Paras Nath vs State of U.P.

J. C. Mishra, J.—This revision is directed against the order dated 18685 passed by the Sessions Judge, Mirzapur dismissing the appeal preferred against the judgment and order dated 1710 84 passed by Judicial Magistrate, Mirzapur convicting the revisionist under Section 7/16 Prevention of Food Adulteration Act (hereinafter called ''the Act'') and sentencing him to rigorous imprisonment for nine months and to fine of Rs. 1,500.

The prosecution case is that on 5881 the Food Inspector Shailendra Kumar Singh went at the shop of the revisionist and purchased 500 gm. Ghana dal, divided it in three parts, kept in three clean and dry phials and sent one of them to the Public Analyst. The sample was found containing 10% khesaridal, which is injurious to health. After obtaining the sanction a complaint was lodged. To prove its case the prosecution examined Hazari Singh who proved reports and sanction for prosecution and senatory supervisor Ram Bali (PW2). The prosecution also examined Wazir Ashraf (PW3) who proved various documents as also Shailendra Kumar Singh (PW4) who had taken the sample from the shop of the accused. The learned Magistrate believed the evidence in support of the complaint and convicted and sentenced the accused as aforesaid. The appeal preferred by the accused was dismissed and consequently this revision was filed.

I have heard Sri R.C. Shukla, the learned Counsel for the revisionist and the learned AGA.

The learned Counsel for the revisionist contended that the conviction is bad on account of noncompliance of Section 10 (7) of the Act. It is true that no public witness was present at the time the sample was taken but the Food Inspector has given proper explanation that independent witnesses were not prepared to give evidence and, therefore, the presence of any public witness could not be procured. The explanation in this regard was believed by both the Courts below and there is no reason to take contrary view. Mere nonmentioning of this explanation in the memo by itself cannot be sufficient to discard the evidence of the Food Inspector, which is believed on proper appreciation by the Courts below. In the circumstances of the present case the non examination of an independent witness is hardly relevant more so when nothing could be elicited in the crossexamination to discredit the testimony of the Food Inspector. Moreover, according to the Food Inspector 2 or 3 persons were present when the sample was taken. The view taken by the learned Sessions Judge appears to be correct.

It has been contended that notice in Form VI was not given to the revisionist. Thus, there was breach of Section 11A of the Act. This plea was also considered by the appellate Court and by a reasoned order the plea that the notice did not bear the signature of the revisionist was repelled.

Lastly the learned Counsel contended that the alleged sample was taken in the year 1984 and after the lapse of 15 years it would not be proper to sent the accused to jail; more so when he has served out at least few days of the sentence awarded. I find merit in this contention.

In view of the facts and circumstances of the case that the alleged adulteration

was made in the year 1981 ii would not Iv proper to send the accused to jail after such a long time; more so when he had served at least few days'' sentence after his conviction. The Supreme Court in Stoic of Orissa v. K. Rajeshwar Rao, (1992) I SCC 365; 1992JIC 108 (SC), altered the sentence of imprisonment to sentence of fine on the ground that 15 years had passed by from the date of offence and at this distance of lime the ends of justice may not he served by sending the respondent to imprisonment. It is suffice that he has undergone all these years the agony of the prosecution.

The offence in the case before the Supreme Court had occurred on March 13, 1976, before the Amending Act came into force. The Supreme Court observed that under the unamended Act it was not mandatory to impose the minimum sentence. This decisions, therefore, not applicable to the offences which occurred after the Amending Act came into force. Since the legislation has done away with the discretion of the Courts to award either sentence of imprisonment or fine and minimum sentence has been prescribed, the Courts have been left with no discretion but to award minimum or more upto maximum limit prescribed. In my opinion, if the legislation requires that on an offence being proved minimum sentence of imprisonment has to be awarded the Courts cannot overlook the legislative mandate and award sentence of fine only though on enquity it may feel justify to take lenient view. However, Courts can covert sentence of rigorous imprisonment into sentence of simple imprisonment.

Though the Courts have got no power to refuse to award minimum sentence of imprisonment yet under clause (d) of Section 433 of Code of Criminal Procedure ''the appropriate Government'' is empowered to commute the sentence of simple imprisonment and to impose fine.

It is open to State Government to take lenient view considering the nature of the offence and circumstances, specially the sentence awarded long before, could not be implemented on account of delayed disposal of revision or appeal may commute the sentence. In view of this legal position the Supreme Court in A''. Sitkumaran Nair v. Food Inspector,

Mavelikara, (1997) 9SCC101, considering the delayed disposal found the case appropriate for commutation of sentence and directed 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 and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the Supreme Court observed that the State Government may form alise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure.

On similar consideration the Supreme Court in Badri Prasad v. State of Madhya Pradesh, 996 SCC (Criminal) 79, passed the following order:

"There is some scope, however, towards the sentence because this Court granted in 1989 leave and the appellant is on ba12. In my view it is not legally permissible to alter the minimum sentence of imprisonment in fine only but sentence of rigorous imprisonment can be altered into simple imprisonment and the Slate Government may be desired to formalize the imposition of sentence of line by virtue of its powers under Section 433 (d) of the Code of Criminal Procedure.

Section 16(1) of the Prevention of Food Adulteration Act requires that an accused, if he manufactures for sale or stores, sales or distributes any article of food enumerated in clauses (a) to (g), he shall in addition to the penally to which he may be liable under the provisions of Section 6 bepunishablewilh an imprisonment for a term which shall not be less than six months which may exteni to three years and with fine which shall not be less than Rs. 1,000.

The minimum sentence of imprisonment of six months and fine of Rs. 1,000 may be reduced for any adequate and special reasons to be mentioned in judgment to a sentence of imprisonment which shall not be less than three months and with fine which shall not be less than Rs. 500 if the offence is under subclauses (i) and (ii) of (a) and is in with respect of primary food in the cases covered by proviso (i) and (ii) as also in cases covered by the second proviso.

In view of Section 16 of the Aci il is open to the Courts either to award RI or simple imprisonment but the period of imprisonment cannot be less Ihan six months and if the case is covered by the proviso to scnicnccof three mom hs.

Considering the natureol the accusation and also the fact that the offence had taken long before I find it a fit case to award simple imprisonment and, therefore, the rigorous imprisonment awarded by the Magistrate and confirmed by the appellate Court is altered to minimum period but of simple imprisonment.

In view of the facts slated above provisionally instead of sentence of six months simple imprisonment, the revisionists are sentenced to a fine of Rs. 6,000 including the sentence of fine imposed by thetnal Court with the direction to the revisionists to deposit the line imposed in the trial Court within a period of two months from the dale of receipt of the notice from the Court of Magistrate concerned and to apprise the Slate Government that the amount has been deposited with a copy of receipt and copy of this order. The Slate Government on receipt of the copy of the order and receipt evidencing deposit of fine may formalise the commutation in terms of the direction given by the Supreme Court in the cases referred to above.

In case the accused fails to deposit the fine imposed within 2 months as ordered he shall serve out the sentence of simple imprisonment as ordered.

The Magistrate concerned shall intimate the revisionist the alteration of the sentence on receipt of the copy of this order.

The revision is disposed of with modification of sentence as aforesaid while maintaining the conviction.

Sentence modified.