- (1.) THE accused-non-petitioner was convicted under Sec 16 (1) of the Prevention of Food Adulteration Act (No. XXXVII of 1954) (hereinafter referred to as 'the Act') by the Municipal Magistrate, First Class, Udaipur and sentenced him to pay a fine of Rs. 200/ -. THE Municipal Council, Udaipur has filed this revision under S. 439, Cr. P. C. (old) for enhancement of the sentence awarded to the accused-non-petitioner.
(2.) BRIEFLY put the prosecution case is that on November 23, 1969, one Taj Singh with whom we are not concerned in this criminal revision, and Maheshwari Prasad (accused-non-petitioner) were selling milk from the containers placed in Jeep RJY 3448 at 11. 45 a. m. On that day, the Food Inspector saw them selling milk outside Hathipol, at that time, Manoharsingh was purchasing milk contained in the containers. It has been alleged by the prosecution that there were seven 'kothis' of the milk in the aforesaid Jeep, out of which six 'kothis' were empty and the remaining one was full of milk. The Food Inspector purchased 600 mm. of milk and gave 68 n. p. to Tejsingh, who is said to be the servant of Maheshwar Prasad (accused-non petitioner) at that time, the accused was sitting in the Jeep on the seat of the driver. As soon as the accused saw the Food Inspector, he left the Jeep. The purchased milk was divided in to three equal parts and was filled in three clean bottles. Formalin was also added. The bottles were sealed. A 'panchnama' was prepared and specimen seal was fixed. Out of three bottles, one bottle was given to the accused and one bottle was sent to the Public Analyst at Jaipur. The Public Analyst vide Ex P6, found that the milk of which the sample was taken, was adulterated by reason of its containing 22% of added water. After obtaining necessary sanction, a complaint was filed in the court of Municipal Magistrate, Udaipur While the case was pending, Tej Singh died and, therefore, proceedings continued against the accused-non-petitioner only. The accused-non-petitioner pleaded not guilty to the charge. He examined himself under S. 345-A Cr. P. C. (old ). The prosecution examined five witnesses in support of its case. The learned Magistrate found the accused-non-petitioner guilty under S. 16 (1) of the Act and sentenced him to pay a fine of Rs. 200/- as aforesaid. The Municipal Council, Udaipur has filed this revision petition, We have heard Mr. S. K. Sharma for the petitioner (Municipal Council, Udaipur) and Mr. Rajesh Balia, Public Prosecutor. Nobody has appeared on behalf of the accused-non-petitioner despite service of notice. On the basis of the provisions contained in S. 16 of the Act, which were in vogue at the relevant time, and the fact that the accused-non-petitioner was convicted twice previously under section 16 of the Act, it was contended by Mr Sharma that the sentence awarded is grossly inadequate and that there were no adequate special reasons mentioned by the Municipal Magistrate for awarding sentence of imprisonment of less than six months or of fine less than Rs. 1000/- or both imprisonment of less than six months and fine of less than one thousand rupees. Material portion of S. 16, which was in force at the relevant time, read 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 ). . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . (f ). . . . . . . . . . . . . . . . . he shall, in addition to the penalty to which he may be liable under the provisions of Section 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 under sub-clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub-clause (i) of clause (1) of Sec. 2 or misbranded under sub-clause (k) of clause (ix) of that section ; or (ii) if the offence is under sub clause (ii) of clause (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 fine of 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. " The learned Municipal Magistrate has found that the accused has committed offence under sec 16 (1) of the Act, for, the milk that was found in the possession of the accused-non-petitioner in the Jeep, which belonged to him, was adulterated as it contained 22% of added water. The offence under S. 16 (1) (a) (i) is 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. Under the proviso to S. 16 (1), for an offence under sub-clause (i) of cl. (a), which is with respect to article of food which is adulterated under sub-clause (i) of cl (J) of Sec 2, the Court (at the relevant time) was empowered, for adequate and special reasons to be mentioned in the judgment, to impose the sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of one thousand rupees. The learned Magistrate has rest contended by observing as under: ***
(3.) A perusal of Ex. P/ll, which is a judgment rendered in Criminal Case No. 1233 of 1962: Food Inspector vs. Maheswari Prasad, decided on Jan. 8, 1963 shows that the accused-non-petitioner, in that case, was convicted under S. 16 (1) of the Act and was sentenced to pay a fine of Rs. 125/- and in default of payment of the fine to undergo rigorous imprisonment for two months. After the aforesaid decision the accused-non-petitioner committed the second offence on May 29, 1964 and after trial, vide Ex. P/12 dated September 25, 1968, the accused-non-petitioner was convicted under section 16 (1) of the Act and was sentenced to imprisonment upto the rising of the court and a fine of Rs. 300/- and in default of payment of tine to undergo rigorous imprisonment for two moths. The learned Magistrate took notice of the aforesaid two judgments (Ex. P/ll and Ex P/12) and stated a perusal of the aforesaid two judgments shows that in those cases, the sample of the milk was taken from the possession of the accused-non-petitioner, whereas in the case before him, the sample was taken from Tejsingh, who was servant of the accused-non-petitioner and that that milk, of which sample was taken from Tejsingh was found to be adulterated. While awarding the sentence of fine of Rs 200/- , the learned Municipal Magistrate has stated, as mentioned above, that he considers a fine of Rs. 200/- to be proper. The accused has committed first offence on Oct. 17, 1962. He was convicted under sec. 16 (1) of the Act on October 8, 1963 The second offence was committed by the accused petitioner under S. 16 (l) of the Act on May 29, 1964 and he was convicted on September 25, 1968, The third offence u/s. 16 (1) of the Act regarding which the accused-non-petitioner has been found to be guilty by the learned Magistrate, was committed on November 28, 1969, after his conviction for the second offence by Ex. P/12 on September 25, 1968. The learned Magistrate has not given any reasons much less adequate and special reasons in the judgment for awarding the sentence less than six months and fine of less than one thousand rupees, as prescribed under section 16 (1) of the Act at the relevant time. Having considered the judgment of conviction dated May 17, 1973 the relevant provision of Sec. 16 (1) (a) (i) of the Act and the fact that there are on adequate and special reasons for awarding less sentence than the minimum prescribed, we find it difficult to maintain the sentence of fine of Rs. 200/- awarded to the accused-non-petitioner. As it is a third offence and there are no adequate and special reasons, we consider it proper that ends of justice would be met by sentencing the accused-non-petitioner to six months' rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine the accused-non-petitioner will further under go rigorous imprisonment for a period of three months. The revision petition is allowed. While maintaining the conviction of the accused-non-petitioner under section 16 (1) of the Act, we enhance the sentence of fine of Rs. 200/- and order that the accused-non-petitioner will suffer rigorous imprisonment of six months and will pay a fine of Rs. 1000/- and in default of payment of fine, he will undergo further rigorous imprisonment of three months. ;