STATE Vs. BADRI

JUDGEMENT

(1.) THESE are two connected cases which may well be disposed of by one single judgment. S. B. Criminal Revision No. 428 of 1963 is a revision application filed by the petitioner Badri against his conviction and sentence passed under Section 7/16 of the Prevention of Food Adulteration Act by the Municipal Magistrate, Jodhpur, on 4th June, 1963, and upheld by the appellate Court whereby he is to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- and in default or payment of fine to further undergo rigorous imprisonment for ten months. Learned Additional Sessions Judge, while disposing of the appeal of the petitioner, recorded his conclusion that under the circumstances of the case, the offence committed by the petitioner was the third one and therefore his sentence of imprisonment in accordance with the provisions of the law should be enhanced from one year's rigorous imprisonment to two years' rigorous imprisonment and the fine be increased from Rs. 2,000/- to Rs, 3,000/ -. A reference (D. B. Criminal reference No. 279 of 1963) is therefore made by the learned Additional Sessions judge for the enhancement of the punishment of the petitioner.

(2.) THE facts of the prosecution case are that on 14th July, 1959 the Food inspector, while he was on his usual round, found the petitioner selling milk from one iron container at the crossing of the Residency and Pali roads at Jodhpur. That container at that time had about 10 to 12 seers of milk in it. The Inspector gave a notice to the petitioner in the prescribed form No. 6 and purchased 3/4th seer of milk and paid to the petitioner annas -/8/- as its price. The samples were sealed in three bottles in the presence of the petitioner and the motbirs and they were sent to the public analyst for examination. The report of the public analyst Ex. P. 4 revealed that the sample of the milk did not conform to the prescribed standard of purity. Therefore, after obtaining necessary sanction from the local authority, the petitioner was challaned in the Court of the Municipal Magistrate, Jodhpur, to stand his trial under Section 7/16 of the Prevention of Food Adulteration Act, 1954. Learned trial Magistrate, after the trial, came to the conclusion that the milk was adulterated and it was found to contain the following percentage of fat and solid non-fat: <FRM>JUDGEMENT_46_TLRAJ0_1964Html1.htm</FRM> It was the goat milk in this case and therefore, according to the prescribed standard, it would have contained not less than 3% of milk fat and not less than 9% of milk solids other than: milk fat. The milk was found to be deficient in its solid non-fats and the petitioner was, therefore, found guilty under Section 7, read with Section 16 of the Prevention of Food Adulteration Act. While passing the sentence, the learned Magistrate also observed that the petitioner was convicted twice before. In the first case, he was sentenced to pay a fine of Rs. 125/- for selling the adulterated milk and for the second time his sentence was reduced by the High Court to pay a fine of Rs. 500/- and in default of payment of fine to undergo six months' rigorous imprisonment. The, contention of the petitioner is that in spite of the two previous convictions to his credit, he cannot be deemed to have committed the third offence because learned single Judge of this very Court, while reducing his second sentence to a fine of Rs. 500/- observed that the offence shall be regarded as first offence committed by the petitioner and it was on that basis that his sentence was reduced by the High Court. While considering the said observations of the High court in S. B. Criminal Revision No. 38 of 1962, the learned Magistrate took the view that the present offence of the petitioner shall be treated as second offence and, therefore, under Section 16 (1) (g) (ii), read with the proviso, he passed the minimum sentence prescribed for the second offence, that is, imprisonment for one year and a fine of not less than Rs. 2,000. The learned Additional Sessions, Judge, while dealing with the question of sentence, took a different view of the matter and he came to the conclusion that the petitioner was convicted on two previous occasions, and therefore, this offence should be treated as the third offence and hence he proposed by making a reference to enhance the punishment as prescribed by the proviso to Clause (iii) of section 16 (1) (g) of the Act. It is in these circumstances that the learned additional Sessions Judge has made the reference to enhance the punishment.

(3.) IT will be useful to give certain relevant dates in this connection. The first offence for which the petitioner was convicted and sentenced to pay a fine of Rs. 125 was committed by him on 2nd June, 1959 and he was punished by the magistrate on 9th June, 1960. The second sample for which he was convicted by the Court on 19th November, 1960, was taken on 15th June, 1959. For that offence the petitioner was sentenced by the trial court to undergo one year's rigorous imprisonment and a fine of Rs. 2,000 as it was considered to be the second offence. The conviction and sentence was upheld by the appellate court but the High Court in revision filed by the petitioner reduced the sentence on 12th february, 1962 to a sentence of imprisonment already undergone and fine of Rs. 500, and in default of payment of fine to undergo six months' rigorous imprisonment. The offence to which this case relates is said to have been committed on 14th july, 1959 when the Food Inspector took the sample from the petitioner's container. Somehow, the case for this offence could not proceed in the court and the petitioner was served with a summons for the first time to attend the court on 23rd February, 1961. The learned Magistrate completed the trial on 4th June, 1963 and convicted the petitioner for the said offence on that day and sentencing him for one year's rigorous imprisonment and Rs. 2,000 fine treating it to be a second offence.