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2008 DIGILAW 2650 (RAJ)

Mahesh Kumar Agarwal v. State of Rajasthan

2008-12-03

MAHESH CHANDRA SHARMA

body2008
Hon ble SHARMA, J.—S.B. Cr. Revision Petition against the Order dated 30.10.1999 passed by the Special Judge, (Communal riots/Man Singh Hatyakand), Jaipur in Cr. Appeal No. 95/99 whereby he confirmed the judgment dated 8.3.95 passed by Chief Judicial Magistrate, Jaipur in Criminal Case No. 799/88 by which the petitioner has been convicted under Section 7/16 of the Prevention of Food Adulteration Act and has been sentenced to 1 years simple imprisonment and fine of Rs. 5000/-, in default of payment of fine to undergo 3 months simple imprisonment. (2). The brief facts of the case in nutshell are that the petitioner was tried for an offence Under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") 1954 on the ground that, on 23.4.88, one Sh. K.C. Verma P.W.1 the Food Inspector has taken a sample of Dhaniya which was found to be adulterated. The Chief Judicial Magistrate, Jaipur convicted the petitioner as aforesaid vide his order dated 8.3.1995, against which, he filed an appeal before the Special Judge, (Communal riots/Man Singh Hatyakand), Jaipur who vide his order dated 30.10.99 confirmed the order passed by the Chief Judicial Magistrate. Feeling aggrieved by the aforesaid judgment and orders passed by both the court below, the petitioner prefers the present revision petition before this Court. (3). In this revision petition, Mr. O.P. Mishra Advocate for Mr. M.M. Ranjan Advocate appearing on behalf of the petitioner has contended that the appeal filed by the petitioner decided by the appellate court was in his absence. According to him, a criminal appeal cannot be decided without hearing of appellant. No amicus curia was appointed at the time of hearing of the appellant. He has further contended that PW. 1 Sh. K.C. Sharma was not competent to take sample from the shop of the petitioner because a notification was issued by the Govt. of Rajasthan Ex. EA in which name of PW.1 Sh. K.C. Sharma was not found. Ultimately, he has prayed that the matter should be decided in the light of the judgment delivered by the Apex Court in N. Sukumaran Nair vs. Food Inspector, reported in (1997) 9 SCC 101 = RLW 1996(1) SC 15 wherein their Lordships of the Supreme Court held in Para No. 3 of its judgment as under:- "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 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 ab 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." (4). Mr. B.N. Sandu Public Prosecutor has opposed the arguments advanced by the counsel for the petitioner. (5). I have heard learned counsel for both the parties and perused the judgment passed by both the courts below. I have also gone through the record of the case available with me. (6). In this case, the offence took place in the year 1988. The petitioner has been awarded one year Simple Imprisonment and also ordered to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo 3 months Rigorous Imprisonment. 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. I think, it would be an appropriate case for commutation of sentence where almost a decade has gone by. The petitioner is facing trial since last 20 years which tantamount to mental agony, he remained in Judicial lock up, the age of the accused petitioner is more than 56 years having marriageable children and he is the head of the family. (7). For these reasons, I direct the appellant to deposit in the trial court a sum of Rs. 20,000/- as fine in commutation of sentence of one year simple imprisonment within a period of 6 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 an appropriate order under clause (d) of Section 433 Cr.P.C. (8) In the result, this revision petition shall stand disposed of.