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2012 DIGILAW 133 (CHH)

ISHWARLAL GADARIA v. STATE OF M. P.

2012-05-07

T.P.SHARMA

body2012
ORDER 1. By this revision petition the applicant has challenged legality and propriety of the judgment dated 10.2.2000 passed by the Second Additional Sessions Judge, Rajnandgaon, in Criminal Appeal No. 188/96, affirming the judgment of conviction and order of sentence dated 14.8.1996 passed by the Chief Judicial Magistrate, Rajnandgaon, in Criminal Case No. 1054/95, whereby the trial Court after holding the applicant guilty for the offence punishable under Sections 16(1) (1-A) and 16(1) (1-B) of the Prevention of Food Adulteration Act, 1954 (for short "the Act') sentenced him to undergo R.I. for six months and fine of Rs.1 000/-, in default of payment of fine to further undergo S.I. for three months on each count. 2. I have heard learned counsel for the parties, perused the judgment impugned, judgment of the trial Court and records of the Courts below. 3. As per case of the prosecution, on 7.1.85, Food inspector V.KJain (PW-1) has purchased the sample of milk after showing his intention of analysis and after complying the procedure he has sent the sample for analysis. As per report of analysis report Ex.P/6 dated 22.11.1985 sample was found adulterated. Prosecution was launched. The applicant has exercised his right under Section 13(2) of the Act. Second sample was sent for analysis, which, was broken and damaged. During the course of trial third sample was also sent and same was found adulterated. After trial the trial Court has convicted and sentenced the applicant as aforementioned, which has been affirmed by the revisional Court. 4. After arguing the matter sometime, learned counsel for the applicant submits that as per para 8 of evidence of Food Inspector V.K. Jain (PW-1), the applicant is not regular milk seller, he is not by caste Yadav, he is by caste Gadriya. Learned counsel further submits that the applicant is a rustic villager and a petty milk seller. Learned counsel by placing reliance in the matter of Satya Narayan Agarwal Vs. State of Assaml contends that the benefit extended to the accused in Satya Narayan case (supra) be extended to the applicant. 5. On the other hand, learned Penal Lawyer for the State opposes the revision. 6. Considering the peculiar facts and circumstances of the case, I am of the view that the benefit extended by the Supreme Court in the matter of Satya Narayanl (supra) should be extended to the applicant. 5. On the other hand, learned Penal Lawyer for the State opposes the revision. 6. Considering the peculiar facts and circumstances of the case, I am of the view that the benefit extended by the Supreme Court in the matter of Satya Narayanl (supra) should be extended to the applicant. In para 9 of its judgment, the Supreme Court has held thus, "9. In N. Sukumaran Nair v. Food Inspector, Alavelikara (1997(9) SCC 101) this Court observed as follows : "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. In the light of dictum of the Supreme Court in Satya Narayan: case (supra), the revision is partly allowed. Conviction of the applicant under Section 16(1) (1-A) and 16(1) (1-B) of the Act is hereby maintained. However, sentence imposed upon him is modified. He is hereby sentenced to pay fine of Rs. 5,000/-, in default additional S.I. for three months on each count (Total Rs. 10,000/-), with a condition that if the applicant files application before the Court below that he will file appropriate application before the appropriate Government under clause (d) of Section 433 of the Cr.PC for commutation of sentence within thirty days and files such application within sixty days from today, and furnishes personal bond of Rs.l0,000/- with a solvent surety of like amount, then he be released till the order of the appropriate Government. In case of non-compliance of this order or rejection of the application by the appropriate Government, the applicant shall surrender himself and suffer the sentence imposed upon him by the trial Court. In case of non-compliance of this order or rejection of the application by the appropriate Government, the applicant shall surrender himself and suffer the sentence imposed upon him by the trial Court. Sentence modified.