BERI, J. - (1.) BY his order dated 13-3 1969 the learned Additional Sessions Judge, Sirohi, has recommended under sec. 438 Cr. P. C. that a fine of Rs. 15/- awarded to Sanwala, who pleaded guilty to a charge under sec. 7/16 of the Prevention of Food Adulteration Act (hereinafter called "the Act") for selling adulterated milk, was inappropriate and he be sentenced appropriately. This Court issued a notice for enhancement of sentence on 17-7-1970.
(2.) THE Food Inspector, Sirohi. , on 26-11-1967 served a notice on accused Senwala; he purchased milk from him on payment, put it into three dry and clean phials in the presence of two motbirs; sealed the phials and sent one of them to the Public Analyst, who after examination found the sample to be adulterated because its solid non-fat content was higher than the standard. A complaint was lodged under sec. 16 of the Act on 27-2-1968 by the Food Inspector, Municipal Board, Sirohi. THE two motbirs, in whose presence milk was purchased, were examined and the Food Inspector himself entered the witness-box. THE accused did not even cross-examine the witnesses. A charge was framed under sec, 7/16 of the Act and the accused in answer said that he was guilty to the charge and he did not want trial. THE learned Sub-Divisional Magistrate, Sirohi on 7-10-1968 convicted the accused under sec. 7/16 of the Act, but having regard to the age of the accused and his poverty inflicted only a fine of Rs. 15/- and in default of the payment of fine he was to undergo 2 days' simple imprisonment. THE State preferred an application before the Additional Sessions Judge complaining that the sentence awarded was inadequate and the learned Judge has made the reference as indicated above. Mr. Mohanani, learned counsel for the appellant, relying on this Court's decision in The State vs. Beharilal (D. B. Criminal Reference No. 23 of 1969, decided on 11th February, 1971), argued that there was no justification for the learned Sub-Divisional Magistrate to have awarded a sentence of less than 6 months and a fine below Rs. 1,000/- as laid down in sec. 16 (1) of the Act. Mr. Ugamraj Tatia, learned counsel for the accused respondent, argued that as a notice for enhancement of sentence under sec. 439 (6) of the Code of Criminal Procedure was issued, he was entitled to urge that the conviction of Sanwala itself was illegal. There was in this case no "sanction" as required by sec. 20 of the Act. He further submitted that if having regard to the age and poverty of the accused the learned Magistrate had taken a lenient view of the case it did not call for any interference. On the record of the trial court there is a document signed by Kripa Shanker Kashiva, Licensing Authority, Municipal Board, Sirohi, who purporting to exercise his powers under sec. 20 of the Art authorised the prosecution of Sanwala. The document has not been marked as an exhibit. In view of the presumption available under sec. 114 of the Indian Evidence Act we shall be justified in assuming that the authority which exercised its powers under sec. 20 of the Act on behalf of the Municipal Board, Sirohi, acted in accordance with law and no further investigation of the question was necessary because the accused did not want a trial and he pleaded guilty to the charge. The second contention of the learned counsel in this context was that the licensing Authority did not apply its mind in sanctioning the prosecution at Sanwala. He relied on a decision of this Court in The State vs. Mohamed Bux (1 ). Sec. 20 of the Act reads: "sec. 20. Cognizance and trial of offences: (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central. Government or the State Government or a local authority. Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in sec. 12, if he produces in court a copy of the report of the public analyst along with the complaint. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this Act. " [note - The italic is ours. ] In the Rajasthan case (1) it has been observed that before granting a written consent as required by this section the authority competent to do so should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a court. These observations no doubt lend a limited support to the contention raised by the learned counsel for the accused. The observations in the Rajasthan case (1) owe their authority to State of Bombay vs. Parshottam Kanaiyalal (2), where their lordships of the Supreme Court made the following observatins: "to read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable, but the further implication that the complainant must be named in the written consent does not, in our opinion, follow. " The language employed by the statute is "written consent" as distinguished from a sanction. This question received the pointed attention of their Lordships of the Supreme Court in Dhian Singh vs. Municipal Board, Saharanpur (3), and Hegde, J. , delivering the judgment of the Bench, made the following observation, - "mr. Garg, learned counsel for the accused, urged that a permission under sec. 20 of the Prevention of Food Adulteration Act, 1954 to file a complaint is a condition precedent for validly instituting a complaint under the provisions of that Act. The fulfilment of that condition must be satisfactorily proved by the complainant before a court can entertain the complaint. Without such a proof, the court will have no jurisdiction to try the case. In support of that contention of his he sought to take assistance from the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka vs. The King, 75 Ind App. 30 AIR 1948 PC 82 and Madan Mohan Singh vs. The State of U. P. , AIR 1954 SC 637. Both those decisions deal with the question of the validity of sanctions given for the institution of certain criminal proceedings. The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions. The Judicial Committee as well as this Court has laid down that in such cases, the court must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts. The ratio of those decisions had no bearing on the facts of this case. Under sec. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question. " The aforesaid excerpts have brought out authoritatively the distinction between a sanction and the written consent contemplated by sec. 20 of the Act. The requirement of sanction including the application of one's mind has been held to be not necessary under sec. 20 of the Act for a prosecution. The decision in Parshottam's case (2) was not brought to the notice of the learned Judges who decided Dhian Singh's case (3 ). However, in the present case we find that there is a written consent of an appropriate authority for the prosecution of Sanwala, although it has not been marked as an exhibit. The grievance regarding the application of mind does not survive in view of the observations of the Supreme Court in Dhian Singh's case (3 ). We have already observed in The State vs. Beharilal that the Legislature while amending the Prevention of Food Adulteration Act provided a minimum sentence of 6 months' rigorous imprisonment and a fine of Rs. 1,000 for selling adulterated food. We said, "this is an expression of the righteous indignation of the community against offences of this kind with the object of preserving and promoting the well being of the society. A relaxation from the rigour of the minimum is permitted for any adequate and special reasons to be mentioned in the judgment. The ambit of the Court's disciretion in awarding a sub minimum sentence is to be regulated by reasons which are special as distinguished from commonplace. Such reasons have to be adequate that is sufficiently weighty. The Court has to further express those reasons in the judgment enabling the superior Courts and the society to know the grounds for the grant of indulgence. What could be adequate and special reasons for imposing a sub-minimum sentence? Such reasons must necessarily relate to the gravity of the crime; the position of the offender and the surrounding circumstances The Court while awarding punishment has to seriously consider the commands of law and the ambit of the judicial discretion conferred by it It is plain that the object of providing a minimum substantive sentence and substantial pecuniary punishment is to discourage and deter antisocial elements in society, who motivated by avarice, cause incalculable harm to human health. The need for amending this part of the law presumably arose from the prevalence of the evil. " The learned Magistrate in the case before us has given two grounds for awarding a fine of Rs. 15/- only. The first is the age of the accused. We have carefully looked into the record and the age has not even been mentioned Because the accused has signed his own bond we have reasons to presume that he is not a minor. There is no data on the record to warrant an indulgence on the ground of age. The second reason which persuaded the learned Magistrate to award the sentence of fine is the poverty of the accused. So far as poverty is concerned, there is no material on the record to indicate the same. Accordingly we cannot but accept the reference and award at least the minimum sentence provided by law to accused Sanwala. We accept the reference and order that accused Sanwala should undergo 6 months' rigorous imprisonment and to pay a fine of Rs. 1,000, in the event of his failing to pay the fine he should further undergo 2 months' rigorous imprisonment. . ;