( 1 ) THIS is a reference by the learned Additional District Magistrate of Saharanpur arising out of a prosecution under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the act.) According to the prosecution, Abdul Wahid accused was suspected for selling adulterated milk; One Food Inspector purchased a seer of milk from the accused, and divided the milk into three phials. One phial was given to the accused, while another phial was sent to the Public analyst to Government. The Public Analyst reported that the milk contained 13 per cent added water. The accused was prosecuted for having exposed adulterated milk fox sale. The accused pleaded not guilty. He was, however, con-victed by the learned City Magistrate, Saharanpur under Section 7 read with Section 16 of the Act. He was sentenced to a fine of Rs. 100/- or rigorous imprisonment for one month in default of fine.

( 2 ) THE Municipal Board Saharanpur went up in revision. The revision application was taken up by the learned Additional District Magistrate 06 Saharanpur. He was of the view that, the sentence passed by the trial court upon the accused was not in accordance with law. The case was submitted to this Court for appropriate orders. This Court issued notices to parties on the question of enhancement of the sentence.

( 3 ) THE Food Inspector appeared as a witness for the prosecution. He described how he took samples from the milk exposed by the accused for sale. The Public Analysts report is on the record. The report shows that the milk was adulterated. Abdul Wahids conviction under Section 7 read with Section 16 of the Act is proper.

( 4 ) THE main question raised in this reference is the legality of the sentence. Section 16 of the Act provides for penalties. The penalty provided for the first offence is imprisonment for a term which may extend to one year or fine or both. The penalty prescribed for a second offence is imprisonment for a term which may extend to two years and fine. The proviso to Sub-clause (2) of Clause (g) of Section 16 (1) lays down that, in the absence of special and adequate reason to the contrary, the imprisonment shall not be less than one year and the fine shall not be less than two thousand rupees.

( 5 ) THE trial Court mentioned in its judgment that the accused was previously convicted and sentenced to imprisonment for two months in a case of adulteration. The learned Additional district Magistrate therefore treated this case as one of a second offence. It will be seen that, section 16 prescribed a minimum sentence for a second offence. The sen-tence actually passed in the present case is less than the minimum prescribed under Section 16 of the Act for a second offence. So, if it is a fact that this is a second offence committed by the accused under this Act, the sentence passed by the trial Court would be illegal.

( 6 ) THE learned counsel for Abdul Wahid maintained that the alleged previous conviction has not been proved.

( 7 ) THE Food Inspector appeared before the Court as P. W. 1. In his examination-in-chief he stated that, the accused had been previously sentenced to imprisonment for two months for adulteration of milk. The witness was not cross-examined at all. It was therefore urged for the prosecution that, the statement of the Food Inspector on this point is sufficient for proving the previous conviction.

( 8 ) SECTION 511. Cr. P. C. describes how previous conviction may be proved. Section 511, Cr. P. C. states : "in any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force-- (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was had to be a copy of the sentence or order, or, (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which