Himachal Pradesh High Court
Tilak Raj vs Of on 8 December, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.Revision No. 45 of 2008.
Date of decision: 08.12.2016.
Tilak Raj .......Petitioner.
Versus
of
State of Himachal Pradesh ......Respondent.
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr. Manoj Pathak, Advocate.
For the Respondent : Mr. Rupinder Singh, Additional Advocate General, with Mr. Pushpinder Singh Jaswal, Deputy Advocate General.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner by way of present revision petition under Section 397 read with Section 401 Cr.P.C. has assailed the impugned judgment passed by learned Additional Sessions Judge, Shimla, Camp at Rohru dated 16.1.2008 in Criminal Appeal No. 3-R/10 of 2005 whereby he dismissed the appeal filed by the petitioner and upheld the order of conviction and sentence as passed by learned trial Magistrate in Cr. Case No.69-3 of 2004 on 7.12.2004 convicting the petitioner under Section 16 (1)(a) (ii) of the Prevention of Food Adulteration Act, 1954 (for short 'Act') to undergo simple imprisonment for three months and to pay a fine of `500/- and in default thereof to undergo simple imprisonment for one month.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:42:17 :::HCHP 2
2. Brief facts giving rise to the present petition are that on 22.4.2004 at about 1.45 P.M. Food Inspector, L.D. Thakur, inspected .
the premises M/s Sharma Sweep Shop, Rohru and found the accused/petitioner conducting the business of the sweet shop and asked the accused/petitioner to produce P.F.A. licence for sale of food articles as required under Rule 50 of the P.F.A. Rules, 1955 (for short of Rules), but the accused failed to produce the same. The sanction was obtained from the competent authority and challan was filed before the rt learned trial Court for offence punishable under Section 16 (1) (a) (ii) of the Act read with Section 7 (iii) of the Act.
3. The learned trial Court after framing the charge, recording the prosecution evidence and statement of accused under Section 313 Cr.P.C., convicted the accused in the aforesaid manner.
4. Aggrieved by the judgment passed by the learned trial Magistrate, the petitioner approached the learned lower Appellate Court, but the appeal so preferred was dismissed vide judgment dated 16.12008.
5. Being aggrieved by the judgments passed by learned Courts below, the petitioner has filed the instant revision petition on various grounds taken in the memo of the revision petition. However, during the course of hearing, Mr. Manoj Pathak, Advocate, learned counsel for the petitioner fairly submits that he is not challenging the conviction of the petitioner on merits, but his only prayer is for issuance of direction to the State Government to consider the case of the petitioner for commutation of sentence. Learned counsel for the petitioner further submits that his client is not habitual offender and, therefore, his case for commutation of sentence can very well be ::: Downloaded on - 15/04/2017 21:42:17 :::HCHP 3 considered by the Government under Section 433 (d) Cr.P.C. In support of this plea, learned counsel for the petitioner has placed .
reliance on the decision of the Hon'ble Supreme Court in N. Sukumaran Nair vs. Food Inspector, Mavelikara (1997) 9 SCC 101, Santosh Kumar vs. Municipal Corporation and another (2000) 9 SCC 151.
of I have heard learned counsel for the parties and have gone through the records of the case carefully.
rt
6. As observed earlier, the petitioner was found to be selling the sweets without obtaining licence under Rule 50 of the Rules and while sitting in revision this Court is not inclined to disturb these findings, more particularly, when the same is not based on any illegality or infirmity.
7. So far as the commutation of sentence is concerned, Section 433 Cr.P.C. reads thus:
"433. Power to commute sentence. - The appropriate Government may, without the consent of the person sentenced, commute-
(a) a sentence of death, for any 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 for 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."
8. It is evidently clear from the aforesaid provision that the power to commute the sentence vests with the appropriate Government.
9. In the case of N. Sukumaran Nair's case (supra), the Hon'ble Supreme Court examined the matter pertaining to offence ::: Downloaded on - 15/04/2017 21:42:17 :::HCHP 4 under Sections 7 and 16 of the Act on the touch-stone of Section 433
(d) of Cr.P.C. and it was held as under:
.
"3. 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 CrPC, 'the appropriate government' is empowered to commute the sentence of simple imprisonment for fine. We think that this would be of 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, 6000/- (sic)as fine in commutation of the sentence of six months' simple imprisonment within a period of six rt weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the Stale Government may formalise the matter by passing appropriate orders under Clause (d) of Section 433 of the CrPC."
10. Similar reiteration of law can be found in Santosh Kumar vs. Municipal Corporation and another (2000) 9 SCC 151, Om Prakash vs. State (NCT) of Delhi (2007) 5 SCC 370 and Satya Narayan Agarwal vs. State of Assam (2007) 9 SCC 156.
11. Mr. Manoj Pathak, learned counsel for the petitioner submits that in the instant case also, the complaint was instituted as far as back on 21.5.2004 and the trial Court vide its judgment dated 7.12.2004 had convicted the petitioner and the petitioner thereafter has even closed down his business of selling sweets and presently is about 64 years of old and, therefore, sentence may be commuted in fine.
12. As per the ratio laid down by the Hon'ble Supreme Court in N. Sukumaran Nair's case (supra), I find that the present case is a fit case where the State Government should consider the commutation of sentence especially where more than 12 years have gone-bye.
However, in such circumstances, the petitioner cannot get away with a meager fine of `500/- as imposed by the learned trial Magistrate.
::: Downloaded on - 15/04/2017 21:42:17 :::HCHP 513. In the circumstances, fine is enhanced to `5,000/-, which shall be deposited by the petitioner in the trial Court as fine in lieu of .
commutation of the aforesaid sentence within a period of three months from today and intimate the appropriate Government that such fine has been deposited. On deposit of fine, the State Government will finalize the matter by passing appropriate order under Clause (d) of Section of 433 Cr.P.C. However, it is made clear that in case the petitioner fails to pay the amount, as directed, he would serve the sentence as imposed rt by the learned trial Court and confirmed in appeal.
14. With the aforesaid observations, the revision petition stands disposed of. Records of the Court below be sent back with a copy of this order forthwith for compliance.
December 8, 2016. (Tarlok Singh Chauhan) (GR) Judge.
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