evidence in defence, then after taking into account
such further evidence also and without in any manner being affected
or· infiuenced by the admission of guilt made by the appellant.

Before we part with this case, we must regretfully observe and this
was not disputed by the learned counsel appearing on behalf of the
State, that most of the cases of food adulteration which come to the G
-Courts are cases directed against small tradesmen such as grocers,
milk-vendors etc. It is common knowledge that these small tradesmen
purchase the food stuff sold by them from the wholesalers and some-
times even directly from the manufacturers and more often than not the
adulteration is made either by the wholesalers or by the manufacturers.
Ordinarily it is not the small retailers who adulterate the articles of B
food sold by them. Yet it is only the small retailers who are caught
by the food inspectors and the investigative machinery of the food
1118 SUPREME COURT REPORTS [1980] 1 s.c.R.

department does not for some curious and inexplicable reason tum its
attention to the wholesalers and manufacturers. The small tradesmen
who eke out a precarious existence living almost from hand to mouth·
are sent to jail for selling food stuff which is often enough not adul-
terated by them and the wholesalers and manufacturers who really'
adulterate the food stuff and fatten themselves on the misery of others
• escape. the arm of the law. The Food Inspection Department prides
itself on its statistics by catching small tradesmen and by its gross
indifference and inaction, allows wholesalers and manufacturers ((}
carry on their nefarious activities, untcuched and unaffected by the
penal law. The result is that a wrong impression is being created on
the public mind that the law is being properly enforced, whereas in
c fact what is really happening is that it is only the small tradesmen
who are quite often not themselves responsible for adulteration who
are caught and sent to jail while there is no effective enforcement of<
the law against the real adulterators. This is a failing which we notice
in the implementation of many of our laws. It is only the smaller'

• flies which get caught in the web of these laws while the bigger ones
escape. This syndrome of soft justice to big economic criminals and·
harsh justice to the humbler offenders is a systemic weakness which
affects the credibility of the rule of law itself. It is no wcmder that an
anonymous poet sardonically said while projecting the social dimen-
sion of this systemic deficiency :

• The law locks up both man and woman
Who steals the goose from off the common,
But lets the greater felon loose,
Who steals the common from the goose .

• We fail to see why at the time of taking samples from the small re-
tailer, the food inspectors do not care to find out from which whole-
saler or II)anufacturer he had purchased the particular food stuff and
after ascertaining the name of such wholesaler or manufacturer, pro-
ceed immediately to the place of business of such wholesaler or manu-
G facturer and take samples for the purpose of finding out whether the
food stuff which is being sold by· him is adulterated or not. The~
anxiety of the food inspectors seelllS to be only to catch hold of the
small tradesmen and not to proceed against the bigger wholesalers or
manuf~cturers who are quite often the real culprits. Otherwise. we
do not understand why there are so few cases against wholesalers and
H manufacturers brought to the C.ourts. The implementation of the law
does create an impression that it is a law meant to be operative only·
against the smaller men and that the rich and the weU-to-<lo are be- ·
GANESHMAL v. GUJARAT (Bhagwati, !.) 1119

yond its reach. Moreover the law operates very harshly against the
~mall tradesmen because a minimum sentence is provided and q1e
~mall tra~esmcn are liable to be sent to jail for three or six months
for selling food stuff which th·oy may not have themselves adulterated
:but which has been adulterated by others, particularly when they have
no means of verifying at the time of purchase whether the food stuff
is adulterated or not. It is no doubt true that there is a provision in
the Act that if a wa.rranty in writing is taken by the dealer from the
•
wholesaler or manufacturer from whom he has purchased the food stuff,
he would be exempt from criminal liability, but it is obvious that in a
poor country like ours where there are small tradesmen eking out a
miserabk existence from small daily sales and many of them are
igijprant about the provisions of the law and are moreover at the
c
mercy of the wholesalers and manufacturers, such a provision does
not afford any real protection to the small tradesmen and there may
tlei cases where they may have to go to jail for the sins of the whole-
salers ond manufacturers entailing untold hardship on their family. We
wo'uld, therefore, strongly urge upon the Food Inspection Department
not ..to remain content with paying homage to anti-adulteration law by
catching small tradesmen but direct the full fury of their investigative
machinery against the wholesalers and manufacturers who are in a
large majority of cases really responsible for adulteration of the food
stuff. which is being sold by the small retailers. Then only would the
true purpose of the Prevention of Food Adulteration law be fulfilled and E
the great gap between expectation and fulfilment in respect of welfare
law~ be bridged.

V.D.K. Appeal allowed.

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~ ..