This Criminal Revision has been filed against the judgment and order dated 28.06.2011 passed by the Additional Sessions Judge, Court No.1, Farrukhabad in Criminal Appeal No. 26 of 2009 ( Ram Lal and another Vs. State of U.P.) convicting the revisionists under Section 7/16 of Prevention of Food Adulteration Act, 1954, Police Station, Fatehgarh district, Farrukhabad, whereby, the revisionists have been sentenced to undergo one year rigorous imprisonment with a fine of Rs. 2000/- each with default stipulations.
Briefly stating the facts necessary for disposal of this revision are that on 19.02.2005 at about 1.00 pm., near District Jail chauraha, Fatehgarh-Kanpur road, the Chief Food Inspector inspected the shop of revisionist-Vipin Kumar(owner of the shop) and Ram Lal @ Pappu-(an employee thereon), were present and on the suspicion that they were making adulteration in the mustard oil, the Food Inspector collected sample of mustard oil of about 375 gram for analysis and distributed the same in three equal quantity, put the samples in 3 different bottle and sealed them and thereafter, send the same for analysis to Public Analyst, Lucknow through registered parcel. After receipt of the chemical examination report about adulteration, sanction from the Chief Medical Officer for prosecution was obtained and the complaint was filed by the concerned Food Inspector before the Court. The revisionists appeared before the learned Magistrate and their statements were recorded. Charges were framed to which, they denied and pleaded false implication.
The prosecution in support of its case has examined N.R. Pandey, Food Inspector as P.W.1, Sarvesh Kumar, Food Clerk as P.W.2. No other witness was produced from the side of the prosecution.
The revisionists in their statements under Section 313 Cr.P.C. denied the charges and stated that they have been falsely implicated by the complainant for the reason that he refused to oblige him.
In the interest of justice, this Court desist myself to canvass on the merit and demerits of the present case, but feels it necessary to note peculiar facts emerged in this case at the time of hearing this revision on 12.01.2021.
This revision was admitted on 14.07.2011. While admitting the revision, this Court granted bail to the revisionists, stayed the realisation of the fine and summoned the Trial Court record. Thereafter, for the first time, this revision was listed on 13.01.2017 and since then, this revision was passed over either on the illness slip of learned Counsel for the revisionist or for some other reason. Ultimately, on 23.1.2020, this Court passed following order;
"Case called out in the revised list. No one appears for the revisionists.
The revisionists were granted bail vide order dated 14.07.2011 passed by another Bench of this Court and the realization of fine as imposed was also stayed. After that the matter was listed on 13.01.2017, 20.01.2017, 22.07.2019, 01.08.2019, 12.09.2019, 21.10.2019, 05.11.2019 and there has been an illness slip continuously on every date of Sri Rajeev Kumar Singh Parmar, learned counsel appearing for the revisionists.
Learned A.G.A is present for the State.
Issue non bailable warrants again the revisionists through the Chief Judicial Magistrate, Farrukhabad.
Let the matter be listed after three weeks' with a report of the C.J.M, Farrukhabad."
In compliance of the aforesaid order, the revisionists were arrested, produced before the Chief Judicial Magistrate, Farrukhabad and were sent to Jail on 08.02.2020 and since then they are languishing in jail.
Today, while arguing the matter, learned Counsel for the revisionists comes up with the prayer that the revisionists have served the sentence for than 11 months as they are in jail since 08.02.2020 and therefore, now he pressed this revision to modify the sentence to the extent already undergone in prison by the revisionists.
Heard learned Counsel for the revisionists and learned AGA, perused the record and have gone through the impugned judgment and order.
Learned AGA has submitted that the offence against the accused-revisionists was fully established on the basis of evidence produced before the Courts below, but if the sentence awarded to them is reduced, modified, he would have no objection as the revisionists out of one year sentence have already served for more than 11 months.
In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
" Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The subculture that leads to ante social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low.
While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality.
In the decision Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463. 12. In Kokaiyabai Yadav vs State of Chhattisgarh (2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrong doing, are able to comprehend their acts,have grown and natured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.
The judicial focus in our country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.]\ In view of above discussions, it can be said that in the country like ours, the reformative and corrective approach has been adopted in criminal justice administration. Learned A.G.A. has submits that there is no criminal history of the accused-revisionists. There is nothing on record to show that the accused-revisionist are incapable of being reformatted. The accused- revisionists are in jail for substantial period w.e.f. 08.02.2020 and as such they have been in jail since more than 11 months. In my opinion, every convict is entitled for the advantage of reformative and corrective jurisprudence and in view of this Court, if the sentence is reduced by period already undergone looking to the detention of the revisionists in jail, no harm will be caused and the purpose of justice will be served.
In view of the above, the sentence under Section 7/16 of Prevention of Food Adulteration Act, which is for one year is reduced by period already undergone and as the revisionist have already served for more than 11 months, the fine is reduced from Rs.2,000/- to that of Rs.500/- each, which shall be deposited by the revisionists and in default of payment of fine, they shall undergo simple imprisonment for 10 days.
Accordingly, the judgment of conviction is upheld with the above modification in the quantum of sentence. The revisionists are in jail. They be set at liberty forthwith, if not wanted in any other case.
The revision is accordingly disposed of finally.
Office is directed to send the copy of this judgment to the court concerned for information and necessary action forthwith.
Order Date :- 12.1.2021 Shahid