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2000 DIGILAW 359 (ALL)

LAL SINGH v. STATE OF UTTAR PRADESH

2000-03-01

M.C.JAIN

body2000
M. C. JAIN, J. ( 1 ) THIS revision has been filed by the revisionist Lal Singh against the judgment and order dated 27-9-1985 passed by Sri S. K. Mishra, Sessions Judge, Pilibhit dismissing Criminal Appeal No. 62 of 1985 against the judgment and order dated 4-6-85 passed by 11 Addl. Munsif-Magistrate Special Judicial Magistrate Pilibhit in Criminal Case No. 211 of 1984 convicting him under S. 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the P. F. A. Act") and sentencing him to six months rigorous imprisonment and to pay a fine of Rs. 1000. 00. In default of payment of fine he was to undergo further rigorous imprisonment for two months. He was also convicted under S. 7/16 of Prevention of Food Adulteration Act read with Rule 50 (1) of Prevention of Food Adulteration Rules, 1955 and sentenced to three months rigorous imprisonment and to pay a fine of Rs. 500. 00. In default of payment of fine he was to undergo further rigorous imprisonment for one month. Both the substantive sentences of rigorous imprisonment were to run concurrently. ( 2 ) I have heard learned counsel for revisionist and learned A. G. A. A sample of cows milk was taken by the Food Inspector from the revisionist on 25-4-1984 at 8-30 a. m. which he was selling without licence. The same was found to be adulterated as per the report of Public Analyst dated 1-6-1984. The accused-revisionist sent the second sample for analysis to the Central Food Laboratory Calcutta. As per the report of Central Food Laboratory dated 2-2-1985 also, the sample was found to be adulterated as it did not conform to the prescribed standard of milk fat and non-fatty solids. At the trial, the Prosecution examined the Food Inspector A. K. Gupta P. W. 1 besides relying on documentary evidence. The accused-revisionist also examined two witnesses in defence. As the trial Court found the case to be proved, it passed the judgment of conviction and sentences against the accused-revisionist which he challenged before the Appellate Court without success. ( 3 ) LEARNED counsel for revisionist has argued that the compliance of S. 10 (7) of the P. F. A. Act was not made inasmuch as no independent public witness had been examined. It is found that it was clearly mentioned by the Food Inspector in the receipt Ex. ( 3 ) LEARNED counsel for revisionist has argued that the compliance of S. 10 (7) of the P. F. A. Act was not made inasmuch as no independent public witness had been examined. It is found that it was clearly mentioned by the Food Inspector in the receipt Ex. Ka 2 that no public person was prepared to stand as a witness. So, the absence of public witnesses was very well explained. Moreover, the accused-revisionist could not show any enmity with the Food Inspector who took the sample which could tempt him to concoct a false case against him. The absence of public witnesses havingbeen plausibly explained, no adverse inference could be drawn against the prosecution case. ( 4 ) THE second point urged by the learned counsel for the revisionist is that the two defence witnesses were disbelieved without any justifiable cause. It is found that the testimony of defence witnesses was of negative character. The same had been rejected for valid reasons. Rather presence of the accused-revisionist at the spot and his thumb marks on the concerned papers came to be admitted by DW. 1 Krishna Kumar. D. W. 2 Kundan Lal admitted that he had appeared as a witness at the behest of the accused-revisionist who belonged to his village. D. W. 1 Krishna Kumar was also the neighbour of accused-revisionst. No benefit could accrue to the accused-revisionist on the basis of interested testimony of these two defence witnesses. ( 5 ) I do not locate any illegality, incorrectness or impropriety in the appreciation of the evidence by the trial Court as well as by the first Appellate Court. The conviction of the accused-revisionist is perfectly justified. ( 6 ) LEARNED counsel for the revisionist then argued that the sentences passed against him should be converted to the period of imprisonment already undergone and the amount of fine. I have given due consideration to this aspect of the matter. The PFA Act prescribes minimum sentence of imprisonment and it is not legally permissible to alter such a sentence. When the legislation has done away with the discretion of the Courts to award either the sentence of imprisonment or fine and the minimum sentence has been prescribed, the Court cannot award less than the minimum sentence of imprisonment which may, of course, go upto the maximum prescribed limit. When the legislation has done away with the discretion of the Courts to award either the sentence of imprisonment or fine and the minimum sentence has been prescribed, the Court cannot award less than the minimum sentence of imprisonment which may, of course, go upto the maximum prescribed limit. ( 7 ) IN the case of N. Sukumaran Nair v. Food Inspector (1997) 9 SCC 101 : (1995 0 AIR (SCW) 3229 : 1995 Cri LJ 3651), the offence of adulteration in ice-cream had been committed in 1984. The offender had been awarded the sentence of six months simple imprisonment and to pay a fine of Rs. 1000. 