B. C. PATEL, J. ( 1 ) FOOD Inspector, Navsari has preferred this appeal against the order of acquittal recorded by Chief Judicial Magistrate, Navsari in Criminal Case No. 6361 of 1987 acquitting the accused on 4-12-1990 for an offence punishable under Sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act ). ( 2 ) FACTS concisely stated, as it emerges from the record, are as under :- ( 3 ) FOOD Inspector, the appellant herein, on 23-12-1986 at about 1530 hours, collected a sample of 400 gms. of Coconut Oil in the presence of a panch for the purpose of analysis. The vendor was explained about the same as per the provisions contained in the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules ). The appellant collected sample in accordance with law, and thereafter divided the same into three equal parts in dry and clean bottles which were thereafter sealed and packed in accordance with the provisions contained in the Act and Rules. One sample bottle was forwarded to the Public Analyst for analysis on 24-12-1986 which was received by the Public Analyst on 29-12-1986. Two samples were forwarded to the Local Health Authority in accordance with the provisions of the Act and Rules. ( 4 ) THE Public Analyst, by his report, vide Exh. 24, dated 16-1-1997 opined that the sample of Coconut Oil did not conform to the standards and the provisions laid down under the Prevention of Food Adulteration Rules, 1955. On receipt of the report, the Food Inspector, after consent being accorded on 4-3-1987, filed a complaint on 21-8-1987. The Food Inspector forwarded a copy of the report to the accused as contemplated under Sec. 13 (2) of the Act. The trial Court acquitted respondent No. 1-accused on the following grounds : (I) Coconut Oil is usually preferred in the State of Gujarat as hair oil, and therefore, the provisions contained in the Act and the Rules are not applicable insofar as coconut oil is concerned. (II) The sample bottle was forwarded on 24-12-1986 to the office of the Public analyst for analysis and on the same day by a separate registered envelope, containing a memorandum having the specimen impression of the seal was forwarded. However, in Exh. 21, there is a reference to the effect that Form no. (II) The sample bottle was forwarded on 24-12-1986 to the office of the Public analyst for analysis and on the same day by a separate registered envelope, containing a memorandum having the specimen impression of the seal was forwarded. However, in Exh. 21, there is a reference to the effect that Form no. 7 memorandum along with the specimen impression of the seal was received on 24-12-1986. Hence, in the opinion of the trial Court, it could not have reached on the same day, and, therefore, the evidence cannot be accepted. ( 5 ) MR. Vyas, learned Counsel for the appellant has taken me through the entire evidence. He drew my attention to paragraph 14 of the judgment, to point out that the trial Court has scrutinised the evidence minutely, and the trial Court has come to the conclusion that there is no breach of rules while collecting the sample. The court framed issue No. 1 as under : (1 ). Is it proved by the prosecution that the complainant collected the sample of Coconut Oil in accordance with the provisions contained in the Prevention of Food adulteration Act? the trial Court has answered the above issue in positive. ( 6 ) AFTER going through the evidence, I am of the opinion that the trial Court has taken care in scrutinising the evidence and has arrived at a conclusion that after following the procedure, sample was collected, and, therefore, no breach of rules or Act was committed while collecting the sample. ( 7 ) IN view of the above, even if a panch has turned hostile, if the Court has accepted the evidence of Food Inspector after scrutinising the evidence minutely and has arrived at a conclusion that the procedure laid down has been followed, the evidence cannot be discarded. ( 8 ) SO far as Coconut Oil is concerned, the trial Court has committed serious error in arriving at a conclusion that in the State of Gujarat, Coconut Oil is being used as hair oil, and, therefore, the provisions contained in the Act and the Rules are not applicable. ( 9 ) THE trial Court ought to have considered sub-clause (v) of Section 2 of the Act, which reads as under :"2 (v ). "food" means any article used as food or drink for human consumption other than drugs and water and includes - (a ). ( 9 ) THE trial Court ought to have considered sub-clause (v) of Section 2 of the Act, which reads as under :"2 (v ). "food" means any article used as food or drink for human consumption other than drugs