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1974 DIGILAW 163 (PAT)

District Board, Patna v. Mahadeo Sao

1974-08-26

MADAN MOHAN PRASAD, S.ALI AHMAD

body1974
Judgment MADAN MOHAN PRASAD, J. 1. This is an application in revision for enhancement of the sentence awarded by the Magistrate under Sec.16(1)(a)(ii) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) read with Rule 50(1)(m) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). 2. It appears that the opposite party was prosecuted on the report of an Assistant Health Officer-cum-Food Inspector alleging that on the 10th December, 1967, he along with others had visited the shop of the Opposite party and found him manufacturing, selling and storing for sale nimki, biscuits and pawroti without any licence. 3. The defence plea was a denial of the prosecution story and innocence of the accused. 4. The learned Magistrate found the prosecution case proved as against the opposite party and convicted him as stated above. He, however, sentenced the opposite party to pay a fine of Rs. 100.00 only and, in default, to undergo rigorous imprisonment for one month. Being aggrieved with this order of sentence, the petitioner has come up with this application. 5. Learned Counsel for the opposite party has not challenged the legality of the conviction but urged only on the question of sentence. 6. Learned Counsel for the petitioner has contended that the only reason given by the learned Magistrate for awarding a sentence lesser than the one prescribed by Sec.16(1) of the Act is that the offence is a minor one and of technical nature. It is said that this is neither an adequate reason nor special reason and the Magistrate, therefore, was bound to award the minimum sentence prescribed by Sec.16(1) of the Act, namely, an imprisonment for six months and a fine of Rs. 1000.00. 7. It will be relevant to refer to the relevant portions of Sec.16 of the Act. "16. It is said that this is neither an adequate reason nor special reason and the Magistrate, therefore, was bound to award the minimum sentence prescribed by Sec.16(1) of the Act, namely, an imprisonment for six months and a fine of Rs. 1000.00. 7. It will be relevant to refer to the relevant portions of Sec.16 of the Act. "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) 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; xxxx He shall, in addition to the penalty to which he may be liable under the provisions of Sec. 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 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 judgement, impose a sentence of imprisonment for a term of less than six months or of fine 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." 8. It will appear from a reading of the aforesaid provisions that in the aforesaid cases of Sec.16(1)(a)(ii) where there is contravention of any of the provisions of this Act or of any rule made thereunder, the accused shall be punished with imprisonment for a term which shall not be less than six months and a fine which shall not be less than Rs. 1,000/-. 1,000/-. The use of the word and here makes it clear beyond doubt that the sentence has to be one of imprisonment and fine or both. That however, is subject to the application of the proviso. In case, the provision contained in the proviso to this section is applied, in other words, if there are any adequate and special reasons, the court may impose a sentence of imprisonment for a term of less than six months or a fine of less than Rs. 1,000.00 or of both. Reading the proviso, it is quite clear that it is worded differently from the provision contained in the main Sub-Section. In the first part of the section, the word and has been used, whereas in the proviso the word or has been used. It is thus clear that once the proviso is made use of, it is open to the court either to award a sentence of imprisonment or of fine, and less than what has been prescribed earlier in this section. The aforesaid view regarding the interpretation of this section finds support from the proviso itself. It will be noticed that later it is said "or of both." The legislature has thus made it quite clear that when a case comes within the proviso, in other words, if there are adequate and special reasons, it is open to the court either to award a sentence of imprisonment for a term of less than six months or of fine less than Rs. 1,000.00 or of both. 9. Learned Counsel for the parties have not been able to bring to our notice any reported or unreported decision of this Court or of any other Court where the point with regard to the interpretation of the proviso in respect of the sentence has been discussed. Our attention was, however, drawn to an unreported decision of this Court (Cr. ReV/s. 62 and 63 of 1970 (Pat)) District Board, Patna, in both the cases V/s. Shri Kesho Sao where their Lordships awarded a sentence of Rs. 250.00 and, in default, to undergo rigorous imprisonment for two months. As will appear, the point was not discussed in that judgement. All the same, the sentence, as state above, was passed. ReV/s. 62 and 63 of 1970 (Pat)) District Board, Patna, in both the cases V/s. Shri Kesho Sao where their Lordships awarded a sentence of Rs. 250.00 and, in default, to undergo rigorous imprisonment for two months. As will appear, the point was not discussed in that judgement. All the same, the sentence, as state above, was passed. There are two decisions of a learned single Judge of this Court in The Chairman, Jugsalai Notified Area Committee V/s. Mukhram Sharma, ( AIR 1969 Pat 155 ) : (1969 Cri LJ 638) and Dilo Sao V/s. State of Bihar, 1970 Pat LJR 474 : (1971 Cri LJ 1047). In both the cases, the learned Judge held that the offence was covered by the proviso to Sub-Section (1) of S.16 and the sentence of imprisonment was not compulsory. For the reason stated above, I have come to the same conclusion. 