Suresh Chand vs State of U.P.

Bhagwan Din, J.—This Criminal revision has been directed against the judgment and order dated 2411983 passed by the Xth Addl. Sessions Judge, Agra, dismissing the appeal filed by the present revisionist and confirming the conviction and sentence awarded to him by the Munsif Magistrate, Agra.

Briefly stated facts giving rise to the present revision, are that on 1651977 at about 4 p.m. the Food Inspector, Sri P.D. Kain intercepted the revisionist while he was selling cowmilk at Namner crossing, the disclosed his identity and served a notice exhibiting his intention to purchase the milk for analysis. Then he purchased the milk and divided the sample in three equal parts, kept in three dry and clean bottles and scaled on the spot. He handed over one of the bottle to the present revisionist and prepared a memorandum of taking sample on the spot. The Food Inspector thereafter sent a sealed bottle containing sample to the Public Analyst, U.P. Lucknow for analysis and report and deposited the other one in the office of CM.O. Agra.

The Public Analyst reported mat the milk was adulterated because the fat solid and nonfat solid were found below the prescribed standard.

After obtaining the sanction from the CM.O., the Food Inspector instituted prosecution under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter called the Act'') against the revisionist. In order to establish the charges against the revisionist, the Food Inspector testified himself as PW1 and examined Nathu Ram, Assistant Sanitary Supervisor, Nagar Mahapalika, Agra as PW2.

The trial Court relying on the testimony of the above two witnesses, convicted the revisionist and sentenced him to a period of six months'' RI and also to a fine of Rs. 2,000. Against the order of conviction and sentence awarded to the revisionist, he filed an appeal before the Sessions Judge, Agra which ultimately came up for hearing Defore Xth Addl. Sessions Judge, Agra. After hearing the parties Counsel, the Addl. Sessions Judge dismissed the appeal and maintained the conviction and sentence awarded by the trial Court. Hence, the revision.

Learned Counsel appearing for the revisionist contended that the provisions of Section 7 (10) and 13 (2) of the Act have not been complied with.

It is now well settled the if the Food Inspector calls the public witnesses of the locality and none comes to witness the taking of the sample, the prosecution shall not vitiate. From the record, it is evident that after institution of the prosecution, the copy of the Analyst report was sent to the revisionist. Thus, the compliance of Sections 7 (10) and 13 (2) of the Act has been done in this case.

In view of the above discussions, the revision has no merit. It is accordingly dismissed.

At the end the learned Counsel for the revisionist urged that in view of the facts and circumstances of the case, a lenient view may be taken in converting the sentence of six months RI into a fine.

The Hon''ble Supreme Court in Badri Prasad v. State of M.K, 1996 SCC (Criminal) 79 and later on this Court in Chand Ali v. State of U.P, 1999 (38) ACC 713, has held that having regard to the facts and circumstances of the case and the nature of accusation the conversion of the rigorous imprisonment awarded by the Magistrate into simple imprisonment may be made.

I, therefore, convert the sentence of six months'' RI into six months simple imprisonment. Section 433 (d) Cr PC provides that the State Government may be approached for conversion of simple imprisonment into a fine. I, therefore, direct the State Government to convert the simple imprisonment into a fine of Rs. 5,000 and direct the revisionist to deposit Rs. 5,000 in the Court, on this count together with mandatory fine of Rs. 2,000 awarded by the trial Court. The trial Court shall inform the State Government of the deposit of the fine of Rs. 5,000. In case the revisionist fails to deposit Rs. 5,000 + Rs. 2,000 in the Court within three months from today, he shall undergo a simple imprisonment fora period of six months.