Arvind K.Tripathi - (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 18.8.1987, passed by Vth Additional Sessions Judge, Bareilly in Criminal Appeal No. 51/86 whereby the appeal was dismissed and sentence of the revisionist under Section 7/16 of the Prevention of Food Adulteration Act to undergo the rigorous imprisonment for six months and a fine of Rs. 1,000 awarded by Judicial Magistrate (Economic Offences), Bareilly by judgment and order dated 6.2.1986 in Case No. 331/83 was affirmed. The present revision was admitted on 21.8.1987, however, record was summoned on 2.12.2004 as per report received from the court below the record of criminal appeal as well as Criminal Case No. 331/83 had been weeded out. The brief fact of the case is that on 31.7.1982 at about 7 a.m. Food Inspector Hukdad Khan P.W. 1 found revisionist carrying 15 litres cow milk for sale in Mohalla Para within the municipal limits of town Faridpur, district Bareilly. He suspected milk to be adulterated, hence he gave him notice and purchased 675 ml. milk for sample after payment and according to prescribed rules the sample in phial was sealed and thumb impression of the revisionist was obtained. According to public analyst report the sample was found 57% deficient in non-fatty solids. Thereafter, the sanction was obtained from Chief Medical Officer, Bareilly to prosecute the revisionist and after sanction the complaint was filed by P.W. 1 Food Inspector. After considering the evidence and hearing the counsel for the parties, the learned Magistrate (Economic Offences), Bareilly convicted and sentenced the revisionist to undergo for six months rigorous imprisonment and to pay a fine of Rs. 1,000 and further directed that in default of payment of fine he would further undergo three months rigorous imprisonment. Against the conviction and sentence dated 6.2.2008 appeal was preferred, the appellate court after considering the evidence and hearing the parties dismissed the appeal by judgment and order dated 18.8.1987. The present revision has been filed on several grounds. From perusal of impugned judgment there is no illegality or any grounds for interfering under the revisional jurisdiction. Since the record had already been weeded out and this is a matter of the year 1982, hence after more than two decades it will not be appropriate to ask for reconstruction of the lower court record. Further after more than two decades will not be proper to send the revisionist again behind the bar. Counsel for the revisionist submitted that revisionist remain in jail for more than one month. Counsel for the revisionist requested to reduce the sentence already undergone. He relied upon the judgment in N. Sukumaran Nair v. Food Inspector, Mavelikara, 1997 SCC (Crl) 608. Para 3 of the judgment is exerted hereinbelow : "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. 1,000. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate Government" is empowered to commute 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. 6,000 as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."
(3.) IN view of 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 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. In view of the above discussion, it is clear that offence was committed in the year 1982 and the revisionist was awarded six months rigorous imprisonment and further it was ordered to pay a fine of Rs. 1,000. According to counsel for the applicant, he was in jail for more than a month. Hence, after more than two decades it will not be appropriate, just and proper to send the revisionist behind the bar. Since minimum sentence is six months, hence the "appropriate Government" has power under Section 433, Cr. P.C. to commute the sentence of imprisonment for fine. Hence, in view of the facts and circumstances of the present case, 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 send application to the appropriate Government intimating that such fine has been deposited by him. The State Government may consider the matter in exercise of power under Section 433, Cr. P.C. to commute the remaining period of sentence for fine.;