00. THE appeal came up for hearing before the Supreme Court on 31/01/1995. Having regard to the fact that the offence took place in the year 1984, the Supreme Court held that it was an appropriate case for commutation of sentence by the appropriate Government. The relevant paragraph of the judgment of the Supreme Court is excerpted below for instant attention. "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 S. 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 S. 433 of the Code of Criminal Procedure. " ( 8 ) IT follows from the above decision of the Apex Court that though the Courts have no power to refuse to award the minimum prescribed sentence of imprisonment, but it is open to the State Government to take a lenient view considering the overall circumstances, particularly the fact that the sentence was awarded long before and could not be implemented on account of delayed disposal of revision. ( 9 ) RELYING on the aforesaid decision of the Supreme Court, this Court adopted similar approach in the case of Bhagwan Das v. State (1998) 2 EFR 353 : (1998 All LJ 1921 ). In the present case also the offence was committed as back as on 25-4-1984. The appeal of the revisionist was dismissed by the Appellate Court on 27-9-1985 and he was ordered to be released on bail by this Court consequent upon the filing of the revision on 9-10-1985. It is thus apparent that he underwent imprisonment also for a few days. For all these years, he also suffered the agony of this case hanging over his head. As per S. 433 (c ). Cr. P. C. the appropriate Government is inter alia, empowered to commute a sentence of rigorous imprisonment for simple imprisonment for any term to which the person might be sentenced or fined. It appears that in the decision of the Supreme Court mentioned above, reference came to be made of S. 433 (d), Cr. P. C. becausein that case the offender had been awarded sentence of six months simple imprisonment. Therefore, for the purpose of commutation by the appropriate Government S. 433 (d) Cr. P. C. was to apply. In the present case, the substantive sentences of imprisonment awarded to the accused-revisionist are of rigorous nature but, as observed above the appropriate Government has been empowered under S. 433 (c) Cr. P. C. to commute sentence of rigorous imprisonment also into that of fine. ( 10 ) THEREFORE, having regard to the facts and circumstances of the present case in which the offence of adulteration was committed as back as in the year 1984 and that the revisionist-accused has suffered few days imprisonment also, no useful purpose would be served by sending him to jail by unsettling his settled life after such long lapse of time. It would, therefore, be a fit case for commutation of sentence of rigorous imprisonment by the appropriate Government to the sentence of imprisonment already undergone and the fine of Rs. 6000. 00, in addition of total amount of fine of Rs. 1500. 00 awarded to him as part of substantive punishment. ( 11 ) THIS Court, accordingly, directs the accused-revisionist to deposit in the trial Court a sum of Rs. 6000. 6000. 00, in addition of total amount of fine of Rs. 1500. 00 awarded to him as part of substantive punishment. ( 11 ) THIS Court, accordingly, directs the accused-revisionist to deposit in the trial Court a sum of Rs. 6000. 00 as fine in commutation of his substantive sentence of rigorous imprisonment (in addition of the fine of Rs. 1500. 00 imposed upon him as a part of the substantive punishment) within a period of six weeks from the date of receipt of notice from the Court of Magistrate concerned and intimate to the appropriate Government that such fine has been deposited with a copy of receipt and a copy of this order. On deposit of such fine, the revisionist shall not be arrested. The appropriate Government (State Government) on receipt of the copy of the order and receipt evidencing the deposit of fine by the accused-revisionist may formalise the matter by passing appropriate order in terms of S. 433 (c) Cr. P. C. ( 12 ) IN case accused-revisionist fails to deposit the amount of fine as directed above, he shall serve out the sentences imposed upon him. ( 13 ) THE Magistrate concerned shall immediately intimate the alteration of sentence to the revisionist on receipt of the copy of this order. ( 14 ) THE revision is disposed of with the modification of sentences as aforesaid while maintaining the conviction. Order accordingly. .