(1.) THIS revision is directed against the judgment and order dated 17. 7. 2003 passed by the learned Addl. Sessions Judge No. 2, Sivasagar in Criminal Appeal No. 33 (3)/2000 dismissing the appeal.
(2.) ON 23. 3. 98 the Food Inspector collected samples of rice from the grocery shop of the accused petitioner Subodh Chandra Paul situated at Bhaju Chariali, Sonari Town. On analysis, the public analyst found the sample to be adulterated, as it did not conform to the standard laid down under the Act. The petitioner was thereafter tried by the Sub-Divisional Judicial Magistrate, Sonari in CR Case No. 687/98 and vide judgment dated 1. 9. 2000, the trial Court convicted the accused petitioner under Section 7 read with Section 16 of the PFA Act and sentenced to imprisonment for six months and to pay a fine of Rs. 3000/- , in default further imprisonment for two months.
(3.) FEELING aggrieved, the petitioner preferred Criminal Appeal No. 33 (3)/ 2000 before the Addl. Sessions Judge No. 2, Sivasagar and the appellate Court vide impugned judgment dismissed the appeal and affirmed the order of conviction and sentence and hence the present revision.
(4.) IN the present revision the only point urged by the learned counsel for the petitioner is regarding alleged non-compliance of the provisions of Section 13 (2) of the Act. The learned counsel for the petitioner has placed reliance on a recent decision of the Apex Court in the case of State of Orissa Vs. Gauranga Sahu, 2003 Cri. L. J. 3077 wherein the Apex Court has held as follows :
"it is argued on behalf of the accused that mere despatch of the report is not enough: and that the prosecution is further obliged to prove that the letter so despatched had reached the addressee, i. e. , that accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. Despatch of such a report is intended to inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory."
(5.) THE submissions regarding Section 13 (2) was considered by this Court in Criminal Revision No. 559/96 disposed of on 14. 6. 2004 wherein this Court held :
"4. The matter was considered by Full Bench of this Court in the case of
Ratanlal Agarwal Vs. State of Assam, reported in (
1993) 1 GLR 118 wherein, this Court held that the provisions of Section 13 (2) of the Act are directory in nature."
(6.) MR. Choudhury, learned senior counsel appearing for the petitioner has placed reliance on the decision of the Apex Court in the case of State of Orissa Vs. Gauranga Sahu, reported in 2003 Crl. L. J. 3077. The Apex Court observed :
"4. It is argued on behalf of the accused that mere despatch of the report is not enough; and that the prosecution is further obliged to prove that the letter so despatched had reached the addressee, i. e. , the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. Despatch of such a report is intended to inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory."
(7.) IN the case of K. Bhaskaran Vs. Sankaran, reported in (1999) 7 SCC 510 the Apex Court while considering the provisions of giving notices or receipt notices had this to say :
"18. On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address."
(8.) PROVISIONS of Section 27 of the General Clauses Act were also considered by the Apex Court in the earlier case of State of Madhya Pradesh Vs. Hira Lal, reported in (1996) 7 SCC 523, the Apex Court observed that where the respondent manages to have the notices returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively, it must be deemed that the notices have been served on the respondent.
(9.) PROVISIONS of Section 138 (b) N. I. Act, 1881 are similar and identical with the provisions of Section 13. 2 as quoted above and in the case of Sridhar M. A. Vs. Metalloy N. Steel Corporation reported in (2000) 1 SCC 397, the Apex Court held that in appropriate cases deemed service of notice may be accepted by the Court and this will depend on the facts of each case. "
(10.) ON considerations of the evidence both oral and documentary on record, we hold that the requirement under Section 13 (2) were complied with. Notices were sent to the petitioner vendor at proper address by registered post. The copy of notice and postal receipt is proved and exhibited as required under law. It is stated that the postal receipt does not contain full address and as such it many not be accepted. We find that the full address of the petitioner is mentioned in the notices and the postal receipt issued by the postal department the name of the person to whom it is addressed is mentioned. Non-mentioning of full address of the addressee in the postal receipt is not material or fatal to the prosecution in view of the proper address mentioned in the copy of the notice. We, therefore, hold that the provisions of Section 13 (2) of the Act has been complied with in this case and the petitioner is not entitled to any benefit on that count. In the result, we find no merit in this revision.
(11.) THE next submission of the learned counsel is in respect of sentence.
(12.) IT is submitted that the sample was collected in the year 1998 and long 6 years have passed and the petitioner has suffered both mentally and financially and as such the sentence of imprisonment may be substituted.
(13.) IN the case of N. Sukumaran Nair Vs. Food Inspector, Mavelikara, (1997) 9 SCC 101, the Apex Court held 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. 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 communication of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial Court a sum of Rs. 6,000 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. "
(14.) THE decision of N. Sukumaran Nair (supra) was reiterated in the case of Santosh Kumar Vs. Municipal Corporation, (2000) 9 SCC 151. Section 433, Cr. P. C. reads as follows :-
"433. Power to commute sentence.-The appropriate Government may, without the consent of the person sentence, commute- (a) A sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) A sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine; (d)A sentence of simple imprisonment, for fine."
(15.) FROM the above we find that the power to commute lies with the 'appro-priate Government'. The sentence imposed on the petitioner is the minimum sentence provided under the law and as such in view of the above provisions; we provide that the petitioner will be at liberty to approach the appropriate Government for relief, if any, in the above matter. The execution of sentence be kept in abeyance for a period of three months to enable the petitioner to approach the Govt. under Section 433, Cr. P. C.
(16.) THE revision petition stands dismissed as above.
(17.) SEND down the records to the Chief Judicial Magistrate, Sivasagar.