JUDGMENT M.C. Desai, J. - The applicant was convicted by a First Class Magistrate under Sec. 7 (1), read with Sec. 16 (1) (a) of the Prevention of Food Adulteration Act (Act No; XXXVII of 1954) and sentenced to undergo "rigorous imprisonment for a period of one year in the ordinary class." The offence proved against him was that on 10-7-1957 be sold adulterated milk. While awarding the sentence the Magistrate took into consideration the fact that for a similar offence he was convicted on 29-7-1957. 2. The applicant preferred an appeal which was dismissed by the Sessions Judge. In his judgment the learned Sessions Judge wrote that conviction under "Sec. 7 (1) read with Sec. 16-A" of the Act was maintained. He should have been careful in nothing the law under which he was convicting; there is nothing like Sec. 16-A in the Act. 3. Section 16 (1) (a) reads as follows:- "If any person whether himself or by any person on his behalf..... stores, sells or distributes, any article of food in contravention of any provisions of this Act .....he shall, ..... be punishable (i) for the first offence with imprisonment for a term which may extend to one year or with fine ...... or with both: (ii) for a second offence with imprisonment for a term which may extend to two years "and with fine: Provided that in the absence gatory as imprisonment. The Magistrate of special and adequate reasons such imprisonment shall not be less than one year fine and the learned Sessions Judge has not and such fine shall not be less than rupees noticed this illegality. two thousand." 4. It is not clear from the judgment of the Magistrate whether he treated the offence committed by the applicant on 10-7-1957 as the first offence and punished him under Sec. 16 (1) (a) (i) or as a second offence and punished him under Sec. 16 (1) (a) (ii). His reference to the previous offence for which he was convicted on 29-7-1957 is ambiguous, because he could take the previous conviction into consideration even for the purpose of determining the sentence to be imposed under Sec. 16 (1) (a) (i) treating the offence as the first offence. It was his duty to make the position clear but it seems too much to expect correct and precise language from a magistrate in this State. It was his duty to make the position clear but it seems too much to expect correct and precise language from a magistrate in this State. The learned Sessions Judge has treated the offence, as a second offence and the punishment, as imposed under Sec. 16(1) (a) (ii). 5. I proceed on the assumption that the applicant has been punished under Sec. 16(1) (a) (ii). The punishment imposed is illegal inasmuch as no fine has been imposed. Under this section the accused must be sentenced to imprisonment and fine both. The difference in the words used in clause (i) and clause (ii) shows that while for the first offence fine is not compulsory and may or may not be imposed, for a subsequent offence it is compulsory and the punishment must include imprisonment and fine both. The proviso also makes this clear; a minimum is prescribed not only for the imprisonment but also for the fine. It would have been use-less to prescribe a minimum for the fine if imposition of fine were optional and not obligatory. The difference between the language used in clause (ii) and that used in Secs. 302, 325, 366, 457, I.P.C., etc. in which imprisonment is compulsory and the imposition of additional punishment of fine optional and that used in Sec. 379, 147, 170, 224, 323, I.P.C., etc., in which neither imprisonment nor fine is compulsory and the punishment may consists of either of them or both, should be realised. Clause (ii) required that the offender must be punished, and not that he is only liable to be punished, with imprisonment and fine. Fine is as much obligatory as imprisonment. The Magistrate has not explained why he did not impose fine and the learned Sessions Judge has not noticed this illegality. 6. It was argued that the applicant could not be punished under Sec. 16(1) (a) (ii) because the offence was committed before conviction for the previous offence. What was contended is that this provision will not apply unless the offence is committed after conviction for a previous offence. There is no force in this contention. The words used in the two clauses (i) and (ii) are "for the first offence" and "for a second offence." Clause (ii) does not take into consideration the date of conviction for the first offence. There is no force in this contention. The words used in the two clauses (i) and (ii) are "for the first offence" and "for a second offence." Clause (ii) does not take into consideration the date of conviction for the first offence. The offence for which the applicant has been convicted was unquestionably a second offence; it was certainly not the first offence and it was certainly not a third or any subsequent offence. He had previously committed one offence (for which he was convicted on 29-7-1957) and then he committed the present offence. The present offence did not cease to be a second offence merely because it was committed before conviction for the first offence. The date of commission of an offence does not depend upon the date on which the conviction is recorded for it. An offence committed on a certain date is an offence committed on that date regardless of the date on which the offender is convicted for it.It may be essential for the accused to have been convicted for the previous offence and the conviction may be the only proof of its commission but no other purpose is to be served by the conviction and the date of it is wholly irrelevant. The relative order of offences depends upon the dates on which they are committed. Offences are the first offence, a second offence, a third offence etc. according to the order in which they are committed. The contention on behalf of the applicant amounts to considering the date of commission of another offence for determining the order in which the two offences or the dates of conviction for one offence and the date of the other. The offence for which the applicant was convicted on 29-7-1957 was admittedly committed before 10-7-1957; it was, therefore, the first offence and if it was the first offence the offence committed on 10-7-1957 must necessarily be a second offence; it cannot possibly be any other kind of offence. 