10. On behalf of the opposite party, it has been urged that the offence is merely technical and that as observed in an unreported decision by a learned single Judge of this Court in Cr. ReV/s. 610 of 1969, (Narayan Singh V/s. The State) decided on 9-9-1970 (Pat) the provisions should not be rigorously applied to small shop keepers but real culprits who are responsible for adulteration should be found out. I am tempted in this connection to quote what was said by I.D. Dua, J. of the Punjab High Court (now of the Supreme Court) in Mehar Chand Pohlo Ram V/s. The State, (1964) 1 Cri LJ J 606 (Punj) : "The evil of adulteration of food articles has spread its net so wide that it is posing a serious threat to the health of the whole society. The Parliament too has considered it fit and proper in public interest to amend the law by enhancing penalties for offences against the law of prevention of food adulteration. It is undoubtedly a matter of grave concern to the whole society and is indeed mortifying to observe that unadulterated food stuffs are so extremely difficult for the common man to obtain in the open market. The situation has assumed such a serious magnitude that offences of the type before me must, in the interest of the society, call for deterrent sentences." 11. The situation has assumed such a serious magnitude that offences of the type before me must, in the interest of the society, call for deterrent sentences." 11. I am not inclined to accept the view that an offence under the Prevention of Food Adulteration Act is either technical or of minor nature. The view of the legislature has been expressed by an amendment of the section providing the minimum penalty which the Courts have to impose. In the legislatures view, it is grave. For this reason, I am of the view that Courts must be cautious in the application of the proviso contained in Sub-Section (1) of S.16 of the Act. It will be noticed that the legislature has used the words adequate and special reasons. Courts must take notice of these words. It is not that by and large cases under the Prevention of Food Adulteration Act should or ought to be disposed of with a nominal sentence. That would be frustrating the view of the legislature expressed so clearly which, it is the duty of the Courts, to take notice of. I make this observation in view of the fact that the petitioner in this case has given a list of as many as 143 cases between the years 1966 and 1969 where the sentence passed were only of a fine of Rupees 100.00 or less. I find that a similar list was produced before this Court in the unreported case of District Board, Patna (supra). Their Lordships had before them in that case a list of 150 prosecutions launched between 1967 to 1969 where the Magistrates had imposed merely a fine of Rs. 100/-. It appears from what has been stated above that the Magistracy would do well to take particular notice of the words to which attention has been drawn in the earlier part of this judgement. 12. Coming now to the case before us, the question is as to what should be the proper sentence in the present case. I have no doubt that the Magistrate has given neither adequate nor any special reasons much less adequate and special reasons for awarding such a light sentence. I find, however, that a number of years have elapsed since the judgement of the Magistrate was delivered. That was done on the 19th September, 1969. We are told that the opposite party had already deposited the fine. I find, however, that a number of years have elapsed since the judgement of the Magistrate was delivered. That was done on the 19th September, 1969. We are told that the opposite party had already deposited the fine. That long delay, after which the sentence is going to be enhanced, is undoubtedly one adequate reason why we should treat this case as covered by the proviso to Sub-Section (1) of Sec.16 of the Act. It is also true that the opposite party is a very small shop keeper in a village. I do not think, in view of the long delay which has elapsed, that it would be proper to pass a sentence of imprisonment for any period. I think that there should be only a sentence of fine. In the unreported case of District Board, Patna (Supra), their Lordships, in similar circumstances, had enhanced the sentence to a fine of Rs. 250/-. I am also inclined to enhance the sentence in this case to a fine of Rupees 250.00 and, in default, to undergo rigorous imprisonment for two months. The fine already deposited by the opposite party shall be deducted out of the aforesaid amount and the opposite party shall deposit the balance of Rs. 150/-. 13. In the result, this application is allowed and the sentence is enhanced, as indicated above. ALI AHMAD, J. 14 I agree.