BHUKAN LAL Vs. STATE

JUDGEMENT

(1.) Chief Judicial Magistrate, Rampur found that applicant Bhukan . Lai was, on 17th of November, 1977 at about 9.45 a. m. selling Jalebi, Bundi Ka Laddu, Barfi and other edible articles without any licence, and that he had exposed those article for sale in unsanitary condition without properly covering the same so as to avoid infection, dust and flies. In the result he held him guilty under Sections 7/16 of the Prevention of Food Adulteration Act on two counts for contravening the provisions of Rules 49 and 50 framed by the Central Government in exercise of its powers under Clause (g) of Sub-section (1-A) of Section 23 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). As regards sentence, he observed that the applicant was petty hawker who could be dealt with leniently. In the result, he sentenced the applicant to reigorous imprisonment of three months and to a fine of Rs. 500/-under each of the two counts.

(2.) Aggrieved, the applicant went up in appeal before Sessions Judge, Rampur, who affirmed the finding of the Chief Judicial Magistrate with regard to contravention of Rules 49 and 50 by the applicant. On question of sentence the learned Sessions Judge observed that sweetmeat etc., are articles of food, sale of which is prohibited without licence under Rule 50 of Prevention of Food Adulteration Rules. Accordingly, the case fell under Sub-clause (i) of Section 16(1)(a) of the Act. Sub-clause (ii) of Section 16(1)(a) related to residuary food articles not covered by Sub-clause (i). Accordingly, it was first proviso to Section 16(1)(a) and not the second proviso thereof which was applicable to the facts of the case. Under the first proviso minimum sentence of three months' rigorous imprisonment and fine of Rupees 500/- had been provided. As the learned Magistrate had, in the circumstances of the case, himself awarded the minimum sentence provided by law, the sentence awarded by him could not be reduced any further. Hands of the Court were tied and it had to enforce the law as enacted by Legislature and it had. no other option but to award at least the minimum sentence provided by law. In the result, he dismissed the appeal and upheld the sentence awarded by the trial Court. Aggrieved, the applicant has come up in revision before this Court.

(3.) learned Counsel for the applicant did not question the finding recorded by the two Courts below that on 17th of November, 1977 the applicant had been found selling articles of food in contravention of the provisions of Rs. 49 and 50 of the Rules. According to him, the learned Sessions Judge erred in holding that the instant case was covered by Sub-clause (i) of Section 16(1)(a) and by first proviso to Section 16(1)(a) according to which the Courts were precluded from imposing any sentence of less than three months' rigorous imprisonment and a fine of Rs. 500/-. He contended that the case was one which fell under Sub-clause (ii) of Section 16(1)(a) and as it concerned contravention of rules made under Clause (g) of Sub-section (1-A) of Section 23 of the Act, the second proviso under which it was open to the Court for special reasons to be recorded to impose a sentence of imprisonment which may be less than three months rigorous imprisonment and fine which may be less than Rs. 500/-, but which may extend to three months' rigorous imprisonment and a fine of Rupees 500/-. The learned lower appellate Court was, therefore, clearly in error in holding that it was not possible for it to impose a sentence which was less than three months' rigorous imprisonment and a fine of Rs. 500/-. A perusal of the judgment shows that the two Courts below were satisfied that there were reasons for not awarding the minimum sentence provided by Section 16(1) of the Act, but then the appellate Court did not award a lesser sentence as it thought that it had no jurisdiction to do de and that it would have substantially reduced the sentence if it had the power to do so. He therefore, prayed that this Court should, in exercise of its revisional jurisdiction substantially reduce the sentence imposed upon the applicant.