Amitava Roy, J.
1. By this revision petition, the petitioner has challenged the legality and validity of the judgment and order dated 10.7.1997 passed by the learned Sessions Judge, Kamrup, Gauhati in Crl. Appeal No. 7/96 dismissing the same and affirming the judgment and order dated 9.1.96 passed by the learned Chief Judicial Magistrate, Kamrup, Gauhati in Case No. 1246C/93 convicting the petitioner under Section 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') and sentencing him to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 2000 in default R.I. for 3 months.
2. This court by order dated 14.8.97 admitted the revision petition and under the same order while suspending the impugned judgment dated 9.1.1996 passed in Case No. 1246C/93 granted bail to the petitioner.
3. I have heard learned counsel Mr. Bhati, for the petitioner and the learned PP, Assam.
4. The prosecution case in short is that on 21.9.1993 Shri Hiren Gogoi, Sr. Food Inspector, Kamrup, Gauhati inspected the whole sale grocery shop of M/s Navneet Enterprises Pvt. Ltd. Fancy Bazar, Gauhati of which at the relevant time, the accused petitioner was the Manager. The Food Inspector, after observing necessary formalities collected the sample of chana whole. The sample was sealed and packed and then sent to the Public Analyst to the Govt. of Assam, who later found the sample to be adulterated. Accordingly, the offence report was submitted against the petitioner and others for standing trial under Section 7(1) read with Section 16 of the Act. At the conclusion of the trial, the petitioner was convicted and the other accused persons were acquitted,
5. The petitioner preferred an appeal being Crl. Appeal No. 7/96 before the learned Sessions Judge, Kamrup who by the impugned judgment and order dismissed the same maintaining the conviction and sentence.
6. Mr. Bhati, learned counsel for the petitioner has argued on two counts. Firstly the chana whole, being a primary food and not meant for sale within the meaning of the Act, the same could not have been taken by the Food Inspector and secondly, as per the evidence on record it was apparent that the chana whole was kept in the godown and the same was not for human consumption. The learned Courts below on a detailed consideration of the materials on record, recorded the finding the plea taken by the petitioner that the sample of chana whole was not adulterated, could not be accepted.
7. Mr. Bhati, in course of arguments contended that the sample of chana whole was different from the bulk of chana whole stored in the godown and that the evidence on record does not establish that the chana whole was kept for sale in the shop. This argument, as the records reveal, was not advanced before the learned courts below. Evidence on record also do not bear out the said contention. Sitting in revision, this court does not feel inclined to re-appreciate the evidence, more particularly, when no infirmity or illegality can be detected in the lower courts marshalling thereof. I am therefore not inclined to interfere with the conviction of the petitioner. On the basis of the materials On record', it is not possible to conclude that the chana whole, sample of which was taken by the Food Inspector was not kept for sale and that it conformed to the prescribed standards.
8. Situated thus, Mr. Bhati submitted that in the facts and circumstances of the case, this court may commute the sentence of the petitioner to one of fine only. In support of this submission. Mr. Bhati has submitted that the petitioner is aged about 73 years now and is suffering from diabetes. He also contended that the sample was taken in the year 1993 and long ten years have passed since then during which the petitioner has already suffered a lot.
9. In support of the above submission Mr. Bhati has relied on the decision of the Apex Court in Sri Krishna Gopal Sharma v. Govt. of NCT of Delhi, reported in 1996(1) SCC 258.
10. The above submissions of the learned counsel for the petitioner are not refuted by the learned PP .
11. I am of the view, having regard to the facts and circumstances of the case that the same merits consideration. The sample was seized in the year 1993 and ten years have passed in between. The petitioner was convicted after full trial. His appeal failed. The petition before this Court has been pending since 1995. The petitioner is aged and ailing. No useful purpose would be served in sending him to jail at this distant point of time being on bail for so many years. I therefore commuted the sentence of imprisonment to one of fine of Rs. 10,000. The petitioner would within two months therefrom deposit a sum of Rs. 12,000 in all in the court of the learned Chief Judicial Magistrate, Kamrup, Gauhati who will thereafter intimate the appropriate authority of the State Govt. about the same. The State Government would thereupon formalise it under Section 433 CrPC by passing appropriate orders under the said provision of the Code. It is made clear, that in case the petitioner fails to pay the fine as ordered, he would serve the sentence as imposed by the learned trail court and confirmed in appeal.
12. The learned trial court would ensure that the order of this court as indicated hereinabove is implemented in its letter and spirit.
13. With the above observations and directions, the petition is disposed of.