and water and includes - (a ). any article which ordinarily enters into, or is used in the composition or preparation of human food, (b ). any flavouring matter or condiments, and (c ). any other article which the Central Government may, having regard to its use, nature, substance or quality declare by notification in the Official Gazette, as food for the purpose of this Act. " ( 10 ) THE trial Court has seriously erred in not considering the definition of "sale" as found in clause (xiii) of Sec. 2 of the Act. The said provision reads as under : 2 (xiii ). sale with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article; ( 11 ) APPENDIX "a" provides definitions and standards of quality of various articles of food, which is framed under Rule 5 of the Rules. Rule 5 reads as under : 5. Standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix. ( 12 ) STANDARD of quality of various articles are specified in Appendix b. So far as Coconut Oil is concerned, Article A. 17. 01 defines the standard. An article of food, as in the instant case Coconut Oil, will be said to be adulterated if the quality and purity of the article falls below the prescribed standard or its constituents are present in the quantity which are in excess / deficit of the prescribed limit. Once the Public Analyst opines that the quality of the sample, i. e. Coconut Oil, does not meet with the standard laid down under the rules, the article is adulterated. Once the Public Analyst opines that the quality of the sample, i. e. Coconut Oil, does not meet with the standard laid down under the rules, the article is adulterated. ( 13 ) A Division Bench of this Court in the case of U. H. Shah v. Abdul Habib reported in 1976 GLR 990 had an occasion to consider the question that as Coconut oil is not generally used for human consumption in the State of Gujarat, it is an article of food or not? In paragraph 11 of the judgment, the Division Bench considered the case of P. K. Tejani v. M. R. Dange reported in AIR 1974 SC 228 wherein the Apex Court held that :"the Act defines food very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is common place knowledge that the word food is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. As supari eaten with relish by men for taste and nourishment, it is food within the meaning of Sec. 2 (v) of the Act. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. " ( 14 ) IN paragraph 12 of the said judgment, the Division Bench considered the decision of the Apex Court in the case of Mangaldas v. State of Maharashtra reported in AIR 1966 SC 128 wherein the Court held as under :"the Act gives a special definition of sale in Sec. 2 (xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion. " ( 15 ) IN paragraph 13 of the judgment, the Division Bench also considered the decision of the Apex Court in the case of Food Inspector, Calicut v. C. Gopalan reported in AIR 1971 SC 1725 wherein the Court held as under :"a reference to the definition of sale will also show that a sale of any article of food for analysis comes within that definition. That the sample of food purchased by the Food Inspector in this case satisfies the definition of sale in clause 14 is also beyond controversy. " ( 16 ) AFTER considering the above judgments, the Division Bench negatived the contention raised by the learned Counsel for the defence and held (paragraph 15) that"so far as the case before us is concerned, the position is quite different. Coconut oil is, on the evidence in the case and in view of the decisions referred to above, proved to be food, as defined under the Act, even though the same is not generally used for human consumption in the State of Gujarat. Therefore, it cannot be said that the prosecution has failed to prove that what was sold by the accused to the complainant was food, as defined under the Act. We are unable to agree with Mr. Thakore that the representation made by the accused to the Food Inspector, at the time of selling the sample assumes relevance in all cases. " ( 17 ) IN the aforesaid decision, the Division Bench also considered the case of shah Ashu Jaiwant v. State of Maharashtra, reported in AIR 1975 SC 2178 where the seller made a representation to the Food Inspector that the sample sold to him was meant only for the purpose of pooja and for offering to the fire, but upon insisting the sample was sold to him with a bill wherein also there was an endorsement that the article sold was only meant for pooja. After appreciating the facts of the aforesaid case, in paragraph 25, the Apex Court held that :"there he had made an endorsement on the receipt of the amount received by