Order.- This is a petition under section 439, Criminal Procedure Code, by a merchant convicted and sentenced under section 16 (1) of the Prevention of Food Adulteration Act, 1954 (hereafter referred to as Act) for an offence under section 7 of the Act. 2.The petitioner has been sentenced to undergo six months rigorous imprisonment and to pay fine of Rs. 1.000 with a default sentence of two months, by the First-Class Magistrate. Raichur, in C.C. No. 500 of 1970. In appeal, the learned Sessions Judge, Raichur, confirmed the said conviction and sentence in Crl.A. No. 29 of 1972. Hence this petition. 3. The facts leading up to the petition, briefly, are: The petitioner is a ‘Kirana’ merchant carrying on a retail business in grains and other articles of food in Raichur. On 30th August, 1969, at about noon, P.W. 2 the Food Inspector of Raichur, went to (he shop of (he petitioner along with certain pane has, one of whom has been examined as P.W. 1, and after giving him an intimation as per Exhibit P-2 that he would be purchasing ‘Channa Atta’ for the purpose of analysis, purchased 600 grams of that article for a price of 70 Paise. He divided the flour so purchased into three parts then and there and after putting each of such parts into three separate envelopes, sealed those packets with his seal. He delivered one of such packets to the petitioner. He, thereafter, prepared the panchanama, Exhibit P-1. Then he sent one of the remaining packets with another sample packet seized from the petitioner to the Public Analyst, specially designated for the purpose of the territory of Raichur Municipality. The remaining one packet has since been produced in Court. The Public Analyst issued a report as per Exhibit P-7, to the effect that the sample had been adulterated. Thereupon, P.W. 2 launched the present prosecution. The defence has been one of total denial of all the material circumstances on which the prosecution has been based. The petitioner was, however, found guilty and convicted as aforesaid. 4. On behalf of the petitioner, several contentions have been urged by Sri B. S. Raikote, his learned Advocate. I propose to deal with the most material of them in order in which they were presented. 5. The first contention is that the requirements of rule 18 of the Rules have not been complied with. 4. On behalf of the petitioner, several contentions have been urged by Sri B. S. Raikote, his learned Advocate. I propose to deal with the most material of them in order in which they were presented. 5. The first contention is that the requirements of rule 18 of the Rules have not been complied with. The argument is that (he packets seized from the petitioner and the memorandum and specimen impression of seal used had not been separately sent to the Public Analyst, The inference sought to be drawn from this circumstance is that there was a possibility of mistaken identity. This question has been dealt with by the learned Sessions Judge in the context of the letter addressed to the Public Analyst, which is Exhibit P-4, and his report, Exhibit P-7. Before me nothing material was pointed out by Sri Raikote to disagree with this conclusion of both the Courts below. 6. The next contention, which was but faintly urged, is that the simple picket produced into Court by P.W.2 had not been marked as a material object. There is, no doubt, this omission on the part of the prosecution. But I have not been shown any reason as to how this irregularity, it being only such, in my opinion, would affect the case against the petitioner. Hence I find no merit in this contention. 7. The next contention is that the Public Analyst in question had not been duly appointed as required by section 8 of the Act. The argument is that the Senior Chemist of the Public Health Department was the person earlier appointed as per the Government Notification No. L IHC 57, issued on 26th August, 1958. But, since the issue of the said Notification, the Public Health Department had been reorganised by a Government Order No. PLM 623 PET 61, issued on 27th June, 1962, and the designation of the "Senior Chemist and Public Analyst" has since been changed into "Senior Chemist and Public Analyst, Food and Water Analysis Section". The contention is that in view of the change a fresh Notification under section 8 of the Act ought to have been issued and since no such Notification was forth-coming, the report under Exhibit P-7 could not be made the basis for convicting the petitioner. This contention is clearly misconceived. The contention is that in view of the change a fresh Notification under section 8 of the Act ought to have been issued and since no such Notification was forth-coming, the report under Exhibit P-7 could not be made the basis for convicting the petitioner. This contention is clearly misconceived. It is to be clearly seen from the Government Order relating to such reorganisation that the designation of the post of "Senior Chemist and Public Analyst" remains unchanged. The only change, made therein is that such post has been shown against the Food and Water Analysis Section, of the same Department of Public Health. This is a mere administrative matter and clearly, in my opinion, does not call for a fresh appointment under section 8 of the Act. Hence this contention also must fail. 8. The only remaining contention of any importance bears on the question of sentence. The argument of Sri Raikote is that both the Courts below have not examined the question of sentence from the point of view of the proviso to section 16 (1) of the Act. Indeed, it is submitted that the sentence has been imposed keeping in view only the prescription as to the minimum sentence enacted in the main part of that section. It is further submitted that in view of certain circumstances present in the case, the case of the petitioner ought to have been dealt with under the proviso referred to earlier. In support of this view, he relied on the decision of Gurumukh Singh v. State of Punjab1. It seems to me that 1 his contention deserves to be accepted as well merited. 9. It is necessary to set out the portions relevant for our present purpose, in section 16 (1) of the Act: "16 (1). In support of this view, he relied on the decision of Gurumukh Singh v. State of Punjab1. It seems to me that 1 his contention deserves to be accepted as well merited. 