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2000 DIGILAW 452 (ALL)

RAM BABU GUPTA v. STATE OF U P

2000-03-16

J.C.MISHRA

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J. C. MISHRA, J. This revision is directed against the order dated 24-5-1983 passed by the Sessions Judge, Shahjahanpur, dismissing the appeal preferred against the judgment and order dated 30-8-19x2 passed by the Judicial Magistrate of Special Court, Shahjahanpur convicting the revisionist under Section 7/16 of Prevention of Food Adulteration Act and sentencing him to undergo rigorous imprisonment of six month sand fine of Rs. 1000/ -. 2. Heard learned counsel for the revisionist and learned Addiiional Government Advocate. 3. I find no merit in (lie revision as regards the conviction is concerned. However, this revision is pending since 1983 and the adulteration was made on 11-1-1979. 4. In view of the facts and circumstan ces 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, reported in (1992) 1 SCC 365 ; 1992 JIC 108 (SC), altered the sentence of imprisonment to sentence of fine on the ground that 15 years had passed by from the date of of fence 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. 5. 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 man datory 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 sentences 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 of fence being proved at least minimum sen tence of imprisonment has to be awarded and the Courts cannot overlook the legisla tive mandate and award sentence of fine only though on equity it may feel justified to lake lenient view. In my opinion, if the legislation requires that on an of fence being proved at least minimum sen tence of imprisonment has to be awarded and the Courts cannot overlook the legisla tive mandate and award sentence of fine only though on equity it may feel justified to lake lenient view. However, Courts can convert sentence of rigorous imprisonment into sentence of simple imprisonment. 6. Though the Courts have got no power to refuse to award minimum sen tence 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. 7. It is open to Stale 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 com mute the sentence. In view of this legal position the Supreme Court in N. Sukumaran Nair v. Food Inspector, Mavelikara, reported in (1977) 9 SCC 101, 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 mat ter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure. 8. On similar consideration the Supreme Court in Badri Prasad v. State of Madhya Pradesh, reported in 1996 SCC (Criminal) 79, passed the following order:- "there is some scope, however, towards the sentence because this Court granted in 108) leave and the appellant is on hail. We would rather now scale down the sentence of six-months R. I. to three months simple imprison ment, while sustaining the fine of Rs. 1,000/- as awarded by the Courts below. Subject to this modification in the sentence, the appeal other wise fails. This has been made to enable the appellant to approach the State Government under sub-clause (d) of Section 433 for conver sion of simple, imprisonment to fine. 1,000/- as awarded by the Courts below. Subject to this modification in the sentence, the appeal other wise fails. This has been made to enable the appellant to approach the State Government under sub-clause (d) of Section 433 for conver sion of simple, imprisonment to fine. Since the adulteration was only by adding a coloring con tents in the chilies 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 curt 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. " 9. In my view it is not legally permis sible 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 for malise the imposition of sentence ol fine by virtue of its powers under Section 433 (d) of the Code of Criminal Procedure. 10. 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 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/ -. 11. The minimum sentence of im prisonment 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. 1,000/ -. 11. The minimum sentence of im prisonment 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 i he second proviso. 12. 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. 13. Considering the nature of the ac cusation and also the fact that the offence had taken long before I find it a fit case to award simple imprisonment and, there fore, the rigorous imprisonment awarded by the Magistrate and confirmed by the appellate Court is altered to minimum period but of simple imprisonment. 14. 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 im posed by the trial Court with the direction to the revisionist to deposit the fine im posed in the trial Court within a period of two months from the date of receipt of the notice from the Court of Magistrate con cerned and to apprise the State Govern ment that the amount has been deposited with a copy of receipt and a 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 form alise the commutation in terms of the direction given by the Supreme Court in the cases referred to above. 15. In case the accused fails to deposit the fine imposed within 2. months as or dered he shall serve out the sentence of simple imprisonment as ordered. 16. The Magistrate concerned shall in timate the alteration of the sentence to the revisionist on receipt of the copy of this order. 17. 15. In case the accused fails to deposit the fine imposed within 2. months as or dered he shall serve out the sentence of simple imprisonment as ordered. 16. The Magistrate concerned shall in timate the alteration of the sentence to the revisionist on receipt of the copy of this order. 17. The revision is disposed of with modification of sentence as aforesaid while maintaining the conviction. Revision disposed of. .