Full Judgment
Vyas Dev Misra, J.
1. This Revision is directed against the judgment of Shri J. D. Jain, Additional Sessions Judge, Delhi upholding the conviction of the petitioner under Section 7/16 of the prevention of Food Adulteration Act but reducing the sentence to simple imprisonment for one month and a fine of Rs. 1,000/-.
2. The petitioner was found selling panir at his shop at Rani Jhansi Road, Delhi on 7th November, 1968 at about 9.30 P. M. by H.K Bhanot Food Inspector of the Municipal Corporation of Delhi. 600 grams of panir was purchased as sample for analysis on payment of its requisite price. It was divided into three equal parts and put in three dry and clean bottles after putting in 16 drops of formalin in each bottle as enjoined by the rules. The Public Analyst vide his report Exh. P-E dated 21st November, 1968 found the panir adulterated because of a deficiency of 15.03 per cent in fat of the dry mater per cent. Municipal Corporation of Delhi filed a complaint under Section 7/16 of the Prevention of Food Adulteration Act against the petitioner. During the trial the petitioner got the sample bottle lying with the Food Inspector sent to the Director of Central Food Laboratory Calcutta who reported that the sample was highly decomposed and was unfit for analysis.
3. The trial court found the petitioner guilty and convicted him and sentenced him to six months rigorous imprisonment and a fine of Rs. l,000/- in default of payment of which to undergo three months rigorous imprisonment. On appeal, the learned Additional Sessions Judge while upholding the conviction reduced the sentence to one month's simple imprisonment and a fine of Rs. 1,000/- in default of payment of which to undergo one month's simple imprisonment.
4. Mr. B. B. Lal, learned Counsel for the petitioner, does not challenge the conviction of the petitioner but prays for reduction of the sentence to one already undgergone. His contention is that according to the standard of quality laid down in clause A. 11.09 of Appendix B to the Prevention of Food Adulteration Rules, 1955, the present sample could not said to be adulterated. By an amendment of the rules, the standard was changed with effect from 24th August, 1968 which laid down the standard in clause A.11.02. 05. He thus contends that because of the interval between the change of the standard the serious view of the offence should not be taken. He also contends that in any view of the matter since the lower appellate court had reduced the sentence to one month's simple imprisonment, of which the petitioner has under-gone a part, he should not be sent back to undergo the remaining sentence.
5. I am surprised to know that the learned Additional Sessions Judge while reducing the period of six months to one month thought fit to change the nature of the sentence from rigorous imprisonment to that of simple imprisonment. Again while maintaining the sentence of fine of Rs. l,000/- he decided to reduce the period of imprisonment in default of payment of fine to one month's simple imprisonment only instead of three month's rigorous imprisonment awarded by the trial magistrate. No reason has been given in the judgment as to why the nature of the sentence was changed from rigorous imprisonment to that of simple imprisonment. No reason has also been given as to why the imprisonment in default of payment of fine was reduced along with the nature of imprisonment. On a number of occasions it has been pointed out by this Court that the question of sentence is in the discretion of the trial court and the appellate court will not be justified in interfering with the sentence unless it comes to the conclusion that the discretion has not been properly exercised in the circumstances of a case. I am constrained to remark that the learned Additional Sessions Judge had no reason to change the nature of the substantive sentence. He had also no reason to reduce the sentence awarded to the petitioner in default of payment of fine and also change its nature.
6. In view of the fact that the substantive sentence was for one month's simple imprisonment and that the petitioner has already undergone a part of the same I will not like to send him back to undergo the remaining part of the sentence. The ends of justice will be fully met if remaining part of the sentence is converted into a fine of Rs. 500/-.
7. The result is that the Revision is partly allowed and the sentence awarded by the lower appellate court is converted to a fine of Rs. 1,500/- only in default of payment of which he will undergo three month's rigorous imprisonment. The fine to be paid within two months from today.