Om Prakash Vs. State (Nct) of Delhi  Insc 684 (5 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
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
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 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.