JUDGMENT : M.K. Shah, J. This revision application is directed against the order passed by the learned Judicial Magistrate, First Class, Jhagadia, District Broach so far as it relates to sentence. 2. The accused was convicted for the offence under Section 16(1)(a) (i) of the Prevention of Food Adulteration Act ('the Act'), and he was sentenced to S.I. till the rising of the court and to pay fine of Rs. 300/-, in default, S.I. for one month. 3. The facts shortly stated are as follows : The complainant-food inspector (present respondent No. 2) visited the shop of the accused, that is present respondent No. 1 on 14-6-1977, situated at village Netrang. taluka Jhagadia, District Broach and purchased from him turmeric powder in the presence of pancha and after completing the formalities of dividing the sample etc. the same was sent to the public analyst, Baroda for analysis, as per whose opinion, the same was found adulterated as it did not conform to the prescribed standard. After obtaining requisite permission of the District Health Officer, Broach, the complainant lodged his complaint and the accused was then prosecuted for the said offence. The accused pleaded not guilty and the prosecution then led evidence of the complainant-food inspector, ex. 9 and panch witness Thakorbhai. The prosecution, thereafter closed its evidence and the accused was examined under section 313 of the Criminal Procedure Code, (`the Code') and the accused then, on the very day, that is 18-7-1978, gave his purshis admitting his guilt and prayed that as he was a poor man and this was his first offence, appropriate orders may be passed against him after showing mercy. The learned Magistrate, thereupon passed the impugned order of conviction and sentence. Hence, the present revision so far as it relates to the order of sentence. 4. Mr. G.T. Nanavati, the learned Public Prosecutor for the State submits that in the instant case, the learned Magistrate was clearly in error in passing a nominal sentence of imprisonment till the rising of the court and a fine of Rs. 300/- because the minimum punishment prescribed under section 16(l)(a)(i), read with proviso) thereto of the Act is substantive sentence of months and a fine of not less than Rs. 500/-. The section provides a sentence of not less than six months which may extend to three years and which may extend to five hundred rupees. 300/- because the minimum punishment prescribed under section 16(l)(a)(i), read with proviso) thereto of the Act is substantive sentence of months and a fine of not less than Rs. 500/-. The section provides a sentence of not less than six months which may extend to three years and which may extend to five hundred rupees. But by proviso (i), it is provided that if the offence under sub-clause (i) of clause (a) and is with respect to an article of food being primary food, which is adulterated due to Kumar agency or is with respect to an article of food which is misbranded within the meaning of sub clause (k) of clause (ix) of section 2, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than five hundred rupees. Mr. Nanavati, therefore, submits that the learned Magistrate had no option in the matter but to award at least the minimum sentence of three months' imprisonment and a fine of Rs. 500/- and that too for adequate and special reasons to be mentioned in the judgment and the order of sentence, therefore, requires to be revised by this court by enhancing the same to a sentence of more than 3 months imprisonment with fine of more than Rs. 500/- as this court may find just under the circumstances of the case. 5. Mr. J.C. Patel, the learned Advocate appearing for the accused, on the other hand, contends that in the instant case, as the learned Magistrate has recorded the plea of guilty of the accused at a later stage after the evidence was recorded and has based his order of conviction and sentence on the said plea, the proceedings are vitiated and the order of conviction and sentence should be set aside and a retrial be ordered. 6. Mr. Patel has heavily leaned in support of his contention on State of Gujarat v. Babusing Fatesing, 18 GLR 365. 6. Mr. Patel has heavily leaned in support of his contention on State of Gujarat v. Babusing Fatesing, 18 GLR 365. wherein it is observed that the only stage when the accused can plead guilty is the stage when the accused is called upon to plead guilty and at this stage, the accused had in that casein very clear terms stated that he did not plead guilty, and the only course then open to the learned Magistrate was to take decision on merits and he should not have acted on the plea of guilty recorded later. 7. The ratio laid down in this decision docs not apply to the facts of the present case. There, the learned Magistrate did not appreciate in any way, the evidence of the solitary witness examined in the case but he relied on the belated plea of the accused and accordingly passed a short order of 1 conviction and sentence, as observed at page 366 of the report It should be noted that as shown in the Roznama, after the cross-examination of the said witness, the case was adjourned for recording further evidence and on the adjourned date, no further evidence was recorded, but the accused gave an application which was numbered as M-9 which the learned Magistrate called Purshis of the accused to plead guilty. As observed by the court in the said report : "It is to be noted that some other advocate had appeared for the accused that day and he had advised him to plead guilty and the learned Magistrate readily accepted the said plea and proceeded to convict the accused of all the offences with which he had come to be charged Acting on that plea the learned Magistrate however, gave the benefit of the salutary provisions of the Probation of Offenders Act and bound him over for the period of two years and directed him to furnish his personal bond and a surety bond both in the sum of Rs. 750/-." It was, therefore, observed that it was obvious that the learned Magistrate had acted on the belated plea of guilty by the accused. 750/-." It was, therefore, observed that it was obvious that the learned Magistrate had acted on the belated plea of guilty by the accused. It was further observed, "the fact that the plea was followed by an order of release on probation smacks of a sort of a promise that if the accused accepted the charge, he would be leniently dealt with but this sort of practice deserves to be discouraged very clearly and emphatically." 