Dua, J. - (1.) THIS is a revision on behalf of the Municipal Corporation praying for enhancement of sentence on the ground that under the law the accused was bound to be sentenced to some imprisonment because this is not his first conviction.
(2.) ACCORDING to the case of Municipal Corporation of Delhi (Complainant in the case) Shri Yograj Singh, Food Inspector, went to the shop of Intazar -ud -din, respondent in this Court, where he was selling cow's milk. The Food Inspector disclosed his identity and took a sample of the cow's milk for the purpose of getting the same tested by the Public Analyst. After observing the rules framed under the Act the sample was forwarded to the Public Analyst whose test report showed the sample to be adulterated due to 5.5 per cent added water as compared with the standard of cow's milk laid under the rules. This resulted in the challan of the accused who pleaded guilty. He also admitted his previous conviction. It may be observed that the persecutor asserted that this was the third offence of the accused, though in the questions put to the accused and answered by him only one previous conviction was referred to and this was admitted by him. The accused also put in a written statement dated 27th June 1962 in which he expressly admitted his guilt but stated that he was an unemployed man and had since given up the business of selling the milk. It was prayed that the case against him be filed. I also find from the record that on 27th June, 1962 the Court expressly directed the charge to show that it was a second offence and indeed the charge also expressly mentioned that he had been convicted earlier for an offence under section 16 read with section 7 of the Prevention of Food Adulteration Act for which he was fined Rs. 75/ - on 9th January, 1960. The sentence imposed by the learned Magistrate, however, was one of the fine of Rs. 300/ - or in default of to undergo rigorous imprisonment for three months. My attention has been drawn on behalf of the Corporation to section 16(1)(ii) where it is stated that for a second offence the offender must be punished with imprisonment for a term which may extend to two years and with fine. The proviso to this provision lays down that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court such imprisonment shall not be less than one year and such fine shall not be less than Rs. 2000/ -. It has been contended before me that the learned Magistrate has completely misconstrued this provision. The counsel has also submitted that though there was only one previous conviction proved, as a matter of fact this was the third offence by the accused and under section 16(1)(iii) the maximum penalty is four years' imprisonment and a similar proviso lays down the minimum imprisonment of two years and a fine of Rs. 3000/ -in the absence of special and adequate reasons on the contrary. Reference has also been made to a Single Bench decision of the Allahabad High Court in Daya Ram v. State, 1969 All. L. J. 751, for the proposition that it is the offence and not the conviction which is relevant for determining whether the enhanced penalty is called for or not. This argument is advanced to demolish the reasoning of the Court below that the previous convictions were held on 9th January, 1960 when he was fined Rs. 75/ - and on 29th December, 1961 when he was fined Rs. 500/ -. The present offence having been committed on 26th September, 1961 this offence can only be treated as second offence and not the third. In any case, so argues the counsel that even for second offence the penalty should have been as laid down in the proviso in section 16(1) (ii).
(3.) ON behalf of the respondent stress has been laid on the contention that adulteration found was nominal and, therefore, this Court should not enhance the sentence. My attention has also been drawn to another Single Bench decision of the Allahabad High Court in Mohd. Shafaat Hussain v. The State, 1959 All. 624, but I do not think this decision in any way advances the respondent's case.;