CITY CORPORATION OF TRIVANDRUM Vs. K J MATHEW
LAWS(KER)-1967-7-2
HIGH COURT OF KERALA
Decided on July 20,1967

CITY CORPORATION OF TRIVANDRUM Appellant
VERSUS
K.J.MATHEW Respondents

JUDGEMENT

- (1.) This criminal revision petition raises an important and interesting question; the question is whether the court is competent under the proviso to S.16 of the Prevention of Food Adulteration Act Act 37 of 1954 as amended by Act 49 of 1964 (hereinafter referred to as the Act) to award a sentence of fine alone of less than Rs. 1000/-. The punishment is provided in clause (f) of sub-s.(1) of S.16, which reads: "(1) If any person xx xx xx xx (f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of S.6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with a fine which shall not be less than one thousand rupees: Provided that (1) If the offence is under sub-s.(1) of clause (a) and is with respect to article of food which is adulterated under sub clause (1) of clause (i) of S 3 or misbranded under sub clause (k) of clause (ix) of that section; or (11) If the offence is under sub clause (11) of clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees."
(2.) Learned counsel for the accused in commenting on the scope of the above proviso would point out that in cases where extenuating circumstances exist and the offence is one falling under any one of the categories mentioned in the proviso, the court is empowered to award a lesser sentence and the sentence so awarded can either be a sentence of imprisonment for less than six months or a sentence of fine of less than one thousand rupees or a sentence of both imprisonment for less than six months and fine of less than one thousand rupees. It would, therefore, be competent for the court to award a sentence of fine alone unassociated with a term of imprisonment.
(3.) In the case on hand the accused has been convicted under S.7(1) and 16 of the Act for selling adulterated Icecream and sentenced to pay a fine of Rs. 200/-. The reasons for taking a lenient view are stated by the learned Magistrate in the following words: "Regarding punishment, I am inclined to take a lenient view since the addition of starch which has made the sample of "Ice-cream" adulterated, is allowed in the preparation of 'mixed Ice-cream" even according to Pw 1, even though it is legally prohibited in "Ice-cream" which is involved in this case and I consider that the technical adulteration in question is not so grave and abominable as to be visited with the extreme punishment of compulsory imprisonment, to meet the ends of justice." We do not propose to go into the merits of the above reasoning. The point with which we are directly concerned in the present petition, is whether the court is competent even granting that there are adequate and compelling reasons to justify a lenient view being taken, to award a sentence of fine alone of less than one thousand rupees; in other words, whether the offence could be wiped out by a mere sentence of fine only. A cursory reading of the proviso would give us such an impression; but on closer scrutiny it would appear beyond the possibility of doubt that, that is not what is intended by the proviso. What really the proviso is intended to convey is that in appropriate cases the court shall have the power to award a sentence of imprisonment and fine less than the minimum prescribed in the section. The court may for reasons to be mentioned in the judgment award "a sentence of imprisonment of less than six months, or a fine of less than one thousand rupees or a sentence of both imprisonment of less than six months and fine of less than one thousand rupees". The enacting clause, as is patent, has made the punishment conjunctive; that is to say, that the punishment shall always take the form of imprisonment with a fine super-added. That this is the legislative intent is gatherable from the very wording of the enacting section and that cannot be deemed to have been taken away and the punishment made disjunctive by the proviso. The legislative intent can be gauged further from the corresponding provision in the old section. We are extracting the section as it stood before the amendment. S.16(1)(g) reads: "If any person xx xx xx xx (g) Whether by himself or by any person on his behalf gives to the purchaser a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of S.6, be punishable (1) for the first offence, with imprisonment for a term which may extend to one year. or with fine which may extend to two thousand rupees, or with both; (11) for a second offence with imprisonment for a term which may extend to two years and with fine Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees." (111) for a third and subsequent offence, with imprisonment for a term which may extend to four years and with fine Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees.";


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