TARINI SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner Tarini Sahu personally and on behalf of the firm Krishna Chandra Sahu and Sons stands convicted under Section 16(1)(ii) of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and sentenced thereunder to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month for manufacturing 'Bura' (Nabata) without a food licence required to be obtained under R.50 of the Rules framed under the Act which was detected by the Food Inspector (P.W. 1) of the Berhampur Municipality in the presence of P.W. 2, an employee of the said Municipality, on 27.4.1978 at Berhampur. The article was sent for examination by the Public Analyst and it conformed to the standards prescribed under the Rules and thus the article of food was not adulterated within the meaning of the Act. The petitioner was prosecuted only for manufacturing the said article of food without obtaining a licence, the previous licence in the name of Krishna Chandra Sahu having expired on 31.12.1977.

(2.) MR . Pasayat for the petitioners has not assailed the order of conviction. He has submitted that after the expiry of the licence in the name of his deceased father on 31.12.1977, steps had been taken by the petitioner Tarini Sahu for renewal of the licence in the name of the firm Krishna Chandra Sahu and Sons, but he was given to understand that he had to deposit the licence fee in the name of the previous licensee Krishna Chandra Sahu which he did in September, 1978. It has been submitted that as the case against the petitioner can come under the purview of the second Proviso to Section 16(1) of the Act and the Court may, for any adequate and special reasons to be mentioned in the judgement, impose the sentence of imprisonment for a term which may extend to three months and with fine which may extend to Rs. 500/ -, the petitioner's substantive term of imprisonment may be reduced to the period of one day suffered by him after he surrendered and before he was released on bail in pursuance of the order of this Court and he may be let off with an appropriate fine amount. I have heard the learned Additional Standing Counsel for the State and Mr. R.C. Misra for the Berhampur Municipality who have left the question of sentence to the discretion of this Court. Mr. Misra has, however, invited my attention to the observations made by the Supreme Court in the case of Kisan Trimbak Kothula v. State of Maharashtra : AIR 1977 SC 435 : (1977 Cri LJ 267) to the effect that to earn the eligibility to fall under the proviso to Section 16(1) the person concerned must establish not only that his case falls positively under the offences specified in the said proviso, but negatively that the facts of the case do not attract any of the non -proviso offences in Section 16(1) of the Act.

(3.) IN this connection, the learned counsel for the petitioner has invited my attention to a decision of the Allahabad High Court in the case of Dhukan Lal v. State, 1981 FAJ 589 : (1981 Cri LJ 1078) in which the same question was involved and it was held that as the article of food which was being sold by the applicant was neither adulterated nor misbranded and as its sale had not been prohibited under the provisions of the Act or the Rules framed thereunder, it clearly was an article of food other than referred to in sub -Clause (i) of Clause (a) of Section 16(1) of the Act. It was further held that as the article in question was being sold in contravention of Rules 49 and 50 the case was squarely covered by sub -Clause (ii) of Clause (a) of Section 16(1) of the Act. Dealing with the question of sentences. H.N. Seth, J. observed and held as follows (at p. 1082 of Cri LJ) :