Dhruv vs State of U.P.

R.K. Rastogi, J.—This is a revision against the judgment and order dated 8.6.1987, passed by Sri Raghunath Prasad, then I Ind Additional Sessions Judge, Deoria in Criminal Appeal No. 7 of 1987, Dhruv v. State of U.P. Criminal Appeal No. 7 of 1987

The facts relevant for disposal of this revision are that on 22.8.1983, the complainant, Food Inspector visited the grocery shop of the accused-revisionist and took sample of wheat flour from his shop. It was sent to the public analyst for examination, and according to the report of the Public Analyst, it was adulterated. Then a notice u/s 13(2) of P.F. Act was given to him and after obtaining sanction of the C.M.O. a complaint was filed against him.

Learned Magistrate summoned the accused and framed charges against him u/s 7/16 of the P. F. Act. The complainant, Food Inspector examined himself as P.W. 1 and narrated the entire case on oath. He also examined Sri Gomti Prasad (P.W.2) an eye-witness of the incident of taking sample of flour and Sri Ashok Kumar (P.W. 3) clerk in the office of the C.M.O. to prove dispatch of the notice u/s 13(2) of the Act alongwith the report of Public Analyst.

The accused-revisionist in his statement u/s 313, Code of Criminal Procedure stated that the flour whose sample was taken was not meant for human use but he was selling it for consumption of animals. Learned Magistrate, after hearing of the case, was of the view that the case was sufficiently proved against the revisionist beyond all reasonable doubts. He, therefore, convicted the accused revisionist u/s 7/16 of P. F. Act and sentenced him to undergo six months'' S.I. and awarded a fine of Rs. 1,000.

Aggrieved with that judgment and order dated 2.2.1987, the accused filed Criminal Appeal No. 7 of 1987. The above appeal was decided by Sri Raghunath Prasad I Ind Additional Sessions Judge, Deoria, vide his judgment dated 8.6.1987. He after hearing of the appeal was in agreement with the findings of the learned Magistrate. He, therefore, dismissed the appeal and confirmed the conviction order as well as the sentence. Aggrieved with that judgment and order the accused has filed this revision.

I have heard the learned Counsel for the revisionist and the learned A.G.A. for the State.

Learned Counsel for the revisionist did not challenge the findings of the court below on merits. He made only one submission before me that the incident is dated 22.8.1983. The accused was convicted by the trial court on 2.2.1987. The appeal filed by the accused was dismissed on 8.6.1987. Then the accused filed this revision before this Court and this revision could not come up for hearing before this Court for a very long time and for the first time it was listed for hearing on 16.10.2003. It was also pointed out that the file of the appellate court was also weeded out. However, the file of the trial court is intact and has been sent to this Court. It was submitted by the learned Counsel for the revisionist that the accused in his statement u/s 313, Code of Criminal Procedure recorded on 27.10.1986, has described his age as 30 years. He further submitted that in this way at present the revisionist is about 50 years old, and after such a long gap of 23 years from the date of the incident, it would not be appropriate to send the accused to Jail again to serve out the sentence of imprisonment awarded to him. He submitted that, in this view of the matter, a lenient view should be taken in regard to punishment. He further pointed out that the appeal of the accused-revisionist was dismissed on 8.6.1987 and then he was taken into custody and he was granted bail by this Court in this revision on 22.6.1987, and thereafter he was released after filing bail bonds, etc. before the trial court. He submitted that in this way the accused has undergone imprisonment for a period of more than two weeks and this period should be treated to be sufficient.

Learned A.G.A. opposed the prayer of the accused-revisionist. He contended that the sentence of minimum six months imprisonment has been provided u/s 16 of the P.F. Act and so the imprisonment cannot be reduced. It is, however, to be seen that it has been provided in this very section that the Court in special circumstances can award lesser punishment after recording reasons. It is also to be seen that in the present case the accused was convicted for sale of adulterated flour which took place in the year 1983. Now the accused-revisionist is aged about 50 years and as such, I am of the view that taking into consideration this long gap of 23 years between the date of the incident and the date of judgment by this Court as well as the present age of the accused, it would not be appropriate to send him to jail again for undergoing the remaining period of imprisonment. As such I am of the view that instead of ordering him to undergo remaining part of sentence of imprisonment awarded to him the period of imprisonment should be reduced to the period already undergone by him and the amount of fine should be enhanced to Rs. 2,000.

I, therefore, partly allow this revision. The conviction of accused- revisionist u/s 7/16 of P.F. Act is maintained but the sentence awarded to him is modified and taking into consideration that the accused- revisionist has already undergone imprisonment for a period of more than two weeks in this case, I order that the sentence regarding award of imprisonment shall stand modified to the period of imprisonment already undergone by him provided he pays enhanced fine of Rs. 2,000. He is allowed two months'' time to pay this amount of fine and if any part of fine has already been paid by him that shall be liable to be adjusted towards this amount. If the fine is not deposited by him he would have to undergo the sentence as ordered by the trial court and confirmed by the appellate court.