9. It is necessary to set out the portions relevant for our present purpose, in section 16 (1) of the Act: "16 (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) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; he shall, in addition to he 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 (1) of clause (i) of section 2 or misbranded under subclause (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 of 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 * * *". 10. It is plain from the above provisions hat the facts of the present case clearly fall within the purview of section 16 (1) (a) (ii). It is further clear that it would fail under clause (ii) of the proviso, providing for the imposition of punishment less than the minimum prescribed if conditions therein were fulfilled. It is also of some significance to note that here is. a difference between the main penal provision and the proviso on the question of imposition of sentences of imprisonment and fine. It is also of some significance to note that here is. a difference between the main penal provision and the proviso on the question of imposition of sentences of imprisonment and fine. While the main provision makes the imposition of imprisonment and fime mandatory under both the heads, the proviso enables imposition of such sentences in the alternative, without making them mutually exclusive. Therefore, in any case of review of sentence, in cases falling with the proviso in question, this difference will have to be borne in mind. This would not, however, dispense with the requirement as to ‘adequate and special reasons to be mentioned in the judgement’ enjoined thereby. 11. In Gurumukh Singh’s case1 the Supreme Court had occasion to interpret section 16 (1) (a) of the Act, along with the proviso in question. That was a case where the High Court had enhanced the sentence and imposed on the appellants the minimum sentence prescribed under the main provision of section 16 (1) of the Act. The overt act attributed to the appellants was that they had not taken out or renewed the licences for enabling them to carry on the trade in sweetmeats and such other articles. One of the contentions urged was that selling articles of food without a licence would not amount to adulteration within the meaning of the Act. The Supreme Court, after noticing Rule 5o (5), which enjoined such taking out of a licence, has stated the position thus: "....It is so because granting a license for manufacture, stock or exhibition of any of the articles of food in respect of which a licence is required, the licensing authority shall inspect the premises and satisfy itself that it is free from sanitary defects, and the applicant for the licence has to make such alterations in the premises as may be required by the licensing authority for the grant of a licence. When a licence is granted the licensee must observe the conditions of the licence such as preparing articles of food under hygienic conditions and keeping them covered in clean containers protected against dust, disease bearing flies and other noxious elements". 12. When a licence is granted the licensee must observe the conditions of the licence such as preparing articles of food under hygienic conditions and keeping them covered in clean containers protected against dust, disease bearing flies and other noxious elements". 12. I have referred to the above enunciation only in order to point out that in principle there cannot be any difference between that case and the one on hand, in so far as the application of the proviso in section 16 (1) is concerned. 13. But the enunciation in Gurumukh Singh’s case1, which is of greater relevance to the purpose on hand occurs in para. 9 of the said report and reads thus: "It is not the case of the prosecution that the appellants sold or stored any adulterated or misbranded or prohibited articles of food. Even in such cases if the offence is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 or misbranded under sub-clause (x) of section 2 a lesser sentence under the proviso can be awarded. As pointed out in Jagadish Prasad v. State of West Bengal2, the offence under the Act being anti-social crimes affecting the health and well being of our people, the Legislature having regard to the trend of Courts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum file to be imposed even for a first offence. The reason for the Legislature to make the exception is not that the offences specified are not considered to be serious but the gravity of the offence having regard to its nature can be less if there are any special or adequate reasons. In our view, though offences for adulteration of food must be severely dealt with, no doubt depending on the facts of each case which cannot be considered as precedents in other cases, in this case having regard to the fact that the offence is only one for non-renewal of a licence within a reasonable time, and the appellants as pointed out by the trying Magistrate were only petty traders a mitigation in the sentence is justified. No doubt, as the High Court points out, the reason given by the Trial Court that the accused pleaded guilty and were repentant may not be adequate. But in the special circumstances pointed out by us a lesser sentence is called for...." 14. If the facts and circumstances present in the instant case were to be viewed in the light of the aforesaid enunciations, I am clearly of opinion, that the sentence imposed is unduly harsh and excessive and a mere sentence of fine would well have met the ends of justice. I say so for these reasons: (1) the percentage of adulteration in ‘Channa flour’ was only 1.62 per cent and this could well have been not uniform with respect of all the stock possessed; (2) though ‘kesaridal’ was also found, its quantity has not been specified in Exhibit P-7, the report of the Analyst, and this might well mean that that article was not present in any appreciable quantity; (3) the convict is only a ‘kirana’ (retailer) merchant, and probably petty at that in that he is driven to sell even ‘Channa flour’, instead of dealing in major foodgrains. 15. For the above reasons, and taking into account the common failing of the class of people to which the petitioner belongs and the fact that such offences must be put down with a heavy hand, I think ends of justice will be amply served if the petitioner is sentenced to a fine of Rs. 800 only and in default to undergo three months simple imprisonment. Therefore, the sentence of imprisonment and fine imposed on the petitioner stand modified into one of fine only as mentioned, 16. Subject to the above modification as to sentence, this petition is dismissed. S.V.S. ----- Petition dismissed.