Allahabad High Court
Majister Alias Budhpal vs State Of U.P. on 19 February, 2004
Equivalent citations: 2004CRILJ3523
Author: Umeshwar Pandey
Bench: Umeshwar Pandey
ORDER Umeshwar Pandey, J.
1. This Criminal Revision, under Section 397 and 403 of the Code of Criminal Procedure, has been directed against the judgment and order dated 20-8-1985 passed by the Sessions Judge, Pilibhit dismissing the appeal of the revisionist accused, Magister alias Budhpal.
2. The brief facts giving rise to this revision are that the accused in the morning of 23-11-1979 was found by P.W. 1 Kripal Singh Kambojh, the Food Inspector, selling cow & buffalo mixed milk. On the suspicion about the milk being adulterated, the Food Inspector purchased 660 ml. of milk and did spot formalities of preparing samples of the same for the purpose of its analysis. Three samples were prepared in separate containers. The documents exhibits KA-1 to KA-3 were also prepared. One of the samples taken was sent to the Public Analyst, Lucknow who after analysis sent his report exhibits KA-4, in which the milk taken from the revisionist accused was found 24% deficient in milk fat and 26% deficient in non fatty solids. After the receipt of this report, the Food Inspector obtained sanction of prosecution from the local Health Authority/Chief Medical Officer and the complaint was filed before the Magistrate.
3. The Magistrate concerned charged the revisionist accused for selling milk license under Section 7/16 of the Prevention of Food Adulteration Act read with Rule 50 Sub-rule (1) of the Prevention of Food Adulteration Rules and on the second count, the accused was charged for selling adulterated milk punishable under Section 7/16 of Prevention of Food Adulteration Act. The prosecution examined three witness and the defence in his support examined one witness.
4. The learned Magistrate, after having considered the entire material available on record, was of the view that the prosecution had succeeded in proving the guilt for the offence with which the accused revisionist was charged and accordingly recorded the order of conviction and sentenced him for the offence punishable under Section 7/16 of the Food Adulteration Act, to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/- in default of payment of which the revisionist was directed to further undergo rigourous imprisonment for two months. The accused was further sentenced for the offence punishable under Section 7/16 of the Food Adulteration Act read with Rule 50 Sub-rule (1) of the Food Adulteration Rules with rigorous imprisonment for a term of three months and pay a fine of Rs. 500/-, in default of payment of which he was directed to further undergo rigorous imprisonment for one month. Against this judgment of the trial Court, the appeal was preferred before the Sessions Judge who has ultimately decided it by the impugned judgment and the appeal was dismissed.
5. I have heard the learned counsel for the revisionist accused, Sri V.D. Ojha and also the A.G.A. appearing for the respondents.
6. Learned counsel for the revisionist instead of placing argument on the merits of the matter about the alleged commission of offences punishable under the relevant provision of the Food Adulteration Act and Rules and consequent sentence awarded against him, he has submitted the case law of Prem Chand v. State of U.P., 2002 (44) ACC 808, Roop Chand v. State of U.P., 2002 (44) ACC 809 and Maqbool Ahmad v. State of U.P. 1999 (39) ACC 758 : (2000 All LJ 1015). With the support of aforesaid proposition of law, the learned counsel submits that alleged offence took place as back as in the year 1979 in relation to which judgment of the trial Court was given in the year 1985 which was confirmed by the Appellate Court vide judgment dated 20-8-1985. This revision was preferred in the year 1985 and since then a period of about 19 years has been elapsed and as such, no purpose would be served by putting the revisionist accused behind, the bars at this juncture of time after 19 years during which period he has all along been on bail granted by this Court in the proceedings of the Criminal Revision.
7. The learned counsel has thus, submitted that on the facts and the circumstances of this case, the sentence of rigorous imprisonment, as awarded to the revisionist accused, may be converted into sentence of simple imprisonment and an option should be given to him to apply under Section 433(d) of the Code of Criminal Procedure to the State Government to commute the sentence of simple imprisonment for payment of fine. Such order of this Court would be appropriate and justifiable in order to avoid further sending the accused to go and suffer the sentence of imprisonment.
