Gauhati High Court
Purna Chandra Dey vs State Of Assam on 12 February, 2004
Equivalent citations: 2005CRILJ55, (2004)3GLR582
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard Mr. J.M. Choudhury, learned senior counsel assisted Mr. S. C. Biswas, learned counsel for the petitioner. Also heard Mr. F. H. Laskar, learned PP, Assam.
2. This Criminal Revision has been directed against the judgment and order dated 31.5.96 passed by the learned Sessions Judge, Sonitpur, Tezpur in Criminal Appeal No. 5(S-2)/94. The appeal before the Sessions Court preferred by the petitioner was dismissed confirming the conviction of the petitioner under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (for short "The Act") and sentence to undergo RI for six months and to pay fine of Rs.. 1000 in default to further undergo RI for one month awarded by the learned CJM, Sonitpur, Tezpur in G.R. Case No. 279/88 by his judgment and order dated 25.3.94.
3. The prosecution case in a nutshell is that one Shri Sonaram Baruah, Food Inspector of Sonitpur, Tezpur lodged a complaint alleging inter alia that on 18.3.88 he accompanied by one Shri Lohit Chandra Rava, bearer of Mobile Laboratory, went to the hotel of the accused/petitioner and after disclosing their identity collected sample of 'Boondia Laddu\ on being suspected, from the hotel of the petitioner. After observing all the formalities, he thereafter divided the sample of Boondia Laddu into three equal parts and packed into three clean and dry polythene bags separately and sent one part of such sample with a copy of Memorandum in Form VII to the Public Analyst who after analysing the said sample forwarded a report with the opinion that the sample of Boondia Laddu (sweet) was artificially coloured with, non-permitted coal-tar colour Metanyl yellow. After receiving the said report, sanction was sought for from the Local Health Authority, Sonitpur and after obtaining such sanction from the concerned authority, the said Food Inspector lodged the complaint against the accused petitioner under the above mentioned sections of the Act. The accused petitioner also, having received, a copy of the report, of the Public Analyst, applied for examination of the part of the sample by the Central Food Laboratory. Accordingly, on analysis of the part of the sample, Central Food Laboratory also opined that the sample of Boondia Laddu was adulterated.
4. During the trial, the prosecution examined as many as two witnesses Food Inspector as P.W. 1 and Shri Lohit Chandra Rava, the Bearer, as P.W. 2. The Public Analyst was also examined as court's witness. The defence did not prefer to examine any witness on its side but duly cross-examined the witnesses of the prosecution. The trial court, on proper appreciation of the evidences on record as well as on close perusal of the documents placed, before it, found the petitioner guilty of the offence and convicted and sentenced by its order dated 25.3.94 as indicated above.
5. Feeling aggrieved by the aforesaid conviction, and sentence, the a petitioner as appellant brought the matter before the appellate court, i.e., learned Sessions Judge, Sonitpur at Tezpur who also on consideration of the facts and circumstances of the case and the materials available on record including the depositions of the witnesses in its entirety, upheld the conviction and sentence awarded by the trial court. Against this confirmation of conviction and sentence, the petitioner has preferred this revision petition.
6. Upon hearing learned counsel for the parties at length and on careful perusal of the evidences on record as well as impugned judgment and order, this court is of the view that the prosecution has been able to bring home the charges against the petitioner and there was no violation of any provision of the Act and Rules framed thereunder while convicting and sentencing the petitioner. It is admitted position that the "Boondia Laddu" collected from the possession of the hotel of the petitioner was adulterated as it was artificially coloured with non- , permitted coal-tar colour Metanyl yellow and the same was not fit for human consumption. Accordingly, this court does not find any illegality and/or irregularity to upset the impugned conviction and sentence so imposed by the trial court and confirmed by the learned appellate court.
7. At this stage, Mr. Choudhury, learned senior counsel has stated that since the occurrence took place in the year 1988 and the petitioner is also at present an ailing old person, it would not be appropriate to send him to jail to serve aforesaid sentence and in lien of the sentence, the court may impose a fine on the higher side by computing, the impugned sentence of imprisonment.
8. In. support of his submission, he has relied on the following decisions of the Apex Court as well as of this court: -
(i) Santosh Kumar v. Municipal Corporation and Anr. reported in (2000) 9 SCC151.
(ii) Hanuman Mal Jain v. State of'Assam 2003(1) GLT 617, and
(iii) Ranjit Kumar Sarkar v. State of Assam reported in (2003) 3 GLR 531.
9. In those judicial pronouncements, the sentence of imprisonment was converted to one of fine with a direction to the petitioner to deposit the fine amount within a stipulated period and also intimate regarding the deposit of such line to the appropriate authority of the State Government who may formalise the matter by passing appropriate order under Section 433 Cr.P.C. For the sake of convenience, Section 433 Cr.P.C. may be noticed as under:
"433. Power to commute sentence. - The appropriate Government may, a without the consent of the person sentenced, commute
(a) a sentence of death, for say 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 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."
10. From an ordinary reading of the above provision of law it appears c that power to the commutation of sentence is within the exclusive domain of the appropriate Government and the power to commute sentence can only be exercised by the said Government authority. In a recent decision in a case of State (Govt. of NCT of Delhi) v. Prem Raj reported in (2003) 7 SCC 121 the Supreme Court has categorically disapproved the commutation of sentence of imprisonment by the High Court holding that the power to commute sentence has been exclusively vested with the appropriate Govt. under Section 433 Cr. PC, and High Court has no power to pass such direction of commutation of sentence of imprisonment by converting it to one of fine and also for direction to intimate that deposit of such fine amount to the appropriate Govt., i.e., State Govt. which may formalise the matter by passing an appropriate order under Section 433 Cr. P.C.
11. In view of the above precedent, this court is not inclined to accept this submission advanced by Mr. Choudhury and accordingly the same stands rejected.
12. At this stage, Mr. Choudhury, the learned counsel for the petitioners, has submitted that the petitioner shall approach the appropriate Govt. i.e., State of Assam for the relief as if available under the law as envisaged under Section 433 Cr.P.C. but considering the facts and circumstances of the case, the court may be pleaded to fix a time frame for such purpose and| till then, since the petitioner has all along been on bail, the execution of the impugned sentence may be suspended. Submission is accepted. In the interest of justice, three months' time from to-day is granted and during such period the impugned sentence shall not be executed,
13. With the above observations and direction, this revision petition stands disposed of accordingly.