D.A.DESAI - (1.)[ The Hon'ble Court after narrating the facts of the case further observed: ]
(2.)At the outset it is necessary to lay down with precision and accuracy the approach of the Court while dealing with the offences under the Prevention of Food Adulteration Act 1954 Prior to its amendment in the year 1964 Parliament provided different sentences for the first offence second offence and those who committed third and subsequent offences. By the Amending Act 49 of 1964 sec. 16 which is a punishing section which had recognised different sentences to be awarded for the first offence second offence or subsequent offences has been substantially amended. The material portion of section 16 as amended in 1964 by Amending Act 49 of 1964 reads as under :
"16 (1) If any person (a) whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores sells or distributes any article of food: (i)which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of public health; xxx xxx xxx he shall in addition to the penalty to which he may be liable under the provisions of sec. 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 fine which shall not be less than one thousand rupees. " Provided that- (i)if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of sec. 2 or misbranded under sub-clause (k) of clause (ix) of that section; or (ii) if the offence is under sub clause (ii) 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."
The necessity and purpose of amendment has been clearly set out in the objects and reasons accompanying the amending bill. Relevant portion reads as under :
" It is also considered that the penal provisions of the Act are inadequate and that they should be made more deterrent in order to have an effective check on the evil of adulteration. "
Now if the Parliament had to step in to take away the discretion which trial Court always enjoys in deciding adequate quantum of punishment keeping in view the facts of each case effect will have to be given to the legislative intendment as manifest in the amendment of sec. 16. If prior to the amendment of sec. 16 in the year 1969 the Parliament had recognised the necessity of providing different sentences though for the same offence committed for the first time and then repeated and subsequently by amendment of sec. 16 did away with this difference it would give a clue to the intention of the Parliament as manifest in the penal provision contained in sec. 16 after its amendment in 1964. When the legislature provided different punishments for the same offence committed for the first time or for the second time or for the third time relevant principle behind it is to punish effectively contumacious conduct of the accused in that sentence awarded for the first offence had not deterred him from pursuing the same criminal activity. Ordinarily there ought to be no difference in the sentence to be awarded to a man who adulterates an article of food for the first time or for the second time or for the third time because degree of harm is the same from the society's point of view. To illustrate if water is added to milk it is of no consequence whether it was added by the accused for the first time when unfortunately it was detected or for the second time when unfortunately it was again detected or for the third time except this that sentence for the first offence has not acted as a check on the criminal or anti-social activity of the accused concerned. It is only the measure of contumacious conduct of the accused which can indicate a principle for providing for more deterrent punishment for second and subsequent offences. But once that scheme of the section is deliberately and intentionally amended it must be for a purpose. It must not have been undertaken as an exercise in mere futility. Act was on the statute book from 1954 and the amendment was undertaken in 1964. In between the Central Council of Health reviewed the working of the Act and then recommended inter alia that the penal provisions of the Act should be made more deterrent. If with this material the Parliament stepped in and amended the penal provisions contained in sec. 16 simultaneously doing away with different punishments for the first offence second offence and subsequent offences Courts dealing with offences under the Act must take notice of the amendment keeping in view the purpose and object for which amendment is made and give effect to it. In fact punishment provided in sec. 16 prior to its amendment in 1964 failed to act as deterrent not because punishment was very light but because the Courts while deciding the cases under the penal provision failed to take note of the pernicious effect of the adulterated food on the society at large. Unfortunate though it is it is true that the Judges and Magistrates dealing with the cases under the Prevention of Food Adulteration Act by and large failed to take note of the object and purpose for which the Act was enacted namely to eradicate wide spread pernicious and degenerating effect of adulteration of articles of food and treated offences under it lightly forgetting that the activity of a trader dealing in adulterated articles of food affect a wide segment of society in two ways in that the activity becomes menace to the public health and it is undertaken by a man for private profit. Two important aspects of the offences committed under the Prevention of Food Adulteration Act are that the one who commits it does it for personal profit and gain and therefore it is done in an insidious manner at the cost of the public health of the society causing a very wide pernicious effect affecting a large number of unwary unsophisticated and gullible members of the society. This should not and cannot be easily lost sight of. The offences are very serious if not atrocious in their effect on those who have the misfortune of taking those adulterated articles of food. If A causes some hurt to B by and large it is a matter between A and B. But if a trader sells about a maund of adulterated article of food to about hundred persons he has in turn played with the Jives of hundred persons and that shows the gravity of the offence. Time without number it has been pointed out that one who adulterates an article of food is not only a menace to the public health but indulges in anti-social activity carried on in an insidious manner for personal gain by cheating people. That pernicious effect and the degree of harm cannot be gauged with accuracy and reasonable certainty. It is often said that a particular accused is a first offender under this Act. It is easy to understand this expression because out of the whole bulk of adulterated article of food he has sold a portion of it only to the Food Inspector and in respect of which he is prosecuted. To that extent he is a first offender though by the time the accused is tried the entire bulk is disposed of and he has committed number of offences before law takes notice of it. Another aspect of the matter is that one who adulterates an article of food while playing with the lives of people cheats each one of his purchasers. When an article of food which is adulterated is purchased ordinarily foreign substance is added to it or its ingredients and constituents do not conform to the standard prescribed for the same. The standards are prescribed for assuring purity and quality of the article of food. When one buys an adulterated article of food he pays for something which he never wanted to buy and in the process gets cheated. This is also an aspect of which the Court should take notice while deciding or appreciating the gravity of the offence under the Prevention of Food Adulteration Act.
(3.)One can look upon with equanimity some time compassion some time indulgence some time even sympathy in case of an individual who causes harm to another fellow may be out of lust vengeance or even personal revenge. But this sophisticated fellow who carried on something in the name of trade may be a petty trader sells article of food which is adulterated does something for his personal gain remaining completely oblivious to the health and well being of every one who deals with him.
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