Judgment

GOSWAMI, J.:- The appellant was convicted by the Judicial Magistrate, Udgir, under Section 16 (1) (a) (i) proviso (i) of the Prevention of Food Adulteration Act, 1954, read with Section 2 (i) (1) and Section 7 (i) of the said Act and sentenced to simple imprisonment till rising of the court and to pay a fine of Rs. 500/-, in default rigorous imprisonment for two months. The appellants father who was also charged for the same offence was, however, acquitted.

2. The charge against the appellant was that he sold chilli powder which was adulterated inasmuch as the percentage of the total ash was more than the permissible limit. The sample of chilli powder which was seized by the Food Inspector on April 13, 1974, contained 37.25% of the total ash against the permissible percentage of 8% It was stated in the Analysts report that the percentage of extraneous matter which was common salt mixed with the chilli powder was 32.4% The learned Magistrate found that the chilli powder was adulterated within the meaning of Section 2 (i) (1) although the prosecution was on the basis of the article being adulterated within the meaning of Section 2 (i) (c) of the Prevention of Food Adulteration Act, 1954 (briefly the Act).

3. The State of Maharashtra preferred an appeal against the order of acquittal of the father of the appellant and against the inadequacy of the sentence awarded to the appellant. The High Court dismissed the appeal against acquittal of the appellants father but allowed the appeal of the State with regard to the inadequacy of the sentence. The High Court while affirming the conviction of the appellant under Section 16 (1) (a) (i) read with Sections 2 (i) (1) and 7 (i) of the Act enhanced the sentence to six months simple imprisonment and a fine of Rs.1000/-, in default simple imprisonment for two months. Hence this appeal by special leave.

4. Mr. Tarkunde, appearing on behalf of the appellant, submits that the appeal by the State of Maharashtra under Section 377 (1), Criminal Procedure Code, 1973, was incompetent in view of the provisions of sub-section (2) of that section. He further submits that the High Court was not at all justified in a case of this nature to interfere with the sentence when the trial court had given adequate reasons for imposing the lesser sentence.

5. It is also pointed out, more or less as an alternative submission, that the power of the High Court to enhance sentence which was available under Section 435/439 Cri. P. C. of the old Code is replaced by the provision of appeal under Section 377, Cr. P. C. of the new Code. It is also stated that the High Courts power of revision, suo motu, long exercised under the older Code is now taken away under the new Code by providing for appeal against inadequacy of sentence. The above submission is put forward, ex abundanti cautela, lest we may not interfere with the sentence imposed by the High Court having regard to the possibility of exercise of powers, suo motu, by the High Court for enhancement of sentence assuming the appeal is incompetent on the ground urged by the appellant.

6. We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Courts power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Courts power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under section 397 read with Sec. 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401 (4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401 (4) does not stand in the way of the High Courts exercise of power of revis