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2010 DIGILAW 182 (MP)

Umesh Kumar v. State of M. P.

2010-02-11

N.K.MODY

body2010
JUDGMENT : N.K. Mody, J. - Being aggrieved by the judgment dated 15.10.2004 passed by ASI. Pichor, District Shivpuri in criminal appeal No.303/2000 which is arising out of judgment dated 10.11.2000 passed by ACJM, Pichor, District Shivpuri in Criminal Case No.380/1996 whereby the conviction of petitioner for the offence punishable under Section 7(1) read with Section 16(1)(A)(1) of Prevention of Food Adulteration Act and sentenced to undergo imprisonment of six months with fine of Rs.2,000 on each count, was maintained, the present revision petition has been filed. 2. Petitioner was prosecuted by the respondent under the provision of Prevention of Food Adulteration Act, 1954 (which shall be referred hereinafter as an Act), alleging that on 21.5.1996 when Food Inspector, inspected the shop of petitioner situated at Shivpuri and purchased Wheat which was for sale. It was alleged that the sample was taken and after the report of analyst it was found that Wheat was adulterated. It was prayed that the petitioner be convicted. After the trial it was found that Wheat which was in possession of the petitioner was adulterated. Hence the petitioner was convicted and was sentenced as mentioned above and in appeal the conviction was maintained, hence this 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 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. Learned Counsel submits that the conviction and sentence be set-aside. 4. In alternative learned Counsel submits that petitioner was in jail w.e.f. 15.10.2004 and the jail sentence was suspended by this Court vide order dated 29.10.2004 and thereafter petitioner was released. It is submitted that looking to the nature of offence and the fact that petitioner has already served part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced. It is submitted that looking to the nature of offence and the fact that petitioner has already served part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably 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. 1999(2) EFR 337:1999(11) MPWN. Note 76, where in the accused was punished for a period of six months was reduced to the sentence of 37 days for the period which already undergone and fine was enhanced to Rs. 5,000. In the matter of State of M.P. v. NanhelaP 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 convicted 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. In the matter of Municipal Corporation, Indore v. Narpat Singh 991 (II) MPWN Note 131, 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. 5. Reliance was also placed on a decision of Hon'ble Apex Court in the matter of Birbat v. State of Haryana 2002(1)FAC 165, 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. 6. Reliance was also placed on a decision in the matter of N. Sukumaran Nair v. Food Inspector, Mavehkara (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. 6. Reliance was also placed on a decision in the matter of N. Sukumaran Nair v. Food Inspector, Mavehkara (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. 7. Reliance was also placed on a decision in the matter of C. Mohammed v. State of Kerala 2006(13) SCC 290, 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 converted 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 of receipt of a copy of this order. 8. In view of the aforesaid circumstances, we hold that the sentence of imprisonment be converted 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 of receipt of a copy of this order. 8. Reliance was placed on a decision in the matter of Narsingh v. State of M.P. 1997(2) PFA Cases 274, 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. 9. Further Reliance was placed on a decision in the matter of Girwar v. State of M.P. 1995(1) FAC 65, this Court has held that in cases of Prevention of Food Adulteration Act sentence 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 of 25 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. 10. Reliance was also placed on a decision in the matter of Santosh Kumar v. Municipal Corporation and another AIR 2000 SC 3416 : 2001(1) EFR 14, 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 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. 11. On deposit of 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. 11. 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 of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 12. 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. 13. 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 looking to the age of the petitioner 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.10,000 as fine in commutation of his sentence of six months RI (in addition of the fine of Rs.2,000 imposed on him) within a period of two months. Petitioner shall send 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. 10,000 deposited by him. On that application of the petitioner, the State Government may formalize the matter by passing appropriate order under Section 433 Cr.P.C. Till then petitioner shall remain on bail. However, in case the revisionist fails to deposit the amount of fine, as directed above, he shall serve out the sentence imposed upon him by the learned Court below. On that application of the petitioner, the State Government may formalize the matter by passing appropriate order under Section 433 Cr.P.C. Till then petitioner shall remain on bail. However, in case the revisionist fails to deposit the amount of fine, as directed above, he shall serve out the sentence imposed upon him by the learned Court below. It is made clear that in case of arrest, if the petitioner fails to deposit the amount, then petitioner shall be further liable to pay fine @ Rs.100 per day and shall be released forthwith, upon depositing the fine, if not required in any other case. Petitioner is on bail. His bail bonds stands discharged. 14. With the aforesaid modifications, the revision petition stands disposed of. Petition disposed of with observations.