2007 ALL SCR 1741
SUPREME COURT

D.K. JAIN AND A. PASAYAT, JJ.

Om Prakash Vs. State (Nct) Of Delhi

Criminal Appeal No.534 of 2001

5th June, 2007

Prevention of Food Adulteration Act (1954), S.7(1) r.w. S.16 - Criminal P.C. (1973), S.433(d) - Commutation of sentence - Milk fact in food product made from milk was 19.07% instead of prescribed 20% - Offence took place in 1984 and margin of variation was very small - Accused had already suffered custody for more than three months - Accused directed to deposit Rs.7,500/- as fine and directed him to move Government for commutation of custodial sentence - In the meantime accused to remain on bail. (Para 5)

Cases Cited:
N. Sukumaran Nair Vs. Food Inspector, Mavehkara, 1997(9) SCC 101 [Para 3,4]
Santosh Kumar Vs. Municipal Corporation, 2000(9) SCC 151 [Para 4]


JUDGMENT

Dr. ARIJIT PASAYAT, J . :- Challenge in this appeal is to the order passed by a learned Single Judge of the Delhi High Court dismissing the Criminal Revision petition filed by the appellant. The learned Metropolitan Magistrate, New Delhi had found the accused-appellant guilty of offences punishable under Section 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954 (in short 'the Act'). He had sentenced him to undergo imprisonment for six months and to pay a fine of Rs.2,000/- with default stipulations. An appeal was carried and the learned Additional Sessions Judge, New Delhi, in Criminal Appeal No.61 of 1999, dismissed the same holding that the offence was made out. As noted above, a revision petition was filed before the High Court which was dismissed summarily.

2. Background facts in a nutshell are as follows :

On 27.11.1984, the Food Inspector purchased a sample of Khoya from the appellant. The Public Analyst found that the milk fat of the finished product was 19.07% as against the minimum prescribed standard of 20%. The appellant exercised his right under Section 13(2) of the Act. The appellant faced trial. As noted above, the Metropolitan Magistrate convicted the appellant and sentenced him. The appeal filed before the learned Additional Sessions Judge, New Delhi, was dismissed. A stand was taken before the learned Additional Sessions Judge that in view of several decisions of this Court, there should be commutation of sentence. The learned Additional Sessions Judge held that the commutation of sentence under Section 433 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.') was a matter within the discretion of State Government. The appellant filed criminal revision which was dismissed, as noted above.

3. Learned counsel for the appellant submitted that the High Court, by a non-reasoned order, dismissed the revision petition, though in similar cases it had passed orders following the decision of this Court in N. Sukumaran Nair Vs. Food Inspector, Mavehkara (1997(9) SCC 101). Learned counsel for the respondent submitted that the exercise of power under Section 433, Cr.P.C. is discretionary and no direction can be given to commute the sentence.

4. Learned counsel for the appellant made a plea for affording the benefit as given by this Court in N. Sukumaran Nair's case (supra) and Santosh Kumar Vs. Municipal Corporation and Anr. (2000(9) SCC 151). The plea is made on the ground that the occurrence took place in 1984 and the margin of variation is very small.

5. It is pointed out that the appellant has already suffered custody for more than three months. We direct that a sum of Rs.7,500/-, as fine, be deposited within a period of six weeks from today. The appellant shall move the appropriate Government for commutation of the custodial sentence. On the deposit of the above amount being made within the stipulated time and the appropriate application being made the State Government may consider whether commutation can be done in view of the peculiar facts of the case by passing an appropriate order under Clause (d) of Section 433 of the Cr.P.C. In the meantime, the appellant shall remain on bail.

6. With this end result, the appeal stands disposed of.

Order accordingly.