JUDGMENT 1. - This petition has been filed under section 397 r/w Section 401, Cr.P.C. against the judgment and order dated 21.4.1997 passed by the learned Sessions Judge, Jaisalmer in Criminal Case no. 3/96 thereby partly dismissing the appeal upholding the judgment and order of conviction and sentence passed by the Chief Judicial Magistrate, Jaisalmer in Criminal Case No. 434/92 affirming conviction and sentence of the accused - petitioner under section 7/16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). 2. Briefly stated that facts giving rise to the petition are that Sri Bhanwar Lal Purohit, Food Inspector, Jaisalmer filed a complaint against the accused-petitioner with the allegations that on 28.3.1992 at 8.30 a.m., he found the accused-petitioner in possession of milk for sale near the "Jai Javan Jai Kishan" Restaurant situated on the Kutcheri Road, Jaisalmer. He suspected that the milk being sold by the accused was adulterated and, therefore, after completion of the formalities, he purchased 750 ML milk on payment of its price and he divided this quantity into three equal parts and the same were filled in the three separate clean bottles and so three separate samples of milk were prepared. On Chemical Analysis of the sample so taken, the same was confirmed to be adulterated and, at the same time, accused- petitioner did not hold any valid licence therefor, and lastly, after obtaining sanction from the authorised authority, he filed complaint in the Court of the Chief Judicial Magistrate, Jaisalmer for the alleged commission of offences punishable under section 16(1)(a)(ii) & under section 16(1)(a)(i) of the said Act and the learned Chief Judicial Magistrate, after completion of trial, vide his judgment and order dated 26.2.1996, held the accused-petitioner guilty of commission of an offence of selling milk without holding a valid licence and, accordingly, he was convicted and sentenced under section 16(1)(a)(ii) & under section 16(1)(a)(i) of the Act respectively and sentenced to three months' imprisonment and a fine of Rs. 500/- and, in default of payment fifteen days' imprisonment and sentence of six months imprisonment and a fine of Rs. 1,000/-and in default of payment of fine, one month's R.I. were respectively imposed thereunder and, at the same time, both the substantive sentences of imprisonment were ordered to run concurrently. 3. 500/- and, in default of payment fifteen days' imprisonment and sentence of six months imprisonment and a fine of Rs. 1,000/-and in default of payment of fine, one month's R.I. were respectively imposed thereunder and, at the same time, both the substantive sentences of imprisonment were ordered to run concurrently. 3. Being aggrieved, the accused-petitioner filed appeal No. 3/96 in the Court of learned Sessions Judge, Jaisalmer who disposed of the same vide his impugned judgment and order dated 21.4.1997 thereby partly allowing the appeal resulting in acquittal of the accused-petitioner from offence punishable under section 16(1)(a)(i) of the Act resultantly setting aside sentences imposed thereunder. However, the conviction and sentence imposed under section 16(1)(a)(ii) of the Act was affirmed, resulting in disallowance of appeal there against and, the same enabled the accused-petitioner to file this petition. 4. I have heard the learned counsel for the petitioner as well as learned Public Prosecutor who has also agreed that record of the trial Court is not required for disposal of the present petition and hence this petition is being disposed of by this order. 5. The learned counsel for the petitioner submits that the learned appellate Judge was pleased to have partly accepted appeal of the accused-petitioner as above and hence he further submitted that the offence punishable under section 16(1)(a)(ii) read with the proviso appended thereto of the Act, carries maximum sentence of imprisonment extending up to three months imprisonment, besides fine. This alleged incident, when the checking took place dates back to 28.3.1992. Since then a period of over five years has elapsed. There is no allegation that the accused-petitioner is a previous convict. In the circumstances, when the accused- petitioner has been acquitted of a graver offence by the learned Sessions Judge leading to the conclusion that the accused- petitioner was not proved to be selling or in possessing milk with an intent and purpose of selling at the time when the alleged samples of milk are alleged to have been taken by the Food Inspector. In the circumstances, though the possibility cannot be excluded that the accused was not found either in possession of or selling the milk at the time of checking and, even if it is so assumed, since he has withstood ordous trial for a period extending over five years and having regard to the antecedents, character and conduct of the accused-petitioner besides the nature of the offence, it is further submitted that the accused-petitioner is in custody since 21.4.1997 and, as a result, he has suffered and imprisonment of nine days. 6. While maintaining the sentence of fine, as per the order of the trial Court and affirmed by the appellate Court together with the sentence imposed in default. 7. In the circumstances, the offences of non-possession of licence required for sale etc. in food articles as well as for selling adulterated food. articles are substantially different from the point of view of gravity and the quantum of sentences provided therefor. In the result, it is just and fair that the substantive sentence of imprisonment awarded by the learned Chief Judicial Magistrate and also affirmed by the learned Sessions judge in the impugned appellate judgment and order under revision, be modified and at the same time, be reduced to the extent already undergone by the accused-petitioner and, instead, amount of fine so imposed and affirmed under the impugned judgment and order be maintained and affirmed.This petition being partly accepted in respect of quantum of sentence stands disposed of the manner indicated here-in-before. The petitioner is allowed 15 days time to deposit the fine, in case the same has not as yet been deposited.Revision partly allowed. *******