Holding

The State Government may consider commuting the sentence under Section 433(d) of the CrPC upon deposit of a fine of Rs 7,500 and an appropriate application, but the Court cannot compel the commutation.

Summary

Om Prakash was convicted under Section 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954 for selling 'Khoya' whose milk‑fat content was 19.07% instead of the prescribed minimum of 20%. The trial court sentenced him to six months' imprisonment and a fine of Rs 2,000. After the conviction was upheld by the Additional Sessions Judge and a criminal revision was dismissed by the Delhi High Court, he appealed to the Supreme Court seeking commutation of his sentence under Section 433(d) of the Code of Criminal Procedure, arguing that he had already served more than three months and the deviation in milk‑fat was minimal. The Court held that commutation is a discretionary power of the State Government and cannot be compelled; however, it directed the appellant to deposit a fine of Rs 7,500 and make an application, after which the State may consider commuting the custodial term. The appellant was ordered to be released on bail pending the State Government's decision. The appeal was disposed of.

Issues considered

Whether the sentence imposed for the food‑adulteration offence can be commuted under Section 433(d) of the CrPC given the appellant's custody of more than three months and the small margin of deviation in milk‑fat content.
Whether the Supreme Court can direct the State Government to commute the sentence or merely direct the procedure for consideration.

Legislation cited

Code of Criminal Procedure, 1973s. 433(d)
Prevention of Food Adulteration Act, 1954s. 13(2), s. 16, s. 7(1)

Subjects

Food adulterationMilk‑fat standardSentence commutationCrPC Section 433(d)FineBail

Judgment

A OM PRAKASH
v.
STATE (NCT) OF DELHI

JUNE 5, 2007

B [DR. ARIJIT PASAYAT AND D. K. JAIN, JJ.]

Prevention of Food Adulteration Act, 1954:-

s. 7(1) rlw s.16-Milk in 'Khoya' sold by accused found to be 19.075
C as against minimum prescribed standard of 20'Yo-Conviction by Trial Court
and sentence of 6 months imprisonment and fine of Rs. 20001-imposed by
Trial Court-Plea for commutation of sentence on grounds of incident being
of 1984 and margin of variation being very small-Held : Accused has
already suffered custody for more than three months-On deposit of a sum
D of Rs. 7,5001- as fine and an appropriate application being made, State
Government may consider to pass an appropriate order uls. 433(d) Cr. P.C.-
Code of Criminal Procedure, 1973-s 433 (d).

Code of Criminal Procedure, 1973:

E s. 433(d)-Power to commute sentence-Held: On deposit of fine and
on application being made by accused as indicated in the judgment, the
State Government may consider to pass an appropriate order under the
provision.

Appellant faced trial for an offence punishable u/s. 7(1) read with s.16
F of the Prevention of Food Adulteration Act, 1954. The prosecution case was
that the sample of 'Khoya' purchased by Food Inspector from the appellant on
27-11-1984 was found containing milk fat 19.07% as against the minimum
prescribed standard of 20%. The Trial Court convicted the appellant of the
offence charged and sentenced him to imprisonment for six months and to
G pay a fine of Rs. 2000/-. The appeal was dismissed by the Additional Sessions
Judge. As regards the plea for commut2tion of sentence u/s. 433, Cr. P.C., it
was held that it was matter within the discretion of the State Government.
The criminal revision having been dismissed by the High Court, the accused '
filed the instant appeal. (

H 958
,..__

- OM PRAKASH v. ST ATE (NCT) OF DELHI [PASAYA T. J.] 959
Disposing of the appeal, the Court A
HELD: The appellant has already suffered custody for more than three
months. He is directed to deposit a sum of Rs. 7,500/- as fine. On the deposit
of the amount being made within the stipulated time and the appropriate
application being made by the appellant, the State Go·.-ernment may consider
whether communication can be done in view of the peculiar facts of the case B
of passing an appropriate order under Clause (d) of Section 433 of the Cr.
P.C. In the meantime, the appellant shall remain on ball.
.->
";'
!Para 511960-E, F, GI

N. Sukumaran Nair v. Food Inspector, Mavehkara, 1199719SCC101
and Santosh Kumar v. Municipal Corporation and Anr., 120001 9 SCC 151, c
referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 534 of
2001.

From the Order dated 22.11.2000 of the High Court of Delhi in Criminal D
Revision No. 531 of 2000.

Ghan Singh Vashisht. R.P. Kaushik, Om Prakash Mishra, Deepak Thukral
and Amit Singh for the Appellant.

Ashok Bhan, S. Wasim A. Qadri for D.S. Mahra for the Respondent.
E
The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. 1. Challenge in this appeal is to the order
passed by a learned Single Judge of the Delhi High Court dismissing the
Criminal Revision petition filed by the appellant. The learned Metropolitan
Magistrate, New Delhi had found the accused-appellant guilty of offences F
~
_4 punishable under Section 7( I) read with Section 16 of the Prevention off ood
Adulteration Act, 1954 (in short 'the Act'). He had sentenced him to undergo
imprisonment for six months and to pay a fine of Rs.2,000/- with default
stipulations. An appeal was carried and the learned Additional Sessions
Judge, New Delhi, in Criminal Appeal No.61. of 1999, dismissed the same G
holding that the offence was made out. As noted above, a revision petition
was filed before the High Court which was dismissed summarily.

2. Background facts in a nutshell are as follows:
I
On 27 .11.1984, the Food Inspector purchased a sample of Khoya from
H
I
~.

960 SUPREME COURT REPORTS [2007] 7 S.C.R.

A the appellant. The Public Analyst found that the milk fat of the finished
product was 19.07% as against the minimum prescribed standard of20%. The
..... appellant exercised his right under Section 13(2) of the Act. The appellant
faced trial. As noted above, the Metropolitan Magistrate convicted the
appellant and sentenced him. The appeal filed before the learned Additional
Sessions Judge, New Delhi, was dismissed. A stand was taken before the
B learned Additional Sessions Judge that in view of several decisions of this
Court, there should be commutation of sentence. The learned Additional
Sessions Judge held that the commutation of sentence under Section 433 of
4...
the Code ofCriminal Procedure, 1973 (in short the 'Cr.P.C.) was a matter within >:
the discretion.of State Government. The appellant filed criminal revision which
c was dismissed, as noted above.

3. Learned counsel for the appellant submitted that the High Court, by
a non-reasoned order, dismissed the revision petition, though in similar cases
it had passed orders following the decision of this Court in N. S~kumaran
Nair v. Food Inspector, Mavehkara, [1991] 9 SCC IOI. Learned counsel for
D the respondent submitted that the exercise of power under Section 433 Cr.P.C.
is discretionary and no direction can be given to commute the sentence.

4. Learned counsel for the appellant made a plea for affording the
benefit as given by this Court in N. Sukumaran Nair's case (supra) and
Santosh Kumar v. Municipal Corporation and Anr., [2000] 9 SCC 151. The
E plea is made on the ground that the occurrence took place in 1984 and the
margin of variation is very small.

5. It is pointed out that the appellant has already suffered custody for
more than three months. We direct that a sum of Rs.7,500/-, as fine, be
deposited within a period of six weeks from today. The appellant shall move
F
the appropriate Government for commutation of the custodial sentence. On
the deposit of the above amount being made within the stipulated time and )._
.
the appropriate application being made the State Government may consider
whether commutation can be done in view of the peculiar facts of the case
by passing an appropriate order under Clause (d) of Section 433 of the Cr.P.C.
G In the meantime, the appellant shall remain on bail.

6. With this end result, the appeal stands disposed of.

RP. Appeal disposed of.
(

H