8. Section 433(d) aforesaid provides for commutation of sentence of simple imprisonment for fine by the appropriate Govt. in the leading case of N. Sukumaran Nair v. Food Inspector, Mavelikara reported in (1997) 9 SCC 101 : (1995 AIR SCW 3229) the Supreme Court in such circumstances provided such relief as being permissible to an accused. Para 3 of the judgment is extracted as below at page 3230, of AIR :
"The offence took place in the year 1984. The appellant has been awarded six months' simple imprisonment and 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 an appropriate ease 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. 6000 as fine in communication 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. In the case of Maqbool Ahmed v. State of U. P., (supra), learned Single Judge of this Court relying upon the aforesaid N. Sukumaran Nair v. Food Inspector, Mavelikara altered the sentence awarded in such a case of food adulteration to the accused to six months simple imprisonment and also directed the State Government that instead of sentence of actual imprisonment he would pay fine which shall be deposited within stipulated period and then he would move an application before the State Government which on receipt of such application shall formalize the matter under provisions of Section 433(d) of the Code of Criminal Procedure. The relevant paragraph 6 is extracted below at page 1018; of All LJ :
"I have considered the facts and circumstances of the present case and also the proposition of law as propounded in the above rulings and I find that offence took place in 1979. The Magistrate passed the sentence order in 1982 and the appeal was dismissed in 1983. The revision was filed in 1983 itself and it has now come up for hearing after more than 16 years. No useful purpose would be served by sending the accused revisionist to jail after such a long gap. In view of the above facts, the sentence of the revisionist (in Criminal Revision Nos. 1325 of 1983 and 1326 of 1983) is reduced to six months simple imprisonment in each case but instead of sentence of actual imprisonment, the revisionist is sentenced to a fine of Rs. 4,000/- (four thousand) in each case including the sentence of fine imposed by the learned trial Court with the direction to the revisionist to deposit the above amount in the trial Court within a period of three months and to apply before the State Government that the amount of fine has been deposited. The revisionist will move an application separately in each case along with the copy of the receipt and his order and the State Government on receipt of the application along with his order shall formalize the matter under the provisions of Section 433(d) of the Code of Criminal Procedure. On the compliance of the above order and deposit the revisionist need not surrender before the Courts below. It is further directed that in case revisionist fails to deposit the fine within a period of three months, he shall serve out the simple imprisonment to six months as ordered above separately in both the cases.
10. In the case of Prem Chand v. State of U.P. (supra) and Roop Chand v. State of U.P. (supra), learned Single Judge has also preferred to adopt the same view of the matter to provide benefit of alternative to the accused under Section 433(d) aforesaid for the purposes to avoid his further sufferance in jail, which in the circumstances of the aforesaid case was not justified.
11. Reduction of sentence, as awarded in such case under the Prevention of Food Adulteration Act is permissible vide judgment of the Apex Court in Haripada Das v. State of W. B. reported in (1998) 9 SCC 678 : (AIR 1999 SC 1482). The same view is expressed in the judgment of this Court in Chand Ali v. State of U.P. reported in (1999) 38 ACC 713 and it has been propounded that in view of Section 16 of Prevention of Food Adulteration Act, it is open to the Court to award rigorous imprisonment or simple imprisonment for a period of not less than six months.
12. In the aforesaid view of the matter and as the facts and circumstances available before me, I find that it would definitely not go to serve any purpose of the society and would also be against the humanitarian approach, if the present revisionist accused is sent to lock up to serve out the sentence of imprisonment. Instead an order directing conversion of his sentence of rigorous imprisonment into fine would permit him to avail the benefit of provision of Section 433(d) of the Code of Criminal Procedure and to avoid an occasion for further undergoing sentence of imprisonment. As such, the sentence of imprisonment, as awarded on both counts against the revisionist accused is converted into simple imprisonment and it is made open to him that on depositing a further sum of Rs. 4,000/- and Rs. 2,000/- respectively for the sentence of imprisonment awarded for the offences punishable under Section 7/16 of the Prevention of Food Adulteration Act and under Section 7/16 of Prevention of Food Adulteration Act read with Rule 50 (1) of the Food Adulteration Rules within a period of three months in the Court of concerned Magistrate, in addition to the sentence of fine already imposed upon him for the aforesaid offences, he would apply to the State Government under the provisions of Section 433(d) of the Code of Criminal Procedure along with copy of this order for commutation of his sentence for simple imprisonment. The State Government on receipt of such application along with the copy of the judgment shall formalize the matter under Section 433(d) of the Code of Criminal Procedure. In case the accused makes compliance of the aforesaid order, he would not surrender before the Court below but if he fails to deposit the aforesaid amount along with fine already imposed by the Trial Court within the aforesaid period, he shall surrender before the concerned Magistrate to serve out the sentence awarded; else the concerned Magistrate would ensure his arrest for that purpose.
13. The revision is disposed of, as above.