Satya Narayan Agarwal v. State Of Assam .

Dr. Arijit Pasayat, J.— Leave granted.

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

3. Background facts in a nutshell are as follows:

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. The first appellate court dismissed the appeal. The revision, as noted above, was dismissed by the High Court.

4. On 20-5-1987 the Food Inspector collected a 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 1000.

5. 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.

6. Learned counsel for the appellant reiterated 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 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.

7. 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 5000 and permitted the appellant to move the State Government under Section 433 of the Code of Criminal Procedure, 1973 (in short “the Code”).

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

“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 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 formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure.”

9. In Santosh Kumar v. Municipal Corpn. (2000) 9 SCC 151 similar view was expressed in the following terms:

“6. 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 formalise 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.”

10. It is to be noted that in both the cases there was no direction to formalise the sentence. On the other hand, it was clearly noted that the State Government may formalise 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.

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