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CASE NO.: Appeal (crl.)  629 of 2007

PETITIONER: Satya Narayan Agarwal

RESPONDENT: State of Assam

DATE OF JUDGMENT: 26/04/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     629            OF 2007 (Arising out of SLP (CRL.) No.2033 OF 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the judgment rendered  by a learned Single Judge of the Guwahati High Court  dismissing the revision petition filed by the appellant.  

3.      Background facts in a nutshell are as follows:

4.      The appellant was found guilty of offences punishable  under Section 7 read with Section 16(1) of the Prevention of  Food Adulteration Act, 1954 (in short the ’Act’) by the trial  Court. First Appellate Court dismissed the appeal. The  revision, as noted above, was dismissed by the High Court.  

5.      Background facts in a nutshell are as follows:

       On 20.5.1987 the Food Inspector collected sample of  chilli powder from the shop of the appellant. The sample  was sent for analysis to the prescribed laboratory and on  such analysis it was found to be adulterated. The appellant  was tried. On conclusion of the trial, the trial Court  convicted the appellant for offences punishable under  Section 7 read with Section 16(1) of the Act and sentenced  him to imprisonment for six months and to pay a fine of  Rs.1,000/-.  

6.      An appeal was preferred before the learned Sessions  Judge, Dibrugarh, which was dismissed. As noted above,  the revision before the learned Single Judge was also  dismissed.  

7.      Learned counsel for the appellant re-iterated the  submissions made before the courts below and submitted  that it is a case of misbranding and, therefore, it is not a  case where minimum sentence is to be imposed. The High  Court did not accept the contention. It was of the view that  it is not a case of misbranding. Additionally, it was

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submitted that the High Court should have directed release  of the appellant on probation, or instead of custodial  sentence, sentence of fine could have been imposed.  

8.      Learned counsel for the respondent-State on the other  hand supported the judgment. It is to be noted that the  High Court found that there was no scope for interference.  However,   it enhanced the fine to Rs.5,000/- and permitted the  appellant to move the State Government under Section 433  of the Code of Criminal Procedure, 1973 (in short the  ’Code’).  

9.      In N. Sukumaran Nair v. Food Inspector, Mavelikara  (1997 (9) SCC 101) this Court observed as follows:

       "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.1,000/.  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  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 as fine in  commutation 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."

10.     In Santosh Kumar v. Municipal Corporation and Anr.  (2000 (9) SCC 151), similar view was expressed in the  following terms:

       "We, therefore, direct the appellant to  deposit in the trial court a sum of  Rs.10,000/- as fine in commutation of the  sentence of 6 months’ imprisonment within  a period of 6 weeks from today and intimate  to the appropriate Government that such  fine has been deposited. On deposit of the  fine the State Government may formalize  the matter by passing appropriate order  under clause (d) of Section 433 of the Code  of Criminal Procedure. In the meanwhile  the appellant will remain on bail."

11.     It is to be noted that in both the cases there was no  direction to formalize the sentence. On the other hand it  was clearly noted that the State Government may formalize  the sentence. It is pointed out by learned counsel for the  respondent that an application in terms of Section 433 of  the Code was made which has been rejected.  

12.     We find no merit in this appeal which is accordingly

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dismissed. However, the appellant, may, if so advised,  challenge the order stated to have been passed by the State  Government under Section 433 of the Code.