Imposition of five alone less than Rs. 1000/- by the Court.

This criminal revision petition raises an important and interesting question; the question is whether the Court is competent under the proviso to section 16 of Prevention of Food Adulteration Act-XXXVII of 1954 as amended by Act XLIX of 1964 (hereinafter referred to as the Act) to award a sentence of fine alone of less than Rs. 1,000. The punishment is provided in clause (f) of sub-section (1) of section 16, which reads:

" (1) If any person

******

(f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writting in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of S. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with a fine which shall not be less than one thousand rupees.

Provided that-

(1) If the offence is under sub-section (1) of clause (a) and is with respect to article of food which is adulterated under sub-clause (1) of clause (1) of section 3 or misbranded under sub-clause (k) of clause (lx) of that section; or fill If the offence is under sub-clause (11) of clause (a), the Court may for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.

Learned Counsel for the accused in commenting on the scope of the above proviso would point out that in cases where extenuating circumstances exist and the offence is one falling under any one of the categories mentioned in the proviso, the Court is empowered to award a lesser sentence and the sentence so awarded can either be a sentence of imprisonment for less than six months or a sentence of fieu of less than one thousand rupees or a sentence of both imprisonment for less than six months and fine of less than one thousand rupees. It would, therefore, be competent for the Court to award a sentence of fine alone unassociated with a term of imprisonment.

In the case on hand the accused has been convicted under sections 7(1) and 16 of the Act for selling adulterated Ice cream and sentenced to pay a fine of Rs. 200. The reasons for taking a lenient view are stated by the learned Magistrate in the following words:

"Regarding punishment, I am inclined to take a lenient view since the addition of starch which has made the sample of " Ice-cream " adulterated, is allowed in the preparation of "mixed Ice-cream" even according to P.W. 1, even though it is legally prohibited in "Ice-cream" which is involved in this case and I consider that the technical adulteration in question is not so grave and abominable as to be visited with the extreme punishment of compulsory imprisonment, to meet the ends of justice."

We do not propose to go into the merits of the above reasoning. The point with which we are directly concerned in the present petition, is whether the Court is competent even granting that there are adequate and compelling reasons to justify a lenient view being taken, to award a sentence of fine alone of less than one thousand rupees; in other words, whether the offence could be wiped out by a mere sentence of fine only. A cursory reading of the proviso would give us such an impression; but on closer scrutiny it would appear beyond the possibility of doubt that, that is not what is intended by the proviso. What really the proviso is intended to convey is that in appropriate cases the Court shall have the power to award a sentence of imprisonment and fine less than the minimum prescribed in the section. The Court may for reasons to be mentioned in the judgment award "a sentence of imprisonment of less than six months, or a fine of less than one thousand rupees or a sentence of both imprisonment of less than six months and fine of less than one thousand rupees".