SANATAN SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner's conviction has been recorded Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') for having exposed for sale in his grocery shop at Akul Hat adulterated jira meant for human consumption on the 25th May, 1978, which was detected by the Food Inspector (P.W. 4) in the presence of the Sanitary Inspector (P.W. 2) and a peon (P.W. 1) of the office of the Chief District Medical Officer besides a local gentleman (PW 3). Suspecting this article of food to be adulterated P.W. 4 purchased for the purpose of analysis, after giving notice, 450 grams of jira, as per Ext. 2, the cash memo, for Rs. 9.50 and this article, on analysis, was found by the Public Analyst to be adulterated as per the report, Ext. 8. The petitioner was prosecuted and at the trial, four witnesses for the prosecution were examined to bring home the charge to the petitioner. The case of the petitioner was that the article purchased by P.W. 4 had not been kept for sale for human consumption. Two witnesses had been examined on his behalf.

(2.) ON a consideration of the evidence, both the trial and appellate courts, for -good and sufficient reasons, came to the concurrent finding that the petitioner had exposed for sale adulterated jira meant for human consumption. The petitioner has been sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of rupees one thousand and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month. Mr. Mohanty, the learned Counsel for the petitioner, has not challenged the findings of facts. He has submitted that the petitioner was a small shop -keeper having his grocery shop in a village Hat and he had only 500 grams of jira and regard being had to these facts and circumstances coupled with the fact that there was no evidence to show that the article was injurious to health, the substantive term of imprisonment passed against the petitioner may be reduced to the period already undergone by him with an appropriate sentence of fine. Both Mr. Mohanty and the learned Additional Standing Counsel have rightly submitted that this case of adulterated jira, in the absence of any evidence to show that it was injurious to health, would be covered by the first Proviso to Section 16(1)(a) of the Act. The learned Additional Standing Counsel has, however, submitted that under the amended Proviso, minimum substantive sentences of imprisonment of three months and fine of rupees five hundred have to be imposed.

(3.) IN some of the cases to which reference has been made by the learned Counsel for the petitioner, the offences had been committed prior to the coming into force of the Amendment Act of 1976 and in the other cases, the dates of commission of the offences have not been indicated except in the case of (Bansidhar Behera v. Puri Municipality, (1981) 51 Cut LT 355:1981 Cri LJ 836) in which the petitioner had committed the offence on 19 -12 -77 i.e., after coming into force of the Amendment Act. In that case, no legal question as to the sentence had been raised or decided. Under the first Proviso to Section 16(1) of the Act, prior to the Amendment Act of 1976(which came into force with effect from 1 -4 -1976, the court could, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment for a term of less than six months or of fine of less than rupees one thousand or of both imprisonment for a term less than six months and fine of less than rupees one thousand in respect of offences covered by that Proviso, although in addition to the penalty to which the accused might be liable under the provisions of Section 6, he was punishable with imprisonment for a term which was not to be less than six months, but which could extend to three years and with fine which was not to be less than rupees one thousand. Sub -section (1) of Section 16 was substituted by the Amendment Act of 1976 and under the law as it now stands which governs this case, in respect of offences coming under the Proviso, 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 rupees five hundred. No case has been cited before me in which after examining the question of sentence, it has been held that even after the coming into force of the aforesaid amended first Proviso, an accused person, in respect of an offence committed after the Amendment Act came into force and covered by this Proviso, can be sentenced to imprisonment for a period lesser than three months or sentenced to fine for an amount lesser than rupees five hundred. If a case is covered by the first Proviso to Section 16(1) of the Act, 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 and with fine which shall not be less than five hundred rupees. These are the minimum sentences to be passed in cases covered by this Proviso.