P. K. JAIN, J. ( 1 ) HEARD Sri K. K. Mishra, learned counsel for the appellant and the learned A. G. A. ( 2 ) SINCE in the above-mentioned two criminal appeals common question of facts and law are involved, hence they are disposed by a common judgment. ( 3 ) APPELLANT Bishambhar Dayal has appealed against the judgment and order dated 31-3-1980 passed by the then 3rd Addl. Sessions Judge, Jalaun at Orai in S. T. No. 245 of 1977 convicting the appellant under Ss. 7 (i), 16 (1) (a) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentencing him to undergo RI for 5 years and pay a fine of Rs. 5,000. 00 and in default of payment of fine to further undergo RI of one year. In Criminal Appeal No. 723 of 1980 appellant Bishambhar Dayal has appealed against the judgment and order dated 31-3-1980 passed by the then 3rd Addl. Sessions Judge, Jalaun at Orai in S. T. No. 240 of 1970 convicting the appellant under Ss. 7 (i), 16 (i) (a) of the Act and sentencing him to undergo R. I. for 5 years and pay a fine of Rs. 5,000. 00 and in default of payment of fine to further undergo RI of one year. ( 4 ) CHIEF Food Inspector B. L. Dohare visited the shop of the appellant situated in Bharat Chowk Bazar Orai district Jalaun on 29-11-76 at about 12-30 p. m. He found cumin (Jeera) kept in a gunny bag and gram dal stored for sale in the shop. He purchased 450 grams cumin and 750 grams gram dal after giving notice to the appellant informing him that the cumin and gram dal were being purchased for analysis. He completed other formalities under the Act and Rules framed thereunder. The purchased cumin and gram dal were divided in three parts in each case and were separately sealed. One sample of gram dal and one sample of cumon were sent to the Public Analyst who in his report Ex. Ka-4 each case reported that the cumin sample contained organic extraneous matter which exceeded the maximum permissible limit of 5%. Organic extraneous matter was found to be 7-68/ -. In gram dal rodent excreta was found 7 in number and insect damaged dal was found to be 93. 3%. Ka-4 each case reported that the cumin sample contained organic extraneous matter which exceeded the maximum permissible limit of 5%. Organic extraneous matter was found to be 7-68/ -. In gram dal rodent excreta was found 7 in number and insect damaged dal was found to be 93. 3%. Uric acid was found to be 75. 3 ml. per hundred gram. Rodent excreta was above the prescribed standard of maximum per 5kg. ( 5 ) ON receipt of report necessary sanction in each case from the C. M. O. was obtained and thereafter complaints were filed separately against the appellant. After filing of the complaint the local Health authority had sent notices in each case along with the report of Public Analyst to the appellant under S. 13 (2) of the Act. On the basis of complaint in case of adulterated cumin S. T. No. 245 of 1977 was registered and on the basis of complaint in respect of adulterated gram dal S. T. No. 240 of 1977 was registered. ( 6 ) CHARGES under Ss. 7 (i) (3) (5) read with S. 16 of the Prevention of Food Adulteration Act were framed against the appellant who denied the charges in each case and claimed to be tried. In statements under S. 313, Cr. P. C. the appellant denied the prosecution case and stated that he was falsely implicated in the case. ( 7 ) THE prosecution in support of its case examined P. W. 1 Sri B. L. Dohare, Chief Food Inspector, P. W. 2 Sri Subhash Chandra Debye and P. W. 3 Sri Harikrishna in each session trial. The appellant examined himself as D. W. 1 in defence. ( 8 ) IN his deposition the witness stated that Sri B. L. Dohare had purchased goods amounting to Rs. 175. 80 from his shop. Since he had not paid the said amount an entry to this effect was made in the account books and the said entry is Ex. Kha-1. When he demanded the said amount from him he became annoyed and falsely implicated him in the case. The trial Court disbelievewd the defence and accordingly convicted and sentenced the appellant as stated above in both the session trials. ( 9 ) IN these appeals the judgments and orders of the trial Court are challenged only on the ground of question of sentence. The trial Court disbelievewd the defence and accordingly convicted and sentenced the appellant as stated above in both the session trials. ( 9 ) IN these appeals the judgments and orders of the trial Court are challenged only on the ground of question of sentence. It is contended that the appellant is aged about 61 years and is not keeping good health. He is suffering from Hyper-tension and suspected of blockage in two of his arteries. He has been advised for complete rest. It is next contended that the offence is said to have been committed in the year 1976 and almost 21 years have elapsed since the offence was committed and the appeals are pending for the last 17 years. It is also contended that in the circumstances instead of sending the appellant to jail heavy fine may be imposed