19 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 326/2010 & Crl.M.(Bail) 845/2010 SHAYAM LAL Petitioner Through: Mr. [ENTITY], Advocate versus STATE Respondent Through: Ms. [ENTITY], APP for State with SI Kamlesh, PS Moti Nagar % Date of Decision : 13th December, 2012 CORAM: HON'BLE MR. JUSTICE [ENTITY] JUDGMENT
[ENTITY], J : (Oral)
1. Present criminal revision petition has been filed challenging the order dated 02nd June, 2010 passed by the Additional Sessions Judge ('ASJ') confirming the order of conviction and sentence passed by the Metropolitan Magistrate ('MM') convicting the petitioner under [SECTION] of the [ACT] read with [SECTION] [ACT].
2. It is pertinent to mention that the MM had sentenced the petitioner to six months rigorous imprisonment.
3. The relevant facts of the present case are that in the complaint filed by the Food Inspectors, it was stated that when they visited the petitioner's shop for the purpose of collecting food samples, they were pushed out of the shop and the shutter was closed by the petitioner.
4. Mr. [ENTITY], learned counsel for the petitioner states that he has instructions not to challenge the conviction order but only to challenge the order on sentence.
5. Mr. [ENTITY] further states that as the petitioner is today aged about 70 years and the offence is alleged to have been committed on 08 th August, 1989, that means, more than twenty three years ago, this Court should reduce the sentence to the period already undergone. In this regard, Mr. [ENTITY] relies upon a judgment of the Supreme Court in [PRECEDENT]. The relevant portion of the said judgment is reproduced hereinbelow:-
"5. Having heard learned counsel for the parties and having regard to the fact that the incident had taken place almost 27 years ago and the Appellant is now more than 70 years of age, suffering from several medical ailments we are inclined to accept the submission made on behalf of the Appellant for reduction of his sentence.
6.In that view of the matter and in the circumstances mentioned hereinabove, we allow the request to the extent that while maintaining the conviction of the Appellant, we reduce his sentence, to the period already undergone."
6. On the other hand, Ms. [ENTITY], learned APP for the State points out that the petitioner has not completed the minimum sentence of six months under [SECTION] of the [ACT].
7. Having heard learned counsel for the parties, this Court is of the view that the issue that arises for consideration is whether an accused can be sentenced to a period below the minimum prescribed period under the [ACT].
8. A learned Single Judge of this Court in [PRECEDENT] has held as under:-
8.Learned counsel for the respondent contends that minimum sentence under the [ACT] is six months, therefore, this Court cannot reduce the sentence to the period already undergone by the petitioner.
9.To rebut this contention, learned counsel for the petitioner, by placing reliance on [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT], has contended that in peculiar facts of a case, sentence can be reduced even below the minimum prescribed period under the [ACT].
10.I have considered the rival contentions of both the parties on the point of sentence and I have also perused the judgments rendered by this Court reliance whereupon has been placed by the petitioner.
11. Petitioner is aged about sixty years; his ailing wife is totally dependent upon him. Incident has become two decades old. Therefore, it would not be justifiable to send the petitioner to jail at this stage.
12. Accordingly, while upholding the conviction, I reduce the sentence of the petitioner to the period already undergone by him. So far as sentence and fine is concerned, same is maintained as it is.
13. Petition is disposed of in the above terms."
9. In [PRECEDENT] this Court has held as under:-
"8. Learned APP opposes reduction of sentence on the ground that the Act provides minimum sentence of six months and the same cannot be reduced. Per contra counsel for the petitioner has contended that in the given facts of a case sentence can be reduced below the minimum prescribed in a statute. Reliance has been placed on [PRECEDENT] [PRECEDENT] [PRECEDENT] Sri [PRECEDENT] [PRECEDENT] (decided by Hon'ble Mr. Justice [ENTITY]) [PRECEDENT] (Decided by Hon'ble Mr. justice [ENTITY]) [PRECEDENT] (Decided by Hon'ble Mr. justice [ENTITY])
9. From the judicial pronouncements, reliance whereupon has been placed, it is clear that sentence below the minimum prescribed under the statute can be handed down to an accused. In this case, petitioner has suffered ordeal of trial for about 18 years; he is now aged about 60 years; he is suffering from diabetese; his one daughter is mentally retarded as has been certified by the Institute of Human Behaviour and Allied Sciences, Shahdara; other daughter is of marriageable age. In these peculiar circumstances while upholding the conviction, his sentence is reduced to the period already undergone by him."
10. In view of the aforesaid judgments, it is apparent that this Court has the power to reduce the sentence even below the minimum prescribed period under the [ACT] for some cogent reasons.
11. Since in the present case, the offence is alleged to have been committed nearly 23 years ago and the petitioner is now aged about 70 years with no criminal antecedents, this Court is of the view that the sentence in the present case needs to be reduced to the period already undergone. Ordered accordingly. With the aforesaid directions, the present petition and application stand disposed of.
Order dasti.
[ENTITY], J DECEMBER 13, 2012 NG