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CASE NO.: Appeal (crl.)  534 of 2001

PETITIONER: Om Prakash

RESPONDENT: State (NCT) of Delhi

DATE OF JUDGMENT: 05/06/2007

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

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      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 v. 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

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the benefit as given by this Court in N. Sukumaran Nair’s case  (supra) and Santosh Kumar v. 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.