S. Malik, J. - (1.) THIS is an application in revision by Ram Prakath against the judgment dated 7-1-1976 of the Ist Additional District and Sessions Judge, Mainpuri, dismissing his appeal and upholding the judgment of the Munsif Magistrate 1st Class, Mainpuri, dated 28-1-1975, convicting him under Section 16 read with Section 7 of the Prevention of Food Adulteration Act and sentencing him to three months' rigorous imprisonment and a fine of Rs. 1000/-.
(2.) AS usual, the revision application came up before a learned Single Judge of this Court. While admitting the revision application, he by his order dated 21-1-1976 not only issued to the State, but also issued notice to the applicant for enhancement of the sentence passed by the court below, as according to the report of the Public Analyst, the sample of food was coloured with prohibited coaltar dye and the question, therefore, arises whether the provisions to Section 16 can be applied to this case and a lesser sentence than the minimum provided under Section 16 could have been passed by the trial court. The learned Judge also observed that it would be open to the applicant to move an application cLalming benefit of the First Offenders' Probation Act and such an application may be decided according to the view taken by a Division Bench of this Court before which the question as to whether benefit of the First Offenders' Probation Act can be given to an accused convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, was raised and was pending. We may point out that a Division Bench of this Court in Badan Singh v. State of U. P., 1976 AWC 298 has held that benefit of the U. P. First Offenders' Probation Act can be given to a person convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. We, therefore, need not enter into this question. As appears, the article of food, t)ie sample of which the Food Inspector had taken from the applicant and sent to the Public Analyst, was Kampat made of sugar. It would, therefore, come under item No. 25 given in rule 22 which lays down the quantity to be sent to the Public Analyst for analysis. According to this rule, the quantity which should have been sent, was 300 gms. In the present case, we find that only 200 gms. was sent. As held by the Supreme Court in Rajal Das Guru Namal Famanani v. The State of Maharashtra, AIR 1975 SC 189, "the shortage in quantity for analysis is not permitted by the statute" and, therefore, if the quantity sent to the Public Analyst was less than the quantity required to be sent under the rule, the report of the Public Analyst would be no evidence in the eye of law. It has, therefore, to be held that the prosecution f ailed to prove that the Kampat made of sugar was adulterated.
(3.) IN view of the observations made by the Supreme Court, we allow the revision application, set aside the orders passed by the courts below convicting and sentencing the applicant and acquit him. If he has deposited any amount as fine, the same shall be refunded. Before parting with this order, we may, however, observe that in a case not covered by the proviso to Section 16 off the Prevention of Food Adulteration Act, empowering the Court to pass a sentence lesser than the minimum provided for under that section it is not passible to award a lesser sentence than tie minimum prescribed therein. Revision allowed.;