NANAK CHAND Vs. STATE

JUDGEMENT

(1.) This reference has been made to this Court by the learned Sessions Judge, Meerut, and arises out of a case under the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The accused was convicted by the SDM, Hapur, u/S. 7 /16 of the Act, but the sentence awarded to him was imprisonment till the rising of the court and a fine of Rs. 1,000/ - and in dafault of payment of fine rigorous imprisonment for six months. The accused preferred an appeal and the learned Sessions Judge was of the view that the sentence awarded by the Magistrate was not in conformity with the one prescribed by S. 16 of the Act. Hence, he made a reference to this Court. The offence for which the respondent was convicted fell u/S. 16(1)(a)(i) of the Act. The case of the prosecution was that the accused was selling coloured Balushahi of which the sample was taken and sent to the public analyst. The report of the public analyst showed that the sample was coloured with a coal tar dye, namely, orange II which was not one of the coal tar dyes prescribed u/R. 28 of the Prevention of Food Adulteration Rules. Hence, the learned Magistrate came to the conclusion that an offence u/S. 16(1)(a)(i) of the Act had been established. As we have already observed, he awarded a sentence of imprisonment till the rising of the court and a fine of Rs. 1,000/ -. It was contended by the learned counsel for the State that this was clearly in contravention of S. 16 of the Act, which runs as under: - -

(2.) It will be evident from the provisions of the above Sec. that if any person sells any article of food which is "adulterated", he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees. In other words, the minimum sentence prescribed for an offence of the aforesaid nature is six months imprisonment and fine which shall not be less than one thousand rupees.

(3.) In our opinion the Magistrate was obviously in error in awarding a punishment which was less than the minimum punishment prescribed by the statute for the said offence. The provisions of S. 16 of the Act are explicit and do not leave any discretion in the court to depart from the same in the matter of deciding the penalty to be imposed upon an offender. It may be noted that the proviso to S. 16 of the Act contemplates certain exceptions to the minimum statutory punishment. Obviously, therefore, if the case is covered by the various clauses of the proviso the court has a discretion to impose a lesser sentence than the minimum prescribed and in certain cases it is incumbent on the court to record "adequate and special reasons" for such action. The intention of the legislature is abundantly clear from the terms of S. 16 and the proviso thereto. The legislature was alive to the propriety of prescribing a lesser sentence in certain contingencies which have been specified in the proviso. In the teeth of such specific provision made by the legislature, it is not open to the courts to add any other contingency which might justify the imposition of a lesser sentence. There is no room for doubt that all the circumstances in which such lesser penalty should be imposed were exhausted by the legislature when it engrafted the proviso to S. 16. In a division Bench decision of this Court to which one of us was a party (Cr. Ref. No. 440 of 1967, connected with Cr. Rev. No. 1990 of 1967, decided on 2 -4 -1969) the contention as to whether it is permissible to award a lesser sentence in a case like the one before us now, was considered at length. The argument on behalf of the accused that it was within the discretion of the court to award lesser sentence was repelled. It was observed: - -