7. The language used in clauses (i) and (ii) is different from the language used in Sec. 16 (2), where the date of conviction is taken into account and not the date of commission of the offence. 7. The language used in clauses (i) and (ii) is different from the language used in Sec. 16 (2), where the date of conviction is taken into account and not the date of commission of the offence. When the Legislature used one kind of language in sub-Sec. (1) and a different kind of language in sub-Sec. (2) , the same meaning cannot be given to the two and the words "for a second offence" used in Sub-Sec. (1) must not be interpreted to mean "for an offence committed after conviction for a previous offence." The applicant was, therefore, rightly punished under Sec. 16 (1) (a) (ii). 8. In the King v. The Licensing Justices for the County Borough of South Shields, (1911) 2 K. B., 1 the words "for the second offences" occur ring in Sec. 3 of the Licensing Act, 1872, (35 and 36 Victoria C. 94) were interpreted differently. The section lays down:- "Any person selling or exposing for sale by retail any intoxicating liquor which he is not licensed to sell by retail..... shall be subject to the following penalties; that is to say, (1) For the first offence he shall be liable..... (2) For the second offence he shall be liable and he may be dis qualified from holding any licence...... In addition to any other penalty any person convicted of a second or any sub sequent offence shall forfeit licence." 9. On 4-11-1910 one M. committed two offences under Sec. 3 for which he was prosecuted on 9-11-1910 and was convicted on 16-11-1910. M. continued to carry on the business in spite of the convictions and when he applied for renewal of his licence, it was refused by the Licensing Justices on the ground that it was forfeited by his second conviction. The Court of appeal held that neither of the two convictions recorded on 16-11-1910 could be said to be a conviction for the second offence. The Court of appeal held that neither of the two convictions recorded on 16-11-1910 could be said to be a conviction for the second offence. Lord Alverstone, C.J. observed at page 8: "The enactment aims at a persistent breach of the law after a previous conviction, and though the section does not in terms say that the offence to be punished with the heavier penalty must be one committed after a previous conviction for a similar offence, it is not reasonable to say that where a person commits three offences under the section on the same day a different penalty attaches to each of those offences. I have come to the conclusion that in this particular part of the section a "second offence" means an offence committed after a previous conviction." At page 9 it was pointed out that that the accused was convicted for two offences on the same day was not enough to prove that one of them was a second offence within Sec. 3. This case is distinguishable on facts from the present case. Two offences may be committed simultaneously or practically simultaneously so that it is impossible to say that one of them is a first offence and the other a second offence and two or more offences may be committed simultaneously so that they taken together amount to one offence. The Court of Appeal had not to deal with a case in which the accused had committed two offences separately so that one of them was bound to be a first offence and the other a second offence, or a case in which the accused was convicted at two different times so that one conviction admittedly preceded the other. The applicant committed the two offences in the present case so independently of each other that they could not be said to be tantamount to commission of one offence. He was also convicted separately and one conviction was subsequent to the other. The English Licensing Act did not contain any provision similar to that of Sec. 16 (2) of the Prevention of Food Adulteration Act. When the Indian Legislature itself used "a second offence" at one place and "any person convicted of an offence under this Act commits a like offence afterwards" at another place, it cannot be said that both mean the same thing. When the Indian Legislature itself used "a second offence" at one place and "any person convicted of an offence under this Act commits a like offence afterwards" at another place, it cannot be said that both mean the same thing. If it had intended that Sec. 16 (1) (ii) should apply to an offence committed after conviction for an offence it would have used language similar to that used in Sec. 16 (2). The interpretation that the second offence must follow conviction for a previous offence was expressly limited to the particular case and is not accepted universally. The cases cited in the English and Empire Digest, volume 30, pages 91 and 92, show that it is enough if the subsequent offence was committed after a complaint had been .lodged for the first offence and that it is the fact of a first offence and not a first conviction that attaches the increased punishment to the second offence. In British Doughnut Co. Ltd. v. Dabs Viscount Caldecote, C.J. said that when the dates on which the offences were committed are stated, all that need be said to show that one of them is a subsequent offence is said. In that case the second offence was certainly committed after conviction for the first offence but the date of conviction was not considered at all. 10. The sentence imposed is not higher than what could have been imposed under Sec. 16 (1) (a) (i) and could be maintained even if it were held that the case is governed by clause (i) and not (ii). I do not understand what is "one year in the ordinary class." There is nothing like this in the Code and the Magistrate should not have used such meaningless and useless words in the judgment. 11. There is nothing to be said on facts. The application is dismissed and the applicant shall surrender himself to undergo the sentence.