Anand K. Tripathi, J. - (1.) HEARD learned counsel for the revisionist, learned A.G.A. and perused the record.
(2.) THE present criminal revision has been filed against the judgment and order dated 25.4.2005, passed by learned Sessions Judge, Ghazipur in Criminal Case No. 27/04, confirming the judgment and order dated 24.11.2004, passed by learned Additional Chief Judicial Magistrate, Ghazipur in Criminal Case No. 242/99 convicting the revisionist under Section 7/16, Prevention of Food Adulteration Act, 1954, 2. IA. (M.), 2 (I.J.A.), 7 (1) and 16 (1A) and sentence to six months rigorous imprisonment and further a fine of Rs. 1,000 was imposed in default of payment of fine he was to further undergo for two months simple imprisonment. The brief facts of the case is that on 23.7.1998 at about 3 p.m., Mr. Prabhakar Tiwari the then Food Inspector at Mardah bus stand found accused revisionist selling imarti at his shop. Since there was doubt of adulteration, hence 1 kg. imarti after payment of Rs. 40 in cash was purchased and in accordance with law the sample was kept in two containers, which was sealed, the label was pasted but accused revisionist refused to sign on the sample. Thereafter, sample was sent to Lucknow for chemical examination report and according to report of the Government Analyst, U. P. dated 15.1.1998 the sample was found adulterated. Thereafter, the sanction was obtained to prosecute the accused revisionist and after obtaining sanction the complaint was filed. The complainant Food Inspector was examined as P.W. 1 and one Dhirendra Singh, senior clerk of the office of the Chief Medical Office, Ghazipur was examined as P.W. 2. In evidence six receipts, sample sanction order of Chief Medical Officer etc. were placed before the trial court. After considering the evidence and after hearing the parties the learned Additional Chief Judicial Magistrate found that the prosecution has proved the case beyond reasonable doubt. The dispute was raised regarding the sheeshi (phial) and plastic container that there was contradiction in the complaint and in the statement, which was considered by the trial court and even the plastic container could be called as sheeshi (phial). Since the prosecution has proved the case beyond reasonable doubt, hence learned Additional Chief Judicial Magistrate convicted the accused revisionist for six months rigorous imprisonment and imposed a fine of Rs. 1,000 and in default of payment of the same, he was further to undergo for two months simple imprisonment by judgment and order dated 24.11.2004 against which appeal was preferred. The Court has also considered the argument and found that there was no violation of any provision including the provision of Section 11 of Prevention of Food Adulteration Act. The independent witnesses were not available and accused revisionist refused to sign on the sample purchased from his shop. In view of the aforesaid facts and circumstances, there was no violation of any provision. From perusal of judgment and order of the court below, it is clear that 1 kg. imarti was purchased by the Food Inspector after payment of Rs. 40 and sample was kept in different containers which were sealed and code slip issued by the Chief Medical Officer was pasted on the container, which was sent for medical examination report. Second sample was sent in the office of the Chief Medical Officer and third was sent to the Court. The independent witnesses were not available on the spot. Food Inspector and Dhirendra Singh, senior clerk of the office of C.M.O. were examined as P.W. 1 and P.W. 2. They have proved the prosecution case, corroborated with other documentary evidence. In view of the aforesaid facts and circumstances, there is no illegality in the order and no interference is required under revisional jurisdiction. However, matter is of the year 1998 and after a decade it will not be proper to send the revisionist behind the bar. Counsel for the revisionist submitted that the revisionist was taken into custody on 24.11.2004 when he was convicted and sentenced by the trial court. Thereafter, bail was granted by the lower appellate court on 17.12.2004 and when the appeal was rejected on 25.4.2005 the revisionist was taken into custody, thereafter, bail was granted by the High Court in the present revision on 6.5.2005. The revisionist was in custody for more than a month. Counsel for the revisionist requested to reduce the sentence already undergone.
(3.) UNDER Section 16 of the Prevention of Food Adulteration Act, 1954 while imposing penalty/ sentence the accused shall in addition to the penalty to which he might be liable under the provisions of Section 6, be punished with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. However, it has been provided in certain cases that after recording adequate and special reasons the sentence of imprisonment for a term which shall not be less than three months might be imposed. Hence, even the sentence in these cases should not be less than three months. In view of the above discussion, it is clear that offence was committed in the year 1998 and the revisionist was awarded six months rigorous imprisonment and further it was ordered to pay a fine of Rs. 1,000. The applicant remained in custody for more than a month. Hence, in view of the facts and circumstances, after more than a decade it will not be proper to send the revisionist behind the bar. Since minimum sentence is six months, and since there is no illegality in the judgment of the court below hence the "appropriate Government" has power to commute the sentence of imprisonment for fine under Section 433, Cr. P.C. Hence, in view of the judgment of the Apex Court in N. Sukumaran Nair v. Food Inspector, Malvelikara, 1997 SCC (Crl) 608. This is an appropriate case to be referred to the Government for commutation of the sentence. Therefore, the revisionist is directed to deposit before the trial court a sum of Rs. 2,000 as a fine for commutation of sentence of six months rigorous imprisonment, within a period of two months from today and will file application/representation before the State Government intimating that such fine has been deposited by him. The State Government may consider the matter for commutation of the remaining sentence for fine in exercise of power under Section 433, Cr. P.C.;