and in any case the sentence awarded by the trial Court is too severe. Learned A. G. A. contends that in view of the amended provisions of S. 16 of the Act minimum sentence of imprisonment has to be awarded and also sentence of fine. In support of his contention the learned counsel for the appellant has cited two decisions of the Supreme Court reported in AIR 1980 SC 126 Ramdas Bhikaji Chaudhari v. Sadanand and AIR 1980 SC 360 Municipal Corporation of Delhi v. Tek Chand Bhatia. The appellant has also filed an affidavit in criminal appeal No. 723 of 1980 of one Jitendra Kumar wherein it has been stated that the age of the appellant is 61 years. He is suffering from hyper-tension and has suspected blockage in his two arteries and is advised complete rest. Along with the affidavit photo copies of prescription slip SA-1, pathological reports SA-II and SA-III and medical certificate dated 21-5-1997 SA-IV to the affidavit have been filed. Although the copy of the affidavit was served on 17-9-97 on A. G. A. but no counter affidavit has been filed on behalf of the State. ( 10 ) SO far as the age of the appellant is concerned in the affidavit it is stated to be 61 years. In his deposition as D. W. 1 on 13-3-1980 the appellant has stated his age to be 35 years. The affidavit has been filed by son-in-law of the appellant who cannot be supposed to know the actual age of the appellant. In his deposition as D. W. 1 on 13-3-1980 the appellant has stated his age to be 35 years. The affidavit has been filed by son-in-law of the appellant who cannot be supposed to know the actual age of the appellant. Since in the statement as D. W. 1 on 13-3-80 the appellant has stated his age to be 35 years, now he must not be more than 52 years. As regards the ailment from which the Appellant is suffering, SA-1 to the affidavit simply states hyper tension. It is, however, not clear as to when this prescription was prepared and who had examined the appellant. Pathological reports SA-II and SA-III do not point out towards any ailment. SA-4 to the affidavit is the copy of the medical certificate dated 21-5-97 which states that the appellant is suffering from hyper-tension and he has been advised to consult higher level expert and was advised rest for one month. The documents annexed with the affidavit do not disclose any serious ailment from which the appellant is suffering. Hyper-tension is a general ailment. There is no material showing that some medical expert dealing with Cardiac desease was consulted after advise given in SA-4. ( 11 ) AS regards the law cited by the learned counsel for the appellant, both the cases relied upon relate to the incident prior to 1/04/1976 in the case of Ramdas Bhikaji Chaudhari v. Sadanand, ( AIR 1980 SC 126 ), the accused was convicted by the trial Court. The Sessions Judge modified the sentence. The High Court relaying upon the decision of Rajal Das Guru Namal Pamanani v. State of Maharashtra, (1975) 2 SCR 886 : ( AIR 1975 SC 189 ) acquitted the accused persons. In ALP filed by the complainant the Honble Supreme Court reversed the judgment of acquittal passed by the High Court observing that the decision in Rajal Das Guru Namal Pamanani v. State of Maharashtra is reconsidered by a larger Bench of 5 Judges who overruled the said decision in the case of State of Kerala v. Alasserry Mohammed, (1976) 2 SCR 820 : ( AIR 1978 SC 933 ). The Honble Supreme Court while considering the question of sentence has observed as follows (para 6 of AIR 1980 SC) :-"the next question that remains for determination is as to what is the sentence which should be imposed on the respondents if their acquittal is reversed. In the instant case we find that the respondents were prosecuted in the year 1971 and ultimately acquitted by the High Court in 1976. After acquittal remained in force for three years the matter has come up before us. In these circumstances, therefore, the ends of justice do not require that the respondents should be sent back to jail. Mr. Ganpule pointed out that so far as respondent No. 1 Sadanand was concerned he had previous conviction to his credit and so he deserves a jail sentence. As the previous conviction was 7 years old and today it will be about 15 years old, we do not think that we should take those facts into consideration while imposing the sentence on the respondent. For the reasons, therefore, we would allow this appeal and set aside the order of the High Court and convict the respondents under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act and sentence the respondents to fine of Rs. 2,000 each, in default 6 months R. I. " ( 12 ) IN the second case Municipal Corporation of Delhi v. Tek Chand Bhatia ( AIR 1980 SC 360 ) the facts were that the offence was committed some time in the year 1968 and the matter was finally disposed of by the Supreme Court in the year 1979. The Supreme Court while considering the question of sentence has observed that "adulteration of an