M.C.Desai, J. - (1.) The applicant has been convicted under Section 16(1)(ii) of the Prevention of Food Adulteration Act for selling adulterated milk and sentenced to rigorous imprisonment for one year and a fine of Rs. 2000/-. The conviction of the applicant is fully supported by evidence and there is nothing illegal or improper in it. The question raised before me is that of the sentence.
(2.) The applicant was convicted twice before under the U. P. Pure Food Act. On 22-11-1955 he was convicted and fined Rs. 75/- under S. 42 of the Pure Food Act for selling adulterated milk. He was again convicted on 13-2-1956 under S. 42 of the Pure Food Act for selling milk without a licence and sentenced to a fine of Rs. 10/-. Section 16 of the Prevention of Food Adulteration Act reads as follows: "16(1) If any person (a) whether by himself ...... stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder, or (b) prevents a food inspector from taking a sample ........... or (c) prevents a food inspector from exercising any other power ......... or (d) .... ... has in his possession ..... any material which may be employed for the purpose of adulteration; or (e) ...... tampers or in any other manner interferes with such article, or (f) uses any report or certificate of a test v. ....... for the purpose of advertising .... or (g) ...... gives to the purchaser a false warranty .......... he shall .... be punishable (i) for the first offence, with imprisonment for a term which may extend to one year ......; (ii) 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 . . . such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees; (iii) for a third and subsequent offences, (2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the Court may direct .........."
(3.) The question that arises is whether the words "a second offence" occurring in Section 16(1)(ii) requires that the previous offence must be one punishable under Section 16 (1) of the Prevention of Food Adulteration Act or may be one punishable under any other Act dealing with adulteration of food, such as the U. P. Pure Food Act (No. 32 of 1950). Since the previous offences committed by the applicant in the present case were both offences punishable under the U. P. Pure Food Act and not under the Prevention of Food Adulteration A.ct, the further question whether for bringing a case within Section 16(l)(ii) the previous offence must be not only an offence punishable under the Prevention of Food Adulteration Act but also offence of the same nature, i. e., punishable under the same Sub-sections (a), (b), (c), etc. of Section 16(1) does not arise. The question raised by the words "a third and subsequent offences" in Clause (iii) is similar to, that raised by the words of Clause (ii). The "first offence," the "second offence," the "third offence" and the ''subsequent offence" to be punished under Clauses (i), (ii) and (iii) of Section 16(1) must obviously be offences punishable under the Act and if an offence is to be punished as a second offence (or a third or a subsequent offence) the problem is what previous offence will render it ''a second offence." It can be asserted without any hesitation that an exactly similar previous offence punishable under this very Act will render it so and it can be asserted with equal confidence that any previous offence such as that punishable under the Cattle Trespass Act or the Public Gambling Act or the Child Marriage Restraint Act will not render it so. But what about a previous offence of the same) nature as the one to be punished, but punishable under another Act (for example, the U. P. Pura Food Act, as in the present case, or the Indian Penal Code, Sections 272, 273 etc.)? What about a previous offence of a dissimilar nature punishable under the Prevention of Food Adulteration Act or a similar Act?;