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Judgment
600 grams sample of powdered red chilli purchased by the
Food Inspector from the petitioner was found to be adulterated as
per report Ex.P10 by the Public Health Laboratory, Jodhpur.
Having perused the testimony of the prosecution witnesses
learned counsel for the petitioner concedes that the authority of
the Food Inspector to lift the sample, the purchase of the sample,
its custody and the report Ex.P/10 establishes the charges against
the petitioner of having committed an offence punishable under
Section 7 read with Section 16 of the Prevention of Food
Adulteration Act, 1954. The learned Magistrate vide order dated
26.9.1995 while convicting the petitioner has sentenced him to
undergo rigorous imprisonment for a period of six months and pay
fine in sum of ?1000/-, in default to undergo RI for one month.
Maintaining the conviction by the decision dated 14.12.1995 the
learned appellate court has maintained the sentence.
The offence relates to the date 28.7.1989. Today 28 years
have gone by. The petitioner does not have any criminal
antecedents, neither pre nor post the incident, the petitioner has
no brush with criminal law. The age of the petitioner as of today is
about 60 years. The petitioner has undergone sentence of about
one month. The minimum statutory sentence which the petitioner
must suffer is six months.
The learned counsel for the petitioner prays for directions to
be issued as was done by the Supreme Court in the case reported
as 1997 (9) SCC 101 N.Sukumaran Nair V/s Food Inspector.
Section 433 Cr.P.C. reads as under:-
"433. Power to commute sentence.- The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code ; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine."
In N.Sukumaran Nair''s case (supra) the Supreme Court
observed and directed as under:-
"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.1000. 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.6000 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."
I find that in a later judgment reported as 2004(5) SCC 721
Dayal Singh V/s State of Rajasthan the Supreme Court had
observed as under:-
"15. In the instant case it was not disputed that for the offence charged a minimum sentence of 6 months'' rigorous imprisonment is prescribed by law. The appellant has been sentenced to undergo 6 months'' rigorous imprisonment which is the minimum sentence. We are not inclined to modify the sentence by passing an order of the nature passed in N. Sukumaran Nair where this Court in exercise of its extraordinary jurisdiction imposed only a sentence of fine and directed the State to exercise its powers under section 433 of the Code of Criminal Procedure to commute the sentence of simple imprisonment for fine. In the instant case, the appellant has been sentenced to undergo 6 months'' rigorous imprisonment. Moreover, we are firmly of the view that strict adherence to the Prevention of Food Adulteration Act and the Rules framed thereunder is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could get away with mere fine. We, therefore, find no reason to interfere with the sentence imposed against the appellant."
Noting the two earlier decisions, in the decision reported as
2009(12) SCC 646 State of Rajasthan V/s Jagdish Prasad the
Supreme Court directed as under:-
"However, since the occurrence took place nearly three decades back if the accused respondent moves the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective. For a period of three months, the accused need not surrender to undergo sentence during which period it shall be open to him to move the appropriate Government for commutation. If no order in the matter of commutation is passed by the appropriate Government the accused shall surrender to custody to serve the remainder of sentence."
Since I am not inclined to interfere with the judgment of
conviction and sentence passed, I would be inclined to issue the
direction as was issued by the Supreme Court in Jagdish Prasad''s
case (supra). 10. Dismissing the revision petition, I suspend the sentence for a
period of four months directing that if the petitioner makes a
representation to the appropriate Government for commutation of
sentence of imprisonment within one month. The same shall be
considered by the appropriate Government and decision would be
taken within three months. The petitioner need not surrender for a
period of four months. If the appropriate Government commutes
the sentence, the petitioner need not surrender. If the petition
seeking commutation is dismissed the petitioner would suffer the
remaining sentence.