1. This revision has been preferred against judgement dated 27.2.2012 passed by Additional Chief Judicial Magistrate, Ghazipur in criminal case no. 2091 of 2004 (State Vs. Shankar Shah and others) under Section 7/16 of Prevention of Food Adulteration Act, P.S. Mardah, Ghazipur and the judgment dated 26.7.2016 passed by Additional Session Judge, Court No. 6, Ghazipur.
2. Heard learned counsel for the revisionist, learned AGA and perused the records.
3. The revisionist was charged for offence under Section 7/16 Prevention of Food Adulteration Act for selling the edible articles (namkeen), which was found adulterated, inter alia, with Khesari, and also for not complying mandatory legal directions required for selling such articles. Trial court had afforded opportunity of hearing to the complainant side as well as accused/revisionist and thereafter reached to the conclusion that at the time of charged incident, revisionist, Shankar Shah @ Shankar Shahu was selling adulterated edible articles (namkeen dalmot),and also without complying mandatory directions regarding packaging and printing of information that should be mentioned on the packing of edible items. After giving conclusion on facts, trial court had also considered the compliance of rules and procedure being carried out by Food Inspector since before initiation of proceedings of prosecution till conclusion of trial, and found that prosecution side had not committed any illegality or procedural irregularity and proved its case on facts of the charge, about prosecution sanction and about affording opportunity to accused to adduce his proper defence. Thereafter trial court had passed order of conviction. After that learned Magistrate had afforded opportunity of hearing to the accused on the point of quantum of sentence and then passed sentence of simple imprisonment of one year with fine of Rs. 2,000/- (in default of payment of fine, one month further imprisonment).
4. Against the judgement of trial court, criminal appeal no. 25 of 2012 (Shankar Shah @ Shankar Shahu Vs. State of U.P. and another) was preferred, which was heard and dismissed by the judgement dated 26.7.2016 of Addl. Sessions Judge, Court no.-6, Ghazipur. In this judgment, lower appellate court had also considered the evidences including the facts relating to report of Government Public Analyst regarding adulteration found in the edible articles sold by revisionist, non-compliance of mandatory provisions regarding packaging and printing of information, prosecution sanction and other technical points. After considering the legal, technical and factual aspects of the matter, lower appellate court had found that judgment of trial court is not erroneous. First appellate court had also considered those arguments of appellant side that he was not afforded proper opportunity to place his defence and gave specific finding that during statement under Section 313 CrPC all relevant questions relating to prosecution case and relevant evidences of prosecution side were put to revisionist/accused, and that he was afforded proper opportunity of hearing. Learned appellate court had considered that revisionist/ accused had option of sending another sample to Government Public Analyst for testing, but he had not opted for the same. By appreciating the evidences independently the lower appellate court had confirmed the finding and judgment of trial court. Appellate court had also considered the aspect that revisionist is a old man and he has certain difficulty in movement and his daily affairs inspite of it appellate court had not changed the judgment of learned Magistrate.
5. Considering the above facts and circumstances including evidence of the parties, there appears no factual legal or procedural illegality or irregularity in the proceedings carried out before the trial court as well as lower by appellate court. There appears no infirmity in concurrent findings of facts of the two courts below about the correctness of the charge. It is found that the judgment of conviction by the courts below is found without any error, therefore the judgment of conviction is hereby confirmed.
6. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime. The justice includes adequate punishment cannot be lightly ignored. For this reason the provisions of sections 235(2) and 248(2) have been incorporated in the Code of Criminal Procedure. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
7. In present matter lower courts had not properly appreciated the point of sentence to be awarded to accused/ revisionist. Considering the old age of revisionist who is senior citizen it appears appropriate that instead of remanding the matter for affording proper opportunity of point of sentence, either to trial or to appellate court, proper sentence should be passed by this court.
8. This contention of learned counsel for the revisionist requires consideration that in spite of revisionist being old man having difficulty in movement and daily affairs, he was given harsh punishment. First appellate court had also discussed these points about the age etc. of the revisionist, who had not given any reason as to why punishment of one year simple imprisonment is appropriate. This point is being considered by this Court. At the time of passing judgment, revisionist/ accused was old man and as per copy of the voter I.D. card of revisionist, his age on 1.1.2001, was about 57 years; therefore at this stage his age should be about 73 years. Lower appellate court had found him ailing and unable to move properly. Considering his old age, ailment and physical inability due to which there may be possibility of not repeating such acts again, this Court is of the opinion that for these reasons minimum punishment would serve to the accused/revisionist would serve the ends of justice, which is imprisonment of six months and fine of Rs. 1,000/-.
9. For the reasons above, the conviction awarded to revisionist Shankar Shah @ Shankar Shahu by trial court as well as lower appellate court is hereby confirmed, but sentence is modified to six months simple imprisonment with fine of Rs. 1,000/-, and in default of payment further imprisonment of one month. Accordingly, this revision is partly allowed.
Order Date :- 4.8.2016/Sanjeev