Judgment

SHELAT, J.:- In March 1967, the appellant was an employee in a sweetmeat shop, known as Bengal Sweet Shop, being shop No. 6, Sector II, in Ramakrishna Puram, New Delhi. The shop was owned by one Budh Ram and one A. K. Bhattacharya.

2. On March 15, 1967, wit. F. Dean, a Food Inspector in the employment of the Municipal Corporation of Delhi, went to the said shop and purchased patisa which were sold to him by the appellant. These were sold to him from a lot exposed for sale. The Food Inspector then divided the patisa into three portions and packed each of them into sealed bottles, one of which was handed over by him to the appellant.

3. On an analysis of the sample by the Public Analyst appointed under the Prevention of Food Adulteration Act, XXXVII of 1954 it was found that the patisa were prepared with unpermitted coal tar dye, and therefore, were adulterated food stuff. A complaint to that effect was filed before the Magistrate, 1st Class, Delhi, who, after recording evidence, found the appellant and the said Budh Ram guilty under S. 7 (1) read with S. 16 (1) of the Act, and sentenced each of the two accused to simple imprisonment for a period of six months and a fine of Rupees 1,000, in default imprisonment for a further period of three months. On an appeal by the appellant and his co-accused, the said Budh Ram, the Additional Sessions Judge allowed Budh Ram s appeal and set aside the order of conviction passed against him on the ground that though he and the said Bhattacharya were partners in the firm which carried on the said shop, there was nothing to show that Budh Ram was in charge of the said shop or its business or was in any way responsible for the sale of articles sold in the shop. He found that Budh Ram was, on the contrary, an employee of a club in New Delhi and was therefore at best a sleeping partner.

So far as the appellant was concerned, the Addl. Session Judge held that he was an employee of the firm, concerned with the sales, that the prosecution had led sufficient evidence to establish its case against him, and therefore, his conviction could not be interfered with. Regarding the sentence awarded to him, the Addl. Sessions Judge remarked that (a) the case was not covered by S. 2 (i) (j) of the Act, but was one which amounted to violation of rules 23 to 30 of the rules framed under the Act (b) that there was nothing in the evidence to show that the use of the unpermitted coal tar dye in the manufacture of the patisa in question rendered them injurious to health, and (c) that there was no allegation of the appellant having committed a similar offence before. On these grounds he partially allowed the appeal by reducing the sentence of imprisonment to the period of imprisonment already undergone by the appellant before he was granted bail. The order awarding the said fine was not interfered with.

4. Against that order, the Municipal Corporation filed a revision petition in the High Court urging that in view of the mandatory provisions of S. 16 of the Act providing for the compulsory minimum sentence, the Addl. Sessions Judge ought not to have interfered with and reduced the sentence imposed by the Trial Magistrate. The High Court accepted that contention and setting aside the order of sentence, as modified by the Addl. Sessions Judge, restored the order of sentence passed by the Trial Magistrate. The High Court however, granted a certificate under Art. 134 (c) of the Constitution. The appellant filed this appeal on the strength of that certificate.

5. Counsel for the appellant did not challenge before us either the order of conviction or the order of sentence passed against him by the High Court, which, as aforesaid, confirmed the conviction and restored the order of sentence passed by the Trial Magistrate. The only point raised by him was that the appellant should be given the benefit of S. 4 of the Probation of Offenders Act, 1958 under which the sentence of imprisonment awarded to the appellant could be