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2004 DIGILAW 59 (GAU)

Jagdip Rai v. State of Assam

2004-01-31

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Both these revisions are heard together and disposed of by this common order. 2. Heard Smt. K. Yadav, learned Counsel for the Petitioner and Mr. F.H. Laskar, learned Public Prosecutor. 3. On 7.6.92, the Food Inspector collected two samples of milk from accused Petitioner Jagdip Rai and thereafter the samples were sent to public analyst for examination who submitted the report that the milk (cow milk) in both the cases were adulterated as it suffers from the deficiency of milk fat and there was added water. The Petitioner was tried in two separate cases being Case No. 1131c/92 and 1132c/92 and in both the cases the Petitioner was convicted and sentenced to suffer imprisonment for six months and to pay a fine of Rs. 1000/-, in default further imprisonment for one month. 4. Feeling aggrieved, the Petitioner filed two separate appeals being criminal appeal No. 11/97 and criminal appeal 12/97 before the Sessions Judge, Kamrup, Guwahati and both these appeals were heard together and dismissed by common order dated 27.4.98. Hence the present revisions. 5. On perusal of the oral and documentary evidence on record, we find that in these cases the collection of samples of milk from the Petitioner accused Jagdip Rai is not in dispute, on the contrary, in his statement recorded under Section 313 Code of Criminal Procedure has admitted that samples of milk was collected from him by the Food Inspector. The accused petitioner however raised the plea that the milk was not meant for sale. The Food Inspector as well as the other prosecution witness, who had witnessed the taking of the samples, had stated that the accused was a milk vendor. Even defence's own witness PW 1 has belied his own evidence that the milk was not meant for sale. Further we find that the Food Inspector has deposed to the effect that he had purchased the milk by paying the cost and acknowledgement to that effect was given by the accused. Ext. 2 is the said acknowledgement given by the vendor showing receipt of Rs. 6 towards that cost of the milk. 6. The law is well settled that sale of goods to the Food Inspector for the purpose of analysis amount to 'sale' as defined under Clause (xiii) of Section 2 of the Prevention of Food Adulteration Act. Ext. 2 is the said acknowledgement given by the vendor showing receipt of Rs. 6 towards that cost of the milk. 6. The law is well settled that sale of goods to the Food Inspector for the purpose of analysis amount to 'sale' as defined under Clause (xiii) of Section 2 of the Prevention of Food Adulteration Act. In view of the above, the plea raised by the Petitioner was rightly rejected by the courts below. 7. The learned Counsel has further submitted that in these cases there was violation for non-compliance of the provisions of Rule 14 of the Prevention of Food Adulteration Act. 8. We have perused the evidence of the Food Inspector wherein he has stated categorically that the samples were taken in dry and clean container and this part of the evidence has not been challenged. As a matter of fact no suggestion was also given that the container was not clean or dry. 9. Smt. Yadav has also submitted that in these cases there is no evidence as to when the samples were analysed. 10. The evidence on record shows that the samples were collected on 7.6.92 and it was sent to the forensic laboratory on 8.6.92. The report of the public analyst has been produced and the date of the analysis is 3.7.92 Ext. 7. Thus we find that the samples were analysed within the time provided under the law. No other point of law or feet has been raised before us. We find no merit in these revisions and the conviction and sentence is affirmed. 11. The next submission of the learned Counsel is in respect of sentence. It is submitted that the samples were collected in the year 1992 and long 12 years have passed and the Petitioner has suffered both mentally and financially and as such the sentence of imprisonment may be substituted. 12. In the case of N. Sukumaran Nair v. Food Inspector, Mavelikara (1997) 9 SCC 101 the Apex Court held as follows: 3. Tile offence took place in the year 1984. The Appellant has been awarded six months' simple imprisonment and has also been ordered lo 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. Tile offence took place in the year 1984. The Appellant has been awarded six months' simple imprisonment and has also been ordered lo 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 appriatc 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 formalize the twitter by passing appropriate orders under Clause (d) of Section 433 of the Code of Criminal Procedure. The decision of N. Sukumaran Nair(supra) was reiterated in the case of Santosh Kumar v. Municipal Corporation (2000) 9 SCC 151 . Section 433 Code of Criminal Procedure reads as follows: 433. Power to commute sentence. The appropriate Government may, without the consent of the person sentence, commute. (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (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. 13. From the above we find that the power to commute lies with the 'appropriate government'. The sentence imposed on the Petitioner is the minimum sentence provided under the law and as such in view of the above provisions; we provide that the Petitioner will be at liberty to approach the appropriate government for relief, if any, in the above matter. The execution of sentence be kept in abeyance for a period of three months to enable the Petitioner to approach the Govt. under Section433 Code of Criminal Procedure. The revision petitions stand dismissed as above. Send down the records to the Chief Judicial Magistrate, Kamrup, Guwahati. Petition dismissed.