him that he had sold black til seeds, which were meant only for pooja. Even that representation of the seller to the Food Inspector would not have helped him at the trial for contravention of the provisions of Sec. 7 of the Act, if the article sold by him was proved to be food, as defined under the Act. Even that representation of the seller to the Food Inspector would not have helped him at the trial for contravention of the provisions of Sec. 7 of the Act, if the article sold by him was proved to be food, as defined under the Act. If such representation made by the seller to the Food Inspector, at the time of the sale of the sample, is given importance, in all cases of sale of samples to the Food Inspector, the seller would for the purpose of evading his responsibility make a representation that the article, which he was selling to the Food Inspector, was not meant for the purpose of human consumption. " ( 18 ) IN the case of State of Gujarat v. C. K. Sindhi, reported in 1999 (1) glh 29, this Court considered definition of sale, and held as under :-"14. The Apex Court in the case of Food Inspector v. Cherukatil Gopalan reported in 1971 (2) SCC 322 has held that the sale of an article to a Food Inspector for analysis is a sale. In the said judgment, the Apex Court also considered the decision of the Apex Court in the case of Mangaldas Raghavji Ruparal and Anr. v. State of Maharashtra and Anr. reported in 1965 (2) SCR 894 wherein it was held that there is a special definition of "sale" in Section 2 (xiii) of the Act which specifically includes within its ambit the sale for analysis. It was contended before the Apex Court that once there is a sale as defined in the Act of an article of food, it is not necessary to establish that the accused are dealers in that article as such. After considering various decisions, in Paragraph 18, the Apex Court held that when there has been a sale to the Food Inspector for analysis of an article of food, which, when found to be adulterated, the accused is guilty of an offence. 15. In the case of State of Tamil Nadu vs. R. Krishnamurthi reported in 1980 (1) SCC 167 , it was held that an article even if not intended for human consumption, if generally or commonly used for human consumption or in preparation of human food, would be food within Section 2 (v ). 15. In the case of State of Tamil Nadu vs. R. Krishnamurthi reported in 1980 (1) SCC 167 , it was held that an article even if not intended for human consumption, if generally or commonly used for human consumption or in preparation of human food, would be food within Section 2 (v ). It was further held that an unqualified sale of such food for analysis is sale within Section 2 (xiii) even if it is not offered for sale for human consumption. It was further held that sale of gingelly oil mixed with groundnut oil as such for analysis would be an offence punishable under provisions of the Act even if the oil sold is for external use only. " ( 19 ) IN view of the above, it is clear that the trial Court has seriously erred in law in coming to the conclusion that the provisions contained in the Act and Rules are not applicable to the sample of Coconut Oil. 7/05/1999 ( 20 ) ). Mr. Soparkar submitted that in the instant case, panchnama is not duly proved in evidence. Panch has not supported the prosecution and panchnama is not exhibited. He submitted that in paragraph 13 of the judgment, the trial Court has considered the submission that the Panch is not supporting the case of the prosecution. He submitted that as panchnama is not proved in accordance with law, it cannot be said that the sample was taken after following the procedure laid down in the rules. It transpires that in answer to this, the trial Court in paragraph 14 observed that the prosecution has successfully proved that the sample of Coconut oil was collected in accordance with law and the procedure laid down in the Act and Rules, and no breach of any provision was committed while collecting the sample. The trial Court observed that the Court scrutinised the evidence minutely and from that it is very clear that while collecting the sample, no breach of rules has been committed. On the original panchnama, number is given as Exh. 74. Mr. Soparkar submitted that the same is not signed by the Judicial Officer. Rojkam does not indicate that Exh. 74 is given to the panchnama. As a matter of fact, from the rojkam it appears that Exh. 74 is given to the Written Statement submitted by the accused. On the original panchnama, number is given as Exh. 74. Mr. Soparkar submitted that the same is not signed by the Judicial Officer. Rojkam does not