JUDGMENT :

Heard Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Bishambhar Shastri, learned counsel appearing on behalf of the opposite party - State.

3. This petition has been filed against the judgment and order dated 23.02.2012 passed in Cr. Appeal No.132/2008 by learned Sessions Judge, Dhanbad, in connection with P.F.A. Case No.09/1994/ T.R. No.935/2008 whereby the judgment and order of conviction and sentence dated 19.05.2008 passed by learned Sub- Divisional Judicial Magistrate, Dhanbad, has been affirmed.

The petitioner was convicted by the learned trial court for the offence under Section 16 (1)(a)(c) of the Prevention of Food Adulteration Act, 1854 and was sentenced to undergo S.I. for one year and fine of Rs.1,000/- and in default of payment of fine, further to undergo S.I. for 2 months.

Arguments of the Petitioner

4. Learned counsel for the petitioner while assailing the impugned judgments has submitted that the impugned judgments are perverse in view of the fact that the petitioner was not the owner of the shop from which the alleged adulterated food has been collected by the Food Inspector. He also submits that Exhibit-B was produced before the learned court below by the defence witness Keshav Dev Agarwal which indicated that the petitioner was under his employment.

Learned counsel has further submitted that the food licence was issued in the name of his full brother namely Vishnu Pado Modak, who was never made accused in the case and the licence was exhibited as Exhibit A.

5. Learned counsel submits that the petitioner has been convicted on the basis of evidence of the sole witness P.W.1, but he was accompanied by two more persons namely Mustafa khan, Health Supervisor and Md. Khalil, peon, but they were not examined and non-examination of the persons accompanying the Food Inspector is fatal to the prosecution case and creates a doubt in the prosecution case.

6. He submits that the aforesaid aspects of the matter have not been properly considered by the learned courts below.

7. Without prejudice to the aforesaid submission, the learned counsel submits that an affidavit has been filed by the State in the present case indicating that the petitioner is 63 years of age. He also submits that the petitioner has faced the criminal case since 1993 and has remained in custody during the pendency of the present revision petition as he had surrendered on 25.06.2012 and was released on bail vide order dated 04.07.2012. Learned counsel has also submitted that considering the fact that the petitioner has faced the rigors of criminal case for a long time, some sympathetic view may be taken by this Court.

Arguments of the State

8. Learned counsel appearing on behalf of the State has submitted that the learned courts below have fully considered both exhibits i.e., Exhibit A and Exhibit B which were filed from the side of the defence and he submits that it has come on record that the petitioner was the vendor at the shop from where the food was purchased by the Food Inspector (P.W-1). Learned counsel submits that there is no scope for reappreciation of evidences on record and coming to a different finding. So far as the point of sentence is concerned, the learned counsel submits that there is minimum sentence of six months and fine not less than Rs.1,000/-prescribed under Section 16 of Prevention of Food Adulteration Act, 1854. In such circumstances, if this Court is inclined to modify the sentence, then the period may not be less than 6 months simple imprisonment.

Rejoinder argument of the Petitioner

9. Learned counsel for the petitioner, in response, has referred to the judgment passed by the Hon'ble Supreme Court in the case of State of Orissa Vs. K. Rajeshwar Rao reported in (1992) 1 SCC 365 and submits that the Hon'ble Supreme Court has been pleased to modify the sentence, and only fine of Rs.500/- was imposed.

Findings of the Court

10. The prosecution case in brief is that one Food Inspector (P