Mahesh Narain Shukla, J. - (1.) This reference has been made to this Court by the learned Sessions Judge, Meerut, and arises out of a case under the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The accused was convicted by the SDM, Hapur, u/S. 7 /16 of the Act, but the sentence awarded to him was imprisonment till the rising of the court and a fine of Rs. 1,000/ - and in dafault of payment of fine rigorous imprisonment for six months. The accused preferred an appeal and the learned Sessions Judge was of the view that the sentence awarded by the Magistrate was not in conformity with the one prescribed by S. 16 of the Act. Hence, he made a reference to this Court. The offence for which the respondent was convicted fell u/S. 16(1)(a)(i) of the Act. The case of the prosecution was that the accused was selling coloured Balushahi of which the sample was taken and sent to the public analyst. The report of the public analyst showed that the sample was coloured with a coal tar dye, namely, orange II which was not one of the coal tar dyes prescribed u/R. 28 of the Prevention of Food Adulteration Rules. Hence, the learned Magistrate came to the conclusion that an offence u/S. 16(1)(a)(i) of the Act had been established. As we have already observed, he awarded a sentence of imprisonment till the rising of the court and a fine of Rs. 1,000/ -. It was contended by the learned counsel for the State that this was clearly in contravention of S. 16 of the Act, which runs as under: - - 16. Penalties. - -(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. (ii) other than an article of food referred to in sub -Cl. (i), 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 as authorised by this Act; or (c) prevents a food inspector from exercising any other power conferred on him by or under this Act; or (d) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any material which may be employed for the purposes of adulteration; or (e) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a Public Analyst or any extract thereof for the purpose of advertising any article of food; or (f) whether by himself or by any other persons 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 fine which shall not be less than one thousand rupees: Provided that: - - (i) if the offence is u/sub -Cl. (i) of Cl. (a) and is with respect to an article of food which is adulterated u/sub -Cl. (1) of Cl. (i) of S. 2 or misbranded u/sub -Cl. (k) of Cl. (ix) of that section; or (ii) if the offence is u/sub -Cl. (ii) of Cl. (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 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.) It will be evident from the provisions of the above Sec. that if any person sells any article of food which is "adulterated", he shall 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. In other words, the minimum sentence prescribed for an offence of the aforesaid nature is six months imprisonment and fine which shall not be less than one thousand rupees.
(3.) In our opinion the Magistrate was obviously in error in awarding a punishment which was less than the minimum punishment prescribed by the statute for the said offence. The provisions of S. 16 of the Act are explicit and do not leave any discretion in the court to depart from the same in the matter of deciding the penalty to be imposed upon an offender. It may be noted that the proviso to S. 16 of the Act contemplates certain exceptions to the minimum statutory punishment. Obviously, therefore, if the case is covered by the various clauses of the proviso the court has a discretion to impose a lesser sentence than the minimum prescribed and in certain cases it is incumbent on the court to record "adequate and special reasons" for such action. The intention of the legislature is abundantly clear from the terms of S. 16 and the proviso thereto. The legislature was alive to the propriety of prescribing a lesser sentence in certain contingencies which have been specified in the proviso. In the teeth of such specific provision made by the legislature, it is not open to the courts to add any other contingency which might justify the imposition of a lesser sentence. There is no room for doubt that all the circumstances in which such lesser penalty should be imposed were exhausted by the legislature when it engrafted the proviso to S. 16. In a division Bench decision of this Court to which one of us was a party (Cr. Ref. No. 440 of 1967, connected with Cr. Rev. No. 1990 of 1967, decided on 2 -4 -1969) the contention as to whether it is permissible to award a lesser sentence in a case like the one before us now, was considered at length. The argument on behalf of the accused that it was within the discretion of the court to award lesser sentence was repelled. It was observed: - - Therefore, we are unable to accept the construction sought to be put on the language of S. 16 of the Act by the learned counsel for the applicant. It is not within the discretion of the court to award a lesser sentence than the minimum prescribed by S. 16, unless the case is covered by Cls. (i) or (ii) of the proviso. The minimum sentence being strictly prescribed by the terms of the statute, there is no discretion in us to refrain from awarding the sentence of imprisonment.;