Ram Babu Gupta vs State of U.P. and Another

J.C. Mishra, J.—This revision is directed against the order dated 24.5.1983, passed by the Sessions Judge, Sahahjahanpur, dismissing the appeal preferred against the judgment and order dated 30.8.1982, passed by the Judicial Magistrate of Special Court, Shahjahanpur convicting the revisionist u/s 7/16 of Prevention of Food Adulteration Act and sentencing him to undergo rigorous imprisonment of six months and fine of Rs. 1,000.

Heard learned Counsel for the revisionist and learned Additional Government Advocate.

I find no merit in the revision as regards the conviction is concerned. However, this revision is pending since 1983 and the adulteration was made on 11.1.1979.

In view of the facts and circumstances of the case that the alleged adulteration was made in the year 1979, it would not be proper to send the accused to jail after such a long time ; more so when he had served out at least few days'' sentence after his conviction. The Supreme Court in State of Orissa v. K. Rajeshwar Rao (XXIX) 1992 ACC 70 (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 time the ends of justice may not be served by sending the Respondent to imprisonment ; more so when 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 un-amended Act it was not mandatory to impose the minimum sentence. This decision, 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 any sentence up to maximum limit prescribed. In my opinion, if the legislation requires that on an offence being proved at least minimum sentence of imprisonment has to be awarded and the Courts cannot overlook the legislative mandate and award sentence of fine only though on equity it may feel justified to take lenient view. However, Courts can convert 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 N. Sukumaran Nair Vs. Food Inspector, Mavelikara, , 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 formalise 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 1996 SCC 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 bail. We would rather now scale down the sentence of six months'' R.I. to three months'' simple imprisonment, while sustaining the fine of Rs. 1,000 as awarded by the courts below. Subject to this modification in the sentence, the appeal otherwise fails. This has been made to enable the Appellant to approach the State Government under Sub-clause (d) of Section 433, for conversion of simple imprisonment to fine. Since the adulteration was only by adding a colouring content in the chillies powder and that was possibly done to please the customers'' eye, we recommend that the State Government, release the Appellant on the charging of Rs. 2,000 as fine and that an appropriate order be passed by the State Government to that effect within a period of three months. The Appellant shall deposit in the trial court under two heads the fine imposed by the Court i.e. Rs. 1,000 as also the alterable fine of Rs. 2,000 within a period of three weeks from today and apprise the State Government of his having discharged his obligation. On his doing so, the Appellant need not be arrested.

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 State Government may be desired to formalise the imposition of sentence of fine by virtue of its powers u/s 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, sells or distributes any article of food enumerated in Clauses (a) to (g), he shall in addition to the penalty to which he may be liable under the provisions of Section 6 be punishable with an imprisonment for a term which shall not be less than six months which may extend 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 Sub-clauses (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 Act it is open to the Courts either to award R.I. or simple imprisonment but the period of imprisonment cannot be less than six months and if the case is covered by the proviso to sentence of three months.

Considering the nature of 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 stated above provisionally instead of sentence of six months simple imprisonment, the revisionist is sentenced to a fine of Rs. 6,000 including the sentence of fine imposed by the trial court with the direction to the revisionist to deposit the fine imposed in the trial court within a period of two months from the date of receipt of the notice from the Court of Magistrate concerned and to apprise the State Government that the amount has been deposited with a copy of receipt and copy of this order. The revisionist in doing so need not be arrested. The State 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 alteration of the sentence to the revisionist on receipt of the copy of this order.

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