The interpretation of S.31 of the Code of Criminal Procedure and its application in cases of conviction for multiple offences at the same trial.

Criminal Revision Petition No. 701 of 1989 was filed by the sole accused against his conviction and sentence confirmed in appeal. Crl.R.C.No. 71 of 1989 is a suo mote revision against the direction in the judgment of the appellate court remanding the case for awarding sentence after confirmation of the conviction.

2. In C.C.No. 342 of 1987 on the file of Judicial First Class Magistrate, Nedumkandam the revision petitioner was prosecuted by the Food Inspector, Devikulam Circle for having sold adulterated sugared boiled Buffalo milk as well as for dealing in food items without the requisite licence. Prosecution was on the basis of Ext. P7 report of analysis which showed that the milk fat and milk solid not fat contents were below the minimum prescribed and that the sample also contained 16% of added water.

3. The Complainant Food Inspector examined himself as P.W.1. P.W.2 is an independent attestor who was present, when action was taken. He attested Ext. P5 mahazar. P. W.3 is the Local Health Authority, who was also present when the sample was taken. P.W.4 is the peon who was along with P.W.I. He also attested Ext. P5. These are the relevant items of evidence taken along with the concerned document.

4. The learned Magistrate convicted the revision petitioner under both the counts, but he was sentenced to undergo Simple Imprisonment for three months and to pay a fine of Rs.1000/- with a default sentence of Simple Imprisonment for three more months, only for having sold adulterated milk. No sentence was awarded for dealing in food items without licence.

5. In Criminal Appeal No. 17 of 1989 filed by the revision petitioner the learned Sessions Judge, Thodupuzha confirmed the conviction but the sentence passed by the Magistrate was set aside and the case was remanded for the purpose of passing a sentence according to law under the provision of S.31 of the Criminal Procedure Code. The learned Sessions Judge relied 'on the provisions of S.31 of the Code of Criminal Procedure and the decision of this Court in Varghese v. State, 1986 KLT 1285.

6. S.31 of the Code of Criminal Procedure deals with sentences in cases of conviction for several offences at the same trial. It is necessary that sentences should be awarded for each of the offences for which conviction is entered. This aspect was considered by the Division Bench in 1986 KLT 1285. In paragraph 37 of that judgment, relying on the decision of the Supreme Court in Jayaram Vithoba and another v. The State of Bombay, AIR 1956 SC 146, the Division Bench said that the lower court has not awarded separate sentences for the offences punishable under S.323 and 449 of the Indian Penal Code though the accused was convicted under those sections also. But the court did not interfere with the irregularity as the State has not chosen to file an appeal. In this case also position was the same. The Food Inspector has not filed any appeal and the appeal was only by the accused against his conviction and sentence. Under S.386 of the Code in an appeal against conviction filed by the accused the court cannot remand a case for awarding sentence for an offence for which the accused was not sentenced even though convicted. That can be done only if there was an appeal by the State. Anyhow that aspect may not arise for consideration.

7. The defence of the revision petitioner is that the Buffalo milk was not intended for sale as such and therefore the Food Inspector was not justified in purchasing the milk and sending it for analysis for the purpose of taking action. The learned counsel brought my attention to the provision to S.10(2)of the Prevention of Food Adulteration Act which says that no sample of any article of food, being primary food, shall betaken under the section if it is not intended for sale as such food.

8. Admittedly the revision petitioner is the owner of a tea-shop-cum-hotel. So also there is no dispute between the parties that boiled sugared milk was purchased from the quantity whic