article of food is a serious anti-social offence which must be visited with exemplary punishment, it will be rather harsh to pass a sentence of imprisonment in the facts and circumstances of the case. Under S. 16 as in force at the material time the Court had the discretion for special and adequate reasons under proviso to sub-section (1) of S. 16 not to pass a sentence of imprisonment. In the instant case, the respondent is a man aged 75 years. The offence was committed more than 11 years ago. The order of acquittal was based on the decision of the Delhi High Court in Dhanrajs case. The samples were taken from sealed tins. In the instant case, the respondent is a man aged 75 years. The offence was committed more than 11 years ago. The order of acquittal was based on the decision of the Delhi High Court in Dhanrajs case. The samples were taken from sealed tins. These are all mitigating circumstances. We accordingly refrain from passing a substantive sentence of imprisonment and instead of sentence the respondent to the period already undergone and to pay a fine of Rs. 2,000. 00 or in default to undergo rigorous imprisonment for a period of three months. " ( 13 ) THUS in both the cases relied upon by the learned counsel for the appellant the offence was committed prior to amendment of Prevention of Food Adulteration Act in the year 1976. The amendments were in force from 1/04/1976. The offence in the present case was committed in November, 1976. Thus the law as stood prior to 1-4-76 gave discretion to the Court to impose sentence of imprisonment of less than six months or of fine less than one thousand rupees for adequate and special reasons to be mentioned in the judgment in cases covered by the proviso. The Honble Supreme Court also in the case of Municipal Corporation of Delhi ( AIR 1980 SC 360 ) (supra) has taken this legal position into consideration as it was observed that under S. 16 was in force at the material time, the Court had the discretion for special and adequate reasons under proviso to sub-sec. (1) of S. 16 not to pass a sentence of imprisonment. Under the amended provisions which came into force on 1-4-76 the discretion of the Court was limited to some extent since minimum punishment was provided under the proviso to sub-sec. (1) of S. 16 of the Act which reads as follows :-"provided that - (i) 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 or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of S. 2; or (ii) if the offence is under sub-cl. (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (a-A) of S. 23 or under clause (b) of sub-sec. (2) of S. 24,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 :provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (a-A) of S. 23 or under clause (b) of sub-section (2) of S. 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees. "thus in cases covered by the proviso the minimum sentence which can be awarded after convicting an accused under S. 16 (1-A) and (ii-A) is imprisonment which shall not be less than 3 months and which may extend to 2 years and fine which shall not be less than Rs. 500. 00. ( 14 ) SINCE the decision relied upon by the learned counsel for the appellant related to offences committed prior to Ist April, 1976 and the Court had discretion in the matter of awarding sentence and the same would not apply to the appellants case as in the instant case the offence was committed by the appellant after amendment of the proviso of S. 16 (i) of the Act which to some extent limited the discretion of the Court in the matter of award of sentence and provided minimum sentence to be awarded to the accused on his being convicted. ( 15 ) THE question of discretion of the Court in the matter of award of sentence after amendment in the prevention of Food Adulteration Act came up for consideration before Honble Supreme Court in the case of State of U. P. v. Hanif (1992) 3 SCC 100 : (1992 All LJ 1125 ). ( 15 ) THE question of discretion of the Court in the matter of award of sentence after amendment in the prevention of Food Adulteration Act came up for consideration before Honble Supreme Court in the case of State of U. P. v. Hanif (1992) 3 SCC 100 : (1992 All LJ 1125 ). That was a case in which the offence was committed on 3/12/1978 and it was argued before Honble Supreme Court that after long lapse of time a lenient view in the matter of award of sentence may be taken. The trial Court had sentenced the appellant to undergo 6 months RI and to pay a fine of Rs. 1000. 