8. But such is not case so far as the present proceedings are concerned. In the instant case, what happened was that after the accused pleaded not guilty, all the prosecution evidence viz. of the complainant and of the panch witness was recorded and the prosecution gave a purshis for closing its evidence. The accused was then examined under Section 313 of the Code on 18-7-1978. The prosecution evidence, as was against the accused, was put the accused by the learned Magistrate in order to give him an opportunity to explain to which his answer was `No, sir'. To the last question, "Do you wish to say anything", his answer was "No, sir", am a poor person and pray for mercy". It seems, either at that time or immediately thereafter, filed the said purshis admitting his guilt and praying for mercy on the ground that this was his first offence and that he was a poor person. The learned Magistrate thereafter delivered his judgment. He set out the facts of the case raised points, answered them and then gave reasons wherein he referred to the evidence of the complainant which was supported by the report of the public analyst, ex. 13, revealing that the turmeric powder was adulterated one and it was not according to the required stand. He also referred to the other documents produced by the complainant, viz. purchase of powder ex. 10,cash memo ex. II, forwarding letter ex 12 and the letter of permission from the District Health officer and the order giving permission at ex. 15. He then observed that there was no reason to disbelieve the evidence of the complainant and the documents produced on record, though the panch witness had turned hostile and he also observed that this did not mean that the evidence of the complainant should not be relied upon as there was no reason for the complainant to tell lies against the accused. Thereafter he referred to the accused's purshis ex. 30 and his statement recorded under Section 313. He then observed "Hence, I feel that the prosecution case stands proved by the evidence of the complainant coupled with the admission of the guilt by the accused". From these observations, it cannot be said that the order of conviction is based on the acceptance of the plea of the accused, As a matter of fact, there is no plea of the accused recorded, as such. The accused was given an opportunity to explain the circumstances against him by his examination under section 313 of the Code. He did not avail of this opportunity and asked for mercy and by admitted his guilt and prayed that he should be leniently dealt with in view of the fact that he was a poor person and this was his first offence. This is, therefore, not a case in which the order of conviction has been passed solely on the basis of the plea of the guilt of the accused. This is also not a case in which the learned Magistrate has not considered the evidence on record led by the prosecution. This is also not a case in which when the prosecution is half way with its evidence the accused has come out with an application or a purshis setting out his plea of guilty and praying for mercy and the learned Magistrate on accepting that plea of guilty passing an order of conviction and sentence. 30-1-1919. The contention, therefore, that the trial is vitiated because the order of conviction and sentence has been based on a belated acceptance of plea of guilty of the accused is not tenable. 9. It is true, the learned Magistrate has referred to the admission of the guilt of the accused by his purshis ex. 30, as also to his statement recorded under section 313 of the Code, wherein, inspite of an opportunity being given, he did not explain any of the circumstances against him. But it cannot therefore be said that the order of conviction and sentence is based on the acceptance of the plea of the accused. It is primarily and substantially based on the conclusion arrived at by the learned magistrate on assessment of the evidence and he has additionally referred to the admission of the guilt by the accused As a matter of fact, ex. It is primarily and substantially based on the conclusion arrived at by the learned magistrate on assessment of the evidence and he has additionally referred to the admission of the guilt by the accused As a matter of fact, ex. 30 appears to be in the nature of an Implication for lesser sentence submitted by the accused on feeling that the prosecution had proved its case, though the learned Magistrate had not recorded a finding of guilt against him at that stage and not a purshis setting out the plea of guilty of the accused, which stage had already passed much earlier. The order of conviction recorded by the learned Magistrate is therefore perfectly valid. 10. Then remains the question as to whether the sentence of S.I. till the rising of the court with fine of Rs. 300/-, in default, S.I. for one month is inadequate so as to need enhancement. The section itself provides imprisonment for a term of not less than six months, which may extend to 3 years and fine of not less than Rs. 1000/-. But by proviso (i) it is inter alia provided that if the offence is under sub clause (i) of clause (a) and is with respect to an article of food, being primary food which is adulterated due to human agency, then the court may, for any adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than Rs. 500/-. The minimum, therefore in any case, is a 3 months as substantive sentence and fine of Rs. 500/-, and the learned Magistrate was, therefore, patently in error in giving a lesser sentence than the minimum. He had no competence to award a lesser sentence. Even for awarding the minimum sentence prescribed, he has to assign adequate and special reasons in his judgment. In the instant case, at the most, looking to the facts and circumstances of the case including the nature and gravity of the offence, pica of the accused inter alia, showing that this was his first offence and other attendant circumstances, ends of justice will be met if the minimum prescribed under the section is awarded to the accused. 11. In the instant case, at the most, looking to the facts and circumstances of the case including the nature and gravity of the offence, pica of the accused inter alia, showing that this was his first offence and other attendant circumstances, ends of justice will be met if the minimum prescribed under the section is awarded to the accused. 11. The revision application therefore succeeds and rule is made absolute by enhancing the sentence from simple imprisonment till the rising of the court to S.I. for three months and from fine of Rs. 300/-, in default, to fine of Rs. 500/-, in default, on month's S.I. Revision allowed.