FOOD INSPECTOR MANGALORE MUNICIPALITY Vs. K S RAPHAEL

JUDGEMENT

(1.) In this revision, the Food Inspector, Mangalore City Municipality, has sought to challenge the leagality and the correctness of the order of sentence dated 18-1-1979 passed by the Sessions Judge, Dakshina Kannada at Mangalore in Cr.A. No. 87 of 78 on the file of his Court.

(2.) The respondent (hereinafter referred to as the accused) and his employer - M/s. Brothers Dairy Supplies by its Partner and Manager - Sri P. V. Chandran, were tried on the charge of the commission of the offence of selling the adulterated milk punishable under Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'), in C.C. No. 162 of 77 on the file of the II Addl. Chief Judicial Magistrate, mangalore Dakshina Kanada. By order dated 14-9-1978, the employer was acquitted, but the accused was found guilty on the said charge and convicted and sentenced thereon to suffer S.I. for three months and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo S.I. for one month, On appeal, by order dated 18-1-1979 in Cr.A. No. 87 of 78, the Sessions Judge, Dakshina Kannada at Mangalore, confirmed the said order of conviction passed on the accused. But, however, considering the fact that the accused was only at employee for supply of the milk and there was no evidence in the case to show that the accused had any knowledge that the milk that was in the can with him was adulterated and the fact that the employer had been acquitted, thought the case of the accused deserved to be dealt with leniently and accordingly relying upon the decision in Ramanjaneyulu v. K. M. Malloji Rao reported in 1978 Cri LJ 1047 (Kant) he set aside the order of imprisonment passed on the accused. He also reduced the fine and sentenced the accused to pay a fine of Rs. 500/- instead of Rs. 1,000/- and in default of payment of fine to undergo S.I. for one month. It is the correctness of this order of sentence passed by the Sessions Judge that is sought to be challenged in this revision.

(3.) It is contended that the offence in question having been committed on 10-5-1977, in view of the amended provisions of sub-section (1) of Section 16 of the Act which came into force with effect from 17-2-1976, the Court was left with no discretion in the matter of sentence of imprisonment, in that in case of such an offence of adulteration of the primary food, under sub Clause (1) of Clause (a) of Section 16, the Court cannot impose a sentence of imprisonment for a term less than three months, and fine not less than Rs. 500/-. The sentence passed by the Sessions Judge on the accused being, therefore, illegal, it deserved to be set aside and the sentence passed by the Chief Judicial Magistrate deserved to be restored.