indicate that Exh. 74 is given to the panchnama. As a matter of fact, from the rojkam it appears that Exh. 74 is given to the Written Statement submitted by the accused. If the evidence of Food Inspector is considered, it is clear that he has deposed about the panchnama. He has stated that the entire procedure of collecting the sample was recorded in the panchnama and the same was signed by the accused, witness and a panch. He has also stated that the same was signed in his presence, and, therefore, in my opinion, the panchnama has been duly proved. However, the trial Court has committed a serious error in not giving exhibit number at that point of time. May be that panch who was a witness to the taking of the sample was to be examined and the trial Judge might have thought it fit to give exhibit number after examining the witness. Be as it may, the fact remains that document is duly proved and the Food Inspector in his evidence has clearly pointed out the procedure followed by him and before the Court nothing was demonstrated as to how a breach was committed, and of which provision the breach was committed. Therefore, I find no merits in the submissions made by the learned Advocate. . ( 21 ) LEARNED Advocate Mr. Soparkar further submitted that Coconut Oil is not being used as a food in the State of Gujarat. However, his attention was drawn to the judgment of the Division Bench referred to hereinabove, and, therefore, he did not pursue that point further. ( 22 ) MR. Soparkar further submitted that in the instant case, it is not possible to believe that the sample forwarded on 24-12-1986 as deposed by the Food inspector, could have reached the office of the Public Analyst on the same date. Mr. Soparkar, relying on Exh. 25 submitted that the specimen impression of the seal was received through the registered post in a separate sealed packet on 24-12-1986. The evidence clearly reveals that the Food Inspector forwarded the same on 24-12-1986, vide Exh. 20 (Registered with Acknowledgment Due ). Mr. Soparkar, relying on Exh. 25 submitted that the specimen impression of the seal was received through the registered post in a separate sealed packet on 24-12-1986. The evidence clearly reveals that the Food Inspector forwarded the same on 24-12-1986, vide Exh. 20 (Registered with Acknowledgment Due ). It is true that if the same was forwarded on 24-12-1986, it could not have reached on the same date in view of the distance. Mr. Vyas, learned Counsel submitted that the specimen impression of the seal was forwarded separately, a copy of which is produced vide exh. 18. Number of the sample mentioned is : Code No. 5/srt/nvs-N/1/33/86. The same number is mentioned in Exh. 25 at two places, one in column No. 1 for Code no. and Serial No. , and the other in the column of Code No. and Sr. No. of L. H. A. Slip. Moreover, Exh. 25, it clearly states that "sample received through Railway parcel on 29-12-1986". This document is signed by Public Analyst, Food and Drugs laboratory, Baroda and also bears stamp of the said office. Even in the analysis report exh. 24 it is clearly stated that "the sample is received on the 29th day of December 1986 from Food Inspector, Navsari Muni. a sample of Coconut Oil properly sealed and fastened and that I found the seal intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis". In the report, the aforesaid Code number is also clearly mentioned. Hence there is no merit in this contention raised by Mr. Soparkar. The sample sent by the Food Inspector on 24-12-1986 vide Exh. 17 was received by the Public analyst, Baroda on 29/12/1986. The trial Court has committed a serious error in acquitting the accused on this ground. ( 23 ) IN view of what is stated hereinabove, the appeal preferred by the Food inspector is required to be allowed, and is allowed accordingly. The order of acquittal recorded by Chief Judicial Magistrate in Criminal Case No. 6361 of 1987 on 4-12-1990 is quashed and set aside. ( 24 ) MR. ( 23 ) IN view of what is stated hereinabove, the appeal preferred by the Food inspector is required to be allowed, and is allowed accordingly. The order of acquittal recorded by Chief Judicial Magistrate in Criminal Case No. 6361 of 1987 on 4-12-1990 is quashed and set aside. ( 24 ) MR. Soparkar, learned Advocate appearing for the accused submitted that in view of Sec. 235 of the Code of Criminal Procedure, if the accused is convicted, the Court unless proceeds in accordance with provision of Sec. 360, has to hear the accused on the question of sentence and thereafter, the Court has to pass the sentence in accordance with law. He submitted that even in case where accused is punished under Sec. 16 ( (1) (a) (i) of the Act, it becomes the duty of the Court to hear the accused on the question of sentence. ( 25 ) FOR breach of the provisions of Sec. 7 (1) of the Act, punishment is provided in Sec. 16 (1) (a) (i) of the Act. The minimum sentence provided is imprisonment for a term which shall not be less than six months and with fine which shall not be less than Rs. 1000. 