JUDGMENT - N.B. NAIK, J.:---This is an appeal by the State for enhancement of the sentence awarded to the respondent-accused by the Judicial Magistrate, First Class, Ulhasnagar, on 3rd October, 1975. 2. The facts giving rise to this appeal are briefly these : On 16th June, 1973, Mr. Barde, the Food Inspector went to the grocery shop of the accused at Ulhasnagar. He noticed that Lakh dal was kept for sale in the shop. He asked for sample of Muttar dal and he purchased 750 grams of Muttar dal from the accused for analysis. The sample was sent to the Public Analyst, Poona. As appears from the report (Ex. 7) of the Public Analyst found that the sample was not at all Muttar dal and that on the other hand it was cent percent Lakh dal and that the hydrochloric acid test for Lakh dal was positive. He, therefore, opined that the sample was misbranded under section 2(ix)(c) and adulterated under section 2(i)(h) of the Prevention of Food Adulteration Act, 1954 read with Rule 44-A of the Prevention of Food Adulteration Rules, 1955. It is on these facts that the accused was prosecuted. 3. Mr. Barde, the Food Inspector was examined before charge on February 5, 1975. The case was then adjourned for cross before charge. As the roznama shows it was being adjourned for that purpose from time to time. Ultimately on October 3, 1975, the record shows that the charge was explained to the accused and he was asked whether he wanted to plead guilty to the charge and the accused replied "yes, I am filing my written statement." On that very day the accused filed his written statement (Ex. 17) stating inter alia, that he is a petty shop keeper and he purchases articles locality for sale and that the Dal was kept for animal fodder and there was board over the same indicating that it was for animal use and that it was not meant for human consumption. This written statement is concluded by saying that the accused may be shown mercy and that it was his first offence. 4. The learned Magistrate proceeded with his judgment wherein he observed that as there is prima facie evidence the charge was framed and the accused pleaded guilty of the charge and that plea of his being voluntary he has accepted the same and convicted the accused. 4. The learned Magistrate proceeded with his judgment wherein he observed that as there is prima facie evidence the charge was framed and the accused pleaded guilty of the charge and that plea of his being voluntary he has accepted the same and convicted the accused. He further referred to the written statement (Ex. 17) in para 4 of his judgment and observed that the prosecution has no objection for lenient view. He, therefore, convicted the accused under section 16(1) read with section 7(i) of the Prevention of Food Adulteration Act and sentenced the accused to S.I. till the rising of the Court and to pay a fine of Rs. 500/-. 5. The State has filed this appeal for enhancement of the sentence. 6. Mr. Parkar, learned Public Prosecutor says that on the facts of this case none of the provisions to section 16 being attracted, the Magistrate has no discretion in the matter and he ought to have awarded the minimum sentence. Mr. Gurusahani, learned Advocate for the accused, however, submitted that because it was decided on 3rd October, 1975 that the accused would be treated leniently, if he pleaded guilty to the charge. Nearly 100 accused pleaded guilty on the assurance that they would be treated leniently and he does not know why amongst those the State has chosen to prefer an appeal for enhancement of the sentence against the accused in this appeal and the accused in Criminal Appeal No. 43 of 1976 only. 7. A perusal of the record shows, disquicting state of affairs. As I pointed out after the evidence in chief of Food Inspector, Barde was over on February 5, 1975, the case was adjourned for cross before charge and it was being adjourned for that very purpose from day to day till 3rd October, 1975. The roznama shows that no charge in fact was framed on that day although there is mention about a charge being framed in para 3 of the judgment. There is nothing on record to show that the accused has been given up his right to cross-examine before charge although such an inference can readily arise from his having purported to plead guilty to the charge and from the written statement filed by him. There is nothing on record to show that the accused has been given up his right to cross-examine before charge although such an inference can readily arise from his having purported to plead guilty to the charge and from the written statement filed by him. But the fact remains that in fact no charge has been framed and even the plea of the accused which is recorded would appear to be hardly a plea of accused pleading guilty to the charge. It is by no means an unequivocal plea and the written statement filed by him does not say that the accused has pleaded guilty to the charge. The record, therefore, shows that in fact no charge was framed and the prosecutor also had no objection to a lenient view being taken in the matter of sentence. 8. Now the question as to whether a lenient view could be taken would depend upon the nature of the charge. If the charge is for offences which are covered by any of the two provisions to section 16, then only the Court under given circumstances has a discretion to Award a sentence less then the minimum. But if the charge is for an offence which is not covered by any of the two provisos to section 16, then the Court has no discretion in the matter of sentence but to award the minimum which is prescribed by the section. It is for that purpose that the precise nature of the charge becomes material. But in the instant case the charge is not framed. In the absence of specific charge it is not possible for me to hold what the precise nature of the charge was. I cannot assume that the charge which is not to be found in the record was for an offence which was covered by either of the two provisos to section 16 nor can I assume that it was for an offence which was not covered by the provisos to section 16. Unless I assume that the charge was for an offence which was not covered by the proviso to section 16, there could be no enhancement of the sentence having regard to the circumstances of the case. In this state of the record for the ends of justice as submitted by both Mr. Parkar and Mr. Unless I assume that the charge was for an offence which was not covered by the proviso to section 16, there could be no enhancement of the sentence having regard to the circumstances of the case. In this state of the record for the ends of justice as submitted by both Mr. Parkar and Mr. Gurusahani, I think the best course is to set aside the conviction and sentence and send the case back to the trial Court to proceed from the stage where the illegality occurred viz., the prosecution shall give the defence an opportunity to examine the Food Inspector before charge. It shall be also open to the prosecution to lead any other evidence if it so chooses to lead before charge. It is only after a charge is framed that thereafter the accused may be called upon to plead to the charge. Whatever has been done on 3rd October, 1975 should be ignored. I order accordingly. The fine if paid by the accused be refunded to him and the trial should proceed afresh from the stage it had reached on 5th February, 1975. -----