The accused was convicted for a second offence under section 7 of the Prevention of Food Adulteration Act, 1954, on a plea of guilty by her, and was sentenced to pay a fine of Rs. 80 only. Section 16(1)(g)(ii) of the aforesaid Act prescribes, that for a second offence, the punishment shall be imprisonment for a term which may extend to two years and fine. There is a Proviso to this, which reads:

“Provided that in the absence of special and adequate seasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees.”

On the terms of the section including the Proviso, it is clear, that the sentence imposed is illegal, and the reference made by the learned Sessions Judge, Kottayam, is in order. The learned Magistrate, who has imposed this illegal sentence, has in my opinion, not cared to read these provisions, or if he has read them, has not cared to understand their meaning. He has failed to note that on a true reading of the provisions, for a second offence, first, imprisonment and fine must both be imposed, secondly, such punishment shall generally be, imprisonment for not less than one year and fine not less than Rs. 2,000, thirdly, special and adequate reasons must exist and must be stated in the judgment, for imposing a lesser sentence and fourthly, the punishment must include both forms, imprisonment and fine. The Magistrate did not state any reason whatever in his judgment, for imposing the sentence of fine of Rs. 80 and in his explanation to the Sessions Judge, has made the statement, that the accused is a widow and is poor. I am not quite clear, that widowhood by itself, has any relevance, but I do not say anything as to the other ground, as to which nothing was stated in the judgment. The learned Public Prosecutor pressed me to impose a sentence here, but I consider, that it is for the Magistrate primarily, to exercise his discretion within the limits prescribed by law, when the special circumstances of the case, if any, have to be taken into consideration of which I have no information. I, therefore, prefer to send back the case to the Magistrate concerned, to impose a proper and legal sentence, in accordance with law. The reference is answered as above.

M.C.M. ----- Reference answered.

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