PIYAREY LAL Vs. STATE

JUDGEMENT

(1.) FYARE Lal, found guilty of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (to be hereinafter referred as the Act) and sentenced to a term of 8 months' R. I. by a Magistrate, First Class, Barabanki, which in appeal was reduced to a term of six months R. I. has obtained this rule in revision against the order of the IIIrd Temporary Civil and Sessions Judge, Barabanki. While admitting the revision, a learned single Judge of this Court issued notice for enhancement of sentence under Section 439 (2), Cr. P. C. In this manner the two revisions are before us.

(2.) THE facts, as they have been found by the two courts below, are : The Food Inspector found the revisionist, Pyare Lal, selling 'kampats' (sweets) near the Sugar Mill, Barabanki, on 21st March, 1972. The Food Inspector purchased 450 grams of Kampats, from the revisionist, He informed the revisionist that the 'kampats' had been purchased by him as sample for being sent for analysis by the public Analyst. The requisite formalities were performed by the Food Inspector, and the said sample in sealed bottle was sent to the Public Analyst. In the opinion of the Public Analyst the 'kampats' were of red, yellow, orange and white colour, and the test for coaltar dye was found to be positive and the sample was found coloured with an unpermitted coaltan dye, namely, Rhodamine B. Accordingly after obtaining the sanction of the District Medical Officer of Health, the revisionist was prosecuted and, ultimately found guilty of the offence. The plea of the accused was that he had purchased the 'kampats' from the market and did not know its ingredients as he was not Its manufacturer. He, however, failed to prove any written warranty, as provided by Section 19 of the Act. The Magistrate sentenced the revisionist to eight months R. I. but he did not impose the sentence of fine. In appeal the learned Sessions Judge reduced the sentence of imprisonment to a term of six months' R. I.

(3.) LEARNED Counsel for the revisionist does not dispute the finding of the appellate court that the instant case falls under Section 16 (1) (a) (i ). In a case covered by Section 16 (1) (a) (i), the Act provides that the offender shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. In Nanak Chand v. State of U. P. (1971 All LJ 1229) a Division Bench of this Court has held that when an article of food is coloured by any matter other than the colouring matter prescribed in respect thereof by the Prevention of Food Adulteration Act, it is a clear case of the article being adulterated, and such a case of adulteration falls within the ambit of clause (i) Sub-section (1) (a) of Section 16. In such a case the sentence to be awarded to the accused must be in conformity with the minimum sentence prescribed by Section 16 of the Act, That being so since It was a case of adulteration falling within Clause (i) of Sub-section (1) (a) of Section 16, the trial court should have awarded the minimum sentence, namely, the Imprisonment for a period of six months with fine which could not be less than one thousand rupees. In disregarding the mandate of law the trial court has committed manifest error and therefore, the notice for enhancement of sentence under Section 439 (2) was with respect rightly issued by the learned single Judge and accordingly we are of the opinion that the learned trial Magistrate should have awarded the sentence as provided in Section 16 of the Act and his failing to do so calls for our interference by way of enhancement of sentence.