JUDGMENT : G.K. Misra, J. - The Petitioner has been convicted u/s 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to under go a period of five months R.I. and to pay a fine of Rs. 700/ -, in default to undergo R.I. for one month more, by the Sub-divisional Magistrate, Puri. In appeal, the sentence was reduced, to a substantive sentence of two months' R.I. and the fine was reduced to Rs. 200/ - in default, the Petitioner was to undergo R.I. for one month. 2. The Petitioner is a dealer in grocery articles in the Municipal market at Puri. On 3rd of August 1962, the Food Inspector of puri Municipality purchased mustard oil from him and took samples from two tins and sent the same to the Public Analyst who reported that it was adulterated. The Petitioner denied the charge. Both the Courts have found that the mustard oil was adulterated. The finding is not assailed here. The revision is passed only on the question of sentence. 3. Mr. Patnaik contends that the Petitioner did not commit a second offence and as such Section 16(1)(a)(ii) Proviso has no application to this case. To appreciate the contention, the section may be extracted.. Section 16(1)(a)(ii) Proviso-If any person whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder, he shall, in addition to the penalty to which he may be liable under the proviso of Section 6, be punishable (i) for the first offence with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, 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 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 two thousand rupees. 4. 4. The proviso is referred as both the learned Courts below committed a serious error of law in imposing the substantive sentence of imprisonment for less than one year without assigning any special and adequate reasons in the judgment, though their finding was that a second offence had been committed. 5. To appreciate Mr. Patnaik's contention certain dates may be noticed. In another case, adulterated turmeric powder was seized from the Petitioner on 28th of March, 1962 and the case ended in a conviction u/s 16, (1)(a) on 4-3-1963. In this case, the adulterated mustard oil was seized on 3rd of August, 1962 and the Petitioner was convicted by the S.D.M. on 12th of February, 1965. Mr. Patnaik contends that by 3rd of August, 1962, the Petitioner had not been convicted u/s 16(1)(a) of the Act. The subsequent conviction on 4-3-1963 would not be taken into consideration while convicting the Petitioner in this case as being a conviction for the second offence. 6. The point of distinction is whether the dates of the commission of offences or the dates of conviction would be taken into consideration in deciding that a second offence was committed. There was some conflict of authority on this point. In Daya Ram v. State 1959 A.L.J. 651, the view taken was that the dates of commission of the offences were relevant. Once the offence had been committed the conviction was a natural consequence. This decision was dissented from The State Vs. Badri. 152; Badri v. State AIR 1966 Raj. 202 ; Aliyarukunju Hamsakutty and Others Vs. Food Inspector, Mannancherry Panchayat and Another. It is unnecessary to examine each of these case in detail. The matter is concluded by the observation of the Supreme Court in Jagdish Prasad Vs. State of U.P.. In paragraph 10, their Lordships observed thus; The words "second offence" must, therefore, mean any act which is an offence under any of the clauses in the Sub-section which has been done later in point of time after a conviction for an offence under the Act, no matter whether the acts or omissions constituting the two offences are of the same type or not. 7. On the Supreme Court decision, the question whether an offence has been committed for the second time or not would be determined with reference to the date of conviction. In this case, the adulterated mustard oil was seized on 38.1962. 7. On the Supreme Court decision, the question whether an offence has been committed for the second time or not would be determined with reference to the date of conviction. In this case, the adulterated mustard oil was seized on 38.1962. By then, the Petitioner bad not been convicted of an offence u/s 16(1)(a) of the Act. Consequently the conviction in this case must be taken as the conviction for the first time. The conviction on 4-3-1963 in respect of the adulterated turmeric powder would not be taken into consideration in arriving at the conclusion that a second offence was committed in this case. Both the learned Courts below exercised their jurisdiction illegally in holding that a second offence had been committed by the Petitioner. The Petitioner, therefore, must be convicted u/s 16(1)(a)(i) and not u/s 10(1)(a)(ii). The proviso has therefore no application and imposition of the minimum sentence of one year is not applicable to this case. 8. The next question for consideration is whether in the circumstances, the sentence of substantive imprisonment for two months and a fine of Rs. 200/ - need any modification even if the Petitioner is convicted u/s 16(I)(a)(i). From the judgment of the learned Magistrate it appears that the Petitioner is a retailer and deals with articles of small quantities. Both the learned Courts below inflicted substantive sentence of imprisonment under the wrong impression that the sentence was to be imposed taking into considerations that a second offence has been committed by the Petitioner. As the Petitioner is to be treated as the first offender under the section, a sentence of fine only would meet the ends of justice. I accordingly sentence the Petitioner to pay a fine of Rs. 300/ -, in default to undergo R.I. for one month. Subject to the aforesaid modification in the sentence, the revision is dismissed. Revision dismissed and sentence modified. Final Result : Dismissed