Brij Bhushan vs State

A.K. Pathak, J.—The petitioner has been convicted u/s 16(1)(c) of the Prevention of Food Adulteration Act, 1954 (for short hereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment of six months with fine of Rs. 5000; in default of payment of fine to undergo simple imprisonment of one month.

Petitioner preferred an appeal being Criminal Appeal No. 29/2010 before the Additional Sessions Judge, New Delhi which came to be dismissed on 16.11.2010. Conviction of the petitioner as also the sentences as awarded by the trial court had been upheld. That is how the petitioner is before this court by way of present revision petition u/s 397 of the Code of Criminal Procedure.

Briefly stated, facts of the case are that Food Inspector along with other officials of the department visited the shop of the petitioner on 20.10.1992 at about 12.45 p.m. to take sample of Khoya lying at the counter of the shop. However, he was not allowed to take sample. Further, he was threatened by the petitioner. Other shopkeepers also gathered there. Keeping in view the hostile attitude of the petitioner and the other persons, who had gathered there. Food Inspector, along with members of the team had to leave the shop without collecting sample. With these facts, a complaint was filed in the court of Metropolitan Magistrate for prosecution of the petitioner u/s 16(1)(c) of the Act.

During the trial, respondent examined five witnesses- Food inspector and other members of the raiding team were examined as PW 1 to PW 5. All these witnesses supported prosecution version that petitioner had obstructed the Food Inspector from collecting the sample. In his statement u/s 313 Cr.P.C. recorded by the trial court, petitioner claimed himself to be innocent. However, he did not lead any evidence in his defence.

Trial Court found the testimony of the Food Inspector and other members of the team to be trustworthy and reliable and concluded that petitioner had prevented the Food Inspector from taking sample, thus, was guilty of committing an offence u/s 16(1)(c) of the Act. The appellate court also appreciated the evidence on record and concurred with the findings of the trial court.

In exercise of revisional jurisdiction High Court has not to re-appreciate and revaluate the evidence adduced by the parties so as to arrive at a different finding other than what had been returned by the courts below. High Court can interfere only if it is shown that findings are perverse and contrary to the law. Learned counsel for the petitioner has failed to point out any such illegality in the impugned order, inasmuch as, he has given up challenge to the conviction of petitioner, on merits.

He has, however, contended that the sentence of the petitioner be reduced to the period already undergone by him in the peculiar facts of this case. Petitioner is aged about 60 years of age and is a diabetic; his daughters are of marriageable age and are dependent on him. His one daughter is mentally retarded; the incident is about two decade old; Petitioner has already deposited fine of 5000 as imposed upon him by the trial court; he is in incarceration for about one month. Documents in support of the above contentions have been placed on record.

Learned APP opposes reduction of sentence on the ground that the Act provides minimum sentence of six months and the same cannot be reduced. Per contra counsel for the petitioner has contended that in the given facts of a case sentence can be reduced below the minimum prescribed in a statute. Reliance has been placed on Nand Lal v. State of Uttarakhand and another 2010 (1) FAC 346; Brahm Dass v. ''The State of Himachal Pradesh 1988 (II) FAC 13; Haripada Das v. State of West Bengal and another 1998 (2) FAC 187; Sri Krishan Gopal Sharma and another v. Govt, of NCT of Delhi 1996 (1) FAC 258; Ram Shankar v. State 2010 II AD (Crl.) (DHC) 448, (decided by Hon''ble Mr. Justice A.K. Pathak; Vir Singh Chauhan v. State 1996 (1) FAC 100. (Decided by Hon''ble Mr. justice V.B. Bansal Rajesh Kumar v. State 2004 (1) JCC 332 (Decided by Hon''ble Mr. justice R.S. Sodhi)

From the judicial Pronouncements, reliance whereupon has been placed, it is clear that sentence below the minimum prescribed under the statute can be handed down to an accused. In this case, petitioner has suffered ordeal of trial for about 18 years; he is now aged about 60 years; he is suffering from diabetese; his one daughter is mentally retarded as has been certified by the institute of Human Behaviour and Allied Sciences, Shahdara; other daughter is of marriageable age. In these peculiar circumstances while upholding the conviction, his sentence is reduced to the period already undergone by him.

Petitioner be released forthwith if not involved in any other case.

Petition is disposed of in the above terms.

Copy of this order be sent to the Superintendent Jail for serving it on the petitioner as also for compliance.