00. The maximum punishment may extend to three years so far as imprisonment is concerned, and so far as fine is concerned, it is unlimited. ( 26 ) IT is required to be noted that when the statute prescribes minimum sentence, then even if the accused is heard on the question of sentence, the minimum sentence is to be imposed. However, if the Court has to exercise the discretion while awarding punishment, then the question of hearing the accused would arise. If the Court is of the view that punishment provided for this offence which is minimum is to be imposed, then there may not be question of hearing the accused on the question of sentence, but if the Court is of the opinion that more than the minimum sentence is required to be imposed, then the Court has to hear the accused on the question of sentence. But when minimum sentence is prescribed and the Court is awarding that minimum punishment, there may not be question of hearing the accused as contemplated under Sec. 248 (2) of the Code of Criminal Procedure. Section 235 (2) of the Cr. But when minimum sentence is prescribed and the Court is awarding that minimum punishment, there may not be question of hearing the accused as contemplated under Sec. 248 (2) of the Code of Criminal Procedure. Section 235 (2) of the Cr. P. C. and Sec. 248 (2), contemplates hearing of an accused in case the Court convicts. In case of a trial on a warrant case by Magistrate if punishment is to be imposed after exercising discretion, then procedure under Sec. 248 (2) of the Criminal procedure Code is to be followed. If on conviction, Court of Sessions does not follow the procedure laid down under Sec. 360 of Cr. P. C. or a Judicial Magistrate following warrant trial procedure. does not follow the procedure either under Sec. 325 or Sec. 360 of the Cr. P. C. then the accused is required to be heard on the question of sentence. The Apex Court in case of Tarlok Singh v. State of Punjab reported in air 1977 SC 1747 in para-2 pointed out as under :"section 235, Cr. P. C. (1974) makes a departure from the previous Code on account of humanist considerations to personalize the sentence to be awarded. The object of the provision is to give a fresh opportunity to the convicted person to bring to the notice of the Court such circumstances as may help the Court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction under Sec. 302, IPC, if the minimum sentence is imposed, the question of providing an opportunity under Sec. 235 would not arise. " ( 27 ) THUS, when it is a case of conviction and if the minimum sentence is imposed, the question of hearing the accused on question of sentence would not arise. In the facts and circumstances of the case, I am passing only minimum sentence as provided in Sec. 16 (1) (a) (i) of the Act. The respondent-accused need not be given an opportunity of hearing. As stated above, the minimum sentence is imprisonment for a term which shall not be less than six months and fine which shall not be less than one thousand rupees. Thus, the accused if sentenced to suffer imprisonment for six months and to pay a fine of Rs. 1000. The respondent-accused need not be given an opportunity of hearing. As stated above, the minimum sentence is imprisonment for a term which shall not be less than six months and fine which shall not be less than one thousand rupees. Thus, the accused if sentenced to suffer imprisonment for six months and to pay a fine of Rs. 1000. 00, which is minimum under the Act, the question of hearing the accused will not arise. ( 28 ) UNDER these circumstances, the accused is convicted for an offence under Sec. 16 (1) (a) (i) of the Act and is sentenced to suffer imprisonment for a period of six months and a fine of Rs. 1000. 00 (Rupees one thousand only) (in default of payment of fine the accused is sentenced to undergo fifteen days simple imprisonment ). The accused is granted three months time to pay fine. The accused is also granted four months time to surrender, but shall deposit the amount of fine in the trial Court within the time specified hereinabove. If the amount of fine is not paid, the trial Court shall at once execute the order passed by this Court. xxx xxx xxx the appeal stands allowed accordingly. .