JUDGMENT - N.B. NAIK, J.:---This is an appeal by the State for enhancement of the sentence awarded by the learned Judicial Magistrate, First Class, Nasik, to the respondent-accused. 2. The facts giving rise to this appeal are briefly these: The accused is a proprietor of the hotel called "Ruchira" at Nasik. On 25th January, 1974. Food Inspector Sonawane visited the hotel and took sample of vegetable Biryani for analysis. The report of the Public Analyst showed that the sample contained (1) tartrazine and (2) carmosine. The Public Analyst therefore, expressed an opinion that the sample contained extraneous coal tar dyes viz., tartrazine and carmosine in contravention of Rule 29 of the Prevention of Food Adulteration Rules, 1955. On these facts the accused was prosecuted. 3. After the evidence of the Food Inspector was recorded the Court framed a charge (Exh. 2) as under: "That you on or about the 25th day of January, 1974 at Nasik stored for sale and also sold vegetable Biryani containing tartrazine and carmosine coal tar dyes which are prohibited under Rule 29 of the Rules and thereby committed and offence punishable under section 7(i) read with section 16(i) of the Prevention of Food Adulteration Act and within my cognizance. 4. The accused pleaded guilty to the charge and stated that he had submitted a written statement. He had no idea of Rule 29 of the Rules and he also gave assurance that he will never use the colour in food articles in contravention of the Act and after saying that he is the only earning member of the family he prayed for mercy. 5. The learned Magistrate accepted that plea and convicted the accused for an offence under section 7(i) read with section 16(ii) of the Prevention of Food Adulteration Act and sentenced him to pay a fine of Rs. 150/-. The reason given by the learned Magistrate for taking a lenient view are as under: "The accused has pleaded guilty to the charge and has prayed for mercy on the ground that the colours used in Biryani are permitted colours and not harmful or injurious to the health. He was not aware of Rule 29 and used colour innocently and he would take care not to use the colours in any food articles except mentioned in Rule 29. He was not aware of Rule 29 and used colour innocently and he would take care not to use the colours in any food articles except mentioned in Rule 29. I find that there is contravention of Rule 29 only any proviso of section 16 comes into operation. The colours used are permitted colours and not injurious to human health. Taking this aspect into consideration and the fact that the accused has used the colour innocently, I find that the punishment of fine only would meet the ends of justice. 6. It is in that view of the matter that the learned Magistrate awarded a lenient sentence. 7. The State being aggrieved by that unduly lenient sentence has preferred this appeal for enhancement. 8. Mr. Deshmukh, learned Public Prosecutor has assailed the reasoning of the learned Magistrate to the effect that it being a contravention of Rule 29 only the proviso to section 16 comes into operation. He also submits that even conceding without admitting that the case were covered by the proviso to section 16, there are hardly any adequate and special reasons for awarding a sentence less than the minimum. He submits that it is a case of adulteration under section 2(ix)(j) of the Act and, therefore, the proviso to section 16 of the Act is not at all attracted. 9. Mr. Mengde, learned Advocate for the accused had to concede as he must that the offence is not covered by any of the proviso to section 16. He, however, submitted that after all it is a technical offence inasmuch as the accused added colour only to make the Biryani more attractive and he would learned the lesson of his life if he is given the benefit of Probation of Offenders Act. This submission was met by Mr. Deshmukh by relying on the judgment of the Supreme Court in (Pyarali K. Tejani v. Mahadeo Ramchandra Dange)1, A.I.R. 1974 S.C. 228 where the Supreme Court has taken a view that although the Probation of Offenders Act, 1958 is pervasive enough technically to take with in its wings the offence under the Prevention of Food Adulteration Act, the state of things in India is such that the Supreme Court could not accede to the invitation to let off the accused on probation in offences under the Food Adulteration Act. Having regard to that guidelines laid down by the Supreme Court I cannot accede to the request of Mr. Mengade to give to the accused the benefit of Probation of Offenders Act. 10. Mr. Mengade then relied upon section 360 of the Code of Criminal Procedure, 1973. For the very reasons advanced by the Supreme Court in Tejanis case, I am unable to acced to that request. 11. Section (ix)(j) of the Act provides that an article of food shall be deemed to be misbranded if it contains any artificial flavouring, artificial colouring or chemical preservating without a declaratory lable stating that fact, or in contravention of the requirements of the Act or Rules made thereunder. 12. Rule 29 lays down that the use of permitted coal tar dyes is prohibited in or upon any food other than those mentioned therein. 13. Undoubtedly in the instant case as held by the Public Analyst tartrazine and carmosine which are prohibited colours were detected. It would therefore, appears that it was an adulteration under section 2(ix)(j) of the Act. That being so, the proviso to section 16 is not attracted. Therefore, the Court has no choice in the matter of awarding the sentence but to award a minimum. 14. The appeal is, therefore, allowed. The conviction of the accused is maintained but the sentence is enhanced to R.I. for six months and fine of Rs. 1000/- in default of which the accused shall suffer R.I. for one month. -----