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Madhya Pradesh High Court · body

2008 DIGILAW 1029 (MP)

Laxman v. State of M. P.

2008-08-14

N.K.MODY

body2008
ORDER 1. Final arguments heard. Perused the record. Being aggrieved by the judgment dated 17.11.2005 passed by IV Additional Sessions Judge, Ratlam in Cr.A.No. 156/04, whereby the judgment dated 7.12.2004 passed by CJM, Ratlam in criminal Case No. 2360/94, whereby the petitioner was convicted for the offence punishable under section 7 (1) read with 16 (1) (a) (i) of Prevention of Food Adulteration Act was confirmed and the sentence of six months RI with fine of Rs. 1,000/- was also confirmed, the present revision petition has been filed. 2. Petitioner was persecuted by the respondent under the provision of Prevention of Food Adulteration Act, 1954 (which shall be referred hereinafter as an Act), alleging that on 12.3 .2003 petitioner was going to market to sell Buffalo Milk Product (Mawa). It was alleged that the sample was taken and after the report of analyst it was found that the alleged milk product was adulterated. It was prayed that the petitioner be convicted. After the trial it was found that the Mawa which was in possession of the petitioner was adulterated. Hence the petitioner was convicted and was sentenced for a period of six months with fine of Rs. 1,000/- and in appeal the sentence was confirmed, hence the revision petition. 3. Learned counsel for the petitioner argued at length and submits that petitioner has been convicted illegally while petitioner has not committed any offence. It is submitted that learned Courts below completely overlooked the fact that the milk product was not for sale. It is submitted that mandatory provisions of the Act were not complied with, hence the prosecution itself was bad in law. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that petitioner was in jail w.e.f. 17.11.2005. Bail was granted by this Court vide order dated 7.12.2005 and thereafter petitioner was released on bail. Learned counsel submits that the conviction and sentence be set aside. 4. In alternative learned counsel submits that the petitioner was in jail for a period of 21 days. It is submitted that petitioner was in jail w.e.f. 17.11.2005. Bail was granted by this Court vide order dated 7.12.2005 and thereafter petitioner was released on bail. Learned counsel submits that the conviction and sentence be set aside. 4. In alternative learned counsel submits that the petitioner was in jail for a period of 21 days. Looking to the nature of offence and the fact that petitioner has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonable be enhanced. For this contention learned counsel placed reliance on a decision of this Court in the matter of Pradeep Kumar v. State of M.P., reported in 1999 (II) MPWN 76 , wherein the accused was punished for a period of six months was reduced to the sentence of3 7 days for the period which already undergone and fine was enhanced to Rs. 5,000/-. . 5. Learned counsel further placed reliance on a decision of this Court in the matter of State of M.P. v. Nanhelal, reported in 1991 (II) MPWN 131, wherein the offence was committed before 10 years and the petitioner was convicted for a period of six months RI and fine of Rs. 1,000/-, sentence of RI was converted into fine of Rs. 2,000/- holding that since a decade has elapsed since the taking of the sample from the respondent the ends of justice do not warrant award of statutory minimum jail sentence to him. 6. Further reliance was placed on a decision of this Court in the matter of Municipal Corporation, Indore v. Narpatsingh, reported in 1989 (1) MPWN 105, wherein petitioner was prosecuted under section 7/16 of Prevention of Food Adulteration Act, 1954 on the ground that milk solids other than milk fat found less than prescribed standard, this Court held that the accused respondent is found to be guilty of the offence charged. However, considering the long lapse of time, in view of the Notification No. 36 dated 1.12.1988 published in M.P. Govt. Gazette, dated 2.12.1988 issued by the Government, the ends of justice will be substantially met if the accused respondent is sentenced to pay a fine of Rs. 1,000/- (Rs. One thousand) or in default to undergo rigorous imprisonment for two months. 7. Gazette, dated 2.12.1988 issued by the Government, the ends of justice will be substantially met if the accused respondent is sentenced to pay a fine of Rs. 1,000/- (Rs. One thousand) or in default to undergo rigorous imprisonment for two months. 7. Reliance was also placed on a decision of Hon'ble apex Court in the matter of Birbal v. State of Haryana, 2002 FAJ 157, wherein the conviction was for sample of milk reported adulterated and sentence was for a period of six months imprisonment and fine, the sentence of imprisonment was reduced to three months. 8. Reliance was also placed on a decision in the matter of N. Sukumaran Nairv. Food Inspector, Mavelikara, (1997) 9 SCC 101 , wherein the sample of ice cream purchased from the accused was found to be adulterated by Public Analyst and the accused was convicted. The Hon'ble apex Court held that 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. 1,000/-. 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. 6,000/- 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 matter by passing appropriate orders under clause (d) of section 433 of the Code of Criminal Procedure. 9. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of section 433 of the Code of Criminal Procedure. 9. Reliance was also placed on a decision in the matter of C. Mohammed v. State of Kerala, 2007 (2) FAC 275, wherein the sample of Moong dal' (black gram dal) was found adulterated and the accused was convicted under the provision of Prevention of Food Adulteration Act, Hon'ble apex Court observed that "Having regard to the facts and circumstances of the case that though the certificate issued by the Central Food Laboratory supersedes the report of the Regional Analytical Laboratory, it should be noticed that the first report showed the percentage only at 0.28 which was much below the prohibited percentage. In view of the aforesaid circumstances, we hold that the sentence of imprisonment be convicted into a sentence of fine and a sum of Rs. 10,000 is imposed as fine. The appellant to remit the fine so imposed within a period of two months from the date o(receipt of a copy of this order." 10. Further reliance was placed on a decision in matter of Narsingh v. State of M.P., 1997 (2) PFA Cases 272, wherein a milk vender was convicted for a sentence of one year with fine of Rs. 2,000, this Court held that since the petitioner has faced protracted trial for seven years, imprisonment is reduced to the period till rising of the Court. 11. Further reliance was placed on a decision in matter of Girwar v. State of M.P., 1995 (1) 65, this Court has held that in case of Prevention of Food Adulteration Act sentences can be reduced and only fine can be imposed for the special reasons to be recorded. It was further held that the petitioner was a young man of25 years at the time of occurrence and it was first offence and also the deficiency pointed by the chemical analyst of minor nature, therefore, the sentence of imprisonment was reduced to the period already undergone and the fine was enhanced from Rs. 2,000/- to Rs. 3,000/-. 12. It was further held that the petitioner was a young man of25 years at the time of occurrence and it was first offence and also the deficiency pointed by the chemical analyst of minor nature, therefore, the sentence of imprisonment was reduced to the period already undergone and the fine was enhanced from Rs. 2,000/- to Rs. 3,000/-. 12. Reliance was also placed on a decision in the matter of Santosh Kumar v. Municipal Corporation and another, AIR 2000 SC 3416 , wherein the conviction was based selling adulterated ground-nut oil and the offence took place in the year 1983, the Hon'ble apex Court held that the adulteration is only on account of marginal deficiency in constituents and no foreign substance or anything injurious to health found in sample, therefore, the accused was directed to deposit a sum of Rs. 10,000/- as fine in commutation of the sentence of six months imprisonment within a period of six weeks and intimate to the 'appropriate Government that such fine has been deposited. On deposit of the fine the State Government may formalize the matter by passing appropriate order under clause (d) of section 433 of the Code of Criminal Procedure. In the meanwhile the appellant will remain on bail. 13. Learned counsel for the State submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revisional jurisdiction a of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 14. From perusal of the record it is evident that both the Courts below concurrently found that the petitioner has committed offence for which the petitioner has been convicted. This Court is well aware about the limitation of this Court while exercising the revisional jurisdiction, which does not empower re-appreciation of evidence. Hence so far as conviction is concerned the judgment passed by the learned Courts below is maintained. 15. This Court is well aware about the limitation of this Court while exercising the revisional jurisdiction, which does not empower re-appreciation of evidence. Hence so far as conviction is concerned the judgment passed by the learned Courts below is maintained. 15. So far as the period of sentence is concerned, looking to the limited prayer made by the counsel for the petitioner and keeping in view the fact that the adulteration is only on the account of marginal deficiency in constituents and nothing injurious to health found in sample and also the petitioner is facing the trial since last long and also after taking into consideration the law laid down by Hon'ble apex Court and also by this Court, this Court is of the view that there is no reason as to why the sentence be not commuted in the present case. I accordingly direct that the petitioner shall deposit a sum of Rs. 25,000/- as fine in commutation of his sentence of six months RI (in addition of the fine of Rs. 1,000/- imposed on him). Petitioner shall sent an application to the State Government for commutation of his sentence of six months RI along with the copy of this judgment and receipt of Rs. 25,000/- deposited by him. On that application of the petitioner, the State Government may formalise the matter by passing approrpriate order under section 433 (c), Criminal Procedure Code. Till then petitioner shall remain on bail. However, in case the revisionist fails to deposit the amount of fine, as directed above, the shall serve out the sentence imposed upon him by the Magistrate. 16. With the aforesaid modification, the revision petition stands disposed of.