00. Appeal was dismissed and the trial Courts judgment and order was confirmed. On revision the High Court set aside the conviction and after the Special Leave was filed by the State of U. P. the Honble Supreme Court reversed the judgment of the High Court and while disposing of the question of leniency in the matter of award of sentence observed as follows (para 6 of All LJ) :-"it is next contended that the sale of adulterated milk was on 3/12/1978 and that the long lapse of time is a cause to take a lenient view in the matter. In view of the fact that after Amending Act 34 of 1976, the sentence imposed by the Courts below is minimum and, therefore, there is no scope warranting interference. "even where adequate and special reasons existed the Court was bound to impose the sentence of imprisonment which shall not be less than 3 months and fine which shall also not be less than Rs. 500. 00. Even if the circumstance that the appeals are being disposed of 21 years after the offence was committed, are treated to be adequate and special reasons under the proviso to S. 16 (i) (a) of the Act sentence of imprisonment not less than 3 months and fine not less than Rs. 500. 00 can be awarded by the Court. The question, however, arises whether the case of the appellant is covered by the proviso to S. 16 (i) of the Act. ( 16 ) SO far as the criminal appeal No. 722 of 1980 is concerned it has already been pointed out that sample of cumin contained 7. 68% organic extraneous matter which was above permissible limit of 5%. The question, however, arises whether the case of the appellant is covered by the proviso to S. 16 (i) of the Act. ( 16 ) SO far as the criminal appeal No. 722 of 1980 is concerned it has already been pointed out that sample of cumin contained 7. 68% organic extraneous matter which was above permissible limit of 5%. The article of food would be treated to be adulterated within the meaning of sub-clause (m) of clause (i-a) of S. 2 of the Act as there is no evidence or report that existence of such organic extraneous matter renders the article injurious to health. Hence the reduced minimum imprisonment of period of 3 months can be awarded if the offence is under clause (i) of sub-clause (a) and if the offence is with respect to article of food being primary food. There is no dispute that the sample taken was in respect of primary food as defined in 10 (xii-a) of the Act. Therefore, so far as the criminal appeal No. 722 of 1980 is concerned, considering that the appeal is being heard and disposed of after 21 years of commission of the crime which can be treated as special and adequate ground the sentence may be reduced to imprisonment for three months and fine of Rs. 2,000. 00. ( 17 ) THE trial Court awarded sentence of imprisonment of 5 years and fine of Rs. 5,000. 00 in Sessions Trial No. 245 of 1977 whereas the maximum sentence which could be awarded under S. 16 (i) (a) of the Act was three years and fine. The trial Court appears to have awarded sentence of imprisonment in view of the amended provisions of the Act by U. P. Act 47 of 1975 which, however, was not in force after the Central Act being Amending Act 34 of 1976 had come into force and therefore so far as Criminal Appeal No. 722 of 1980 is concerned the sentence of imprisonment awarded by the trial Court was not in accordance with law. ( 18 ) AS regards criminal appeal No. 723 of 1980 the report of the public Analyst shows that the rodent excreeta was 7 in number in 250 grams dal whereas the prescribed minimum limit is not more than 5 per kg. Besides this, 93. 3% of the sample contained eaten matter whereas only remaining 6. 7% was normal. ( 18 ) AS regards criminal appeal No. 723 of 1980 the report of the public Analyst shows that the rodent excreeta was 7 in number in 250 grams dal whereas the prescribed minimum limit is not more than 5 per kg. Besides this, 93. 3% of the sample contained eaten matter whereas only remaining 6. 7% was normal. Uric acid according to the report may be maximum 20 ml. gram per 100 grams gram dal whereas in the sample in question it was found 75. 3 ml. gram per 100 grams. Such type of adulteration shall be punishable under S. 16 (1-A) of the Act. Since such article shall be treated to be adulterated under S. 2 (ia) (f) of the Act which is punishable under S. 16 (1-A) of the Act. The punishment provided for offence punishable under S. 16 (1-A) of the Act is imprisonment for a term not less than 1 year which may extend to 6 years and fine which shall not be less than Rs. 2,000. 00. Therefore, the minimum sentence which can be awarded in criminal appeal No. 723 of 1980 is RI for one year and fine of Rs. 2000. 00. ( 19 ) IN view of the discussions made above both the appeals are partly allowed. Conviction of the appellant under S. 7/16 of the prevention of Food Adulteration Act is maintained. Sentences awarded by the trial Court are modified. In Criminal Appeal No. 722 of 1980 the appellant is sentenced to RI for 3 months and fine of Rs. 2000. 00 and in default of payment of fine he shall further undergo RI for one month. In criminal appeal No. 723 of 1980 the sentence of imprisonment is reduced to one years RI and fine of Rs. 2,000. 00 and in default of payment of fine he shall further undergo rigorous imprisonment for 1 month. The appellant shall surrender forthwith to serve out the sentence awarded herein above. Order accordingly. .