IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.456 OF 1997 The State of Maharashtra .. Appellant Versus Sidram Malleshappa Kalshetti .. Respondent Mr.J.P.Yagnik, A.P.P for the appellant. Mr.V.V.Purwant for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 18th March 2009. : 18th March 2009. : 18th March 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . Heard the learned A.P.P appearing for the appellant and the learned counsel appearing for the respondent. This is an appeal filed by the appellant-State for enhancement of sentence. The finding of the learned trial Judge is that the respondent accused has contravened provisions of section 7(iii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the said Act) and has committed an offence punishable under section 16 of the said Act. The learned Judge also held that the respondent has contravened the provisions of section 7(i) read with section 2(1a)(a), 2(1a)(b), 2(1a)(c), 2(1a)(h) and 2(1a)(i) of the said Act and has thus (2) committed an offence punishable under section 16 of the said Act. For the first offence the respondent has been convicted to pay fine of Rs.100/- and in default in payment of fine, he has been directed to suffer simple imprisonment for four days. For the second offence, he has been directed to pay fine of Rs.200/- and in default in payment of fine, he has been directed to undergo simple imprisonment for eight days. 2. The contention raised by the learned A.P.P is that the section 16 provides that there shall be a minimum punishment of imprisonment for a term which must not be less than six months but it may extend to three years with fine which shall not be less than Rs.1,000/-. He submitted that there was no choice for the learned Judge but to impose the minimum punishment prescribed by the statute. He submitted that the learned Judge has not recorded any special reason for not inflicting the minimum punishment. He submitted that in the circumstances, in this case minimum sentence prescribed by the statute will have to be imposed. 3. The learned counsel appearing for the respondent submitted that this is a case where there is a violation of Rule 14 of the Prevention of Food Adulteration Rules, (3) 1955 and therefore the respondent is entitled to an order of acquittal as this Court has repeatedly held that requirement of Rule 14 of the said Rules is mandatory. 4. I have carefully considered the submissions. I have perused the notes of evidence and other material on record. 5. The case of the appellant in the complaint filed by the Food Inspector is that on 15th September 1992 the complainant Food Inspector alongwith panch witnesses visited the business premises of the respondent where he is selling edible oil. He purchased 450 gm of sunflower seed oil from unlabelled metal pot. The said sample was divided into three parts and same was filled in empty and dry bottles. The bottles were corked and sealed. 6. The samples were sent for analysis. The report of the public analyst recorded that the sample contained extraneous Castor oil and hence it does not confirm to the standards of the oil as prescribed in the Appendix to the said Rules. It is contended in the complaint that sunflower seed oil is food article within the meaning of section 2(v) of the said Act. It is alleged (4) that violation of clause (i) of section 7 has been committed by the respondent which is punishable under section 16 of the said Act. 7. Section 16 provides for minimum sentence of imprisonment for a term not less than six months and with minimum fine which is not less than Rs.1000/-. 8. Before dealing with the submissions of the learned A.P.P, it will be necessary to refer to the submission made by the learned counsel appearing for the respondent in support of the plea of acquittal. It will be necessary to refer to the evidence of P.W.No.1 who is the complainant. In the second paragraph in his examination-in-chief he has stated thus: " ... I took the oil in clean, empty and dry steel pot. The said edible oil purchased was divided in three equal parts and filled it in three clean, dry and empty glass bottle. It was closed by fixing corks and thereafter closed by screw cap. The caps were thereafter sealed by seal lac. The bottles were thereafter affixed by labels containing information of code number (5) and serial number of L.H.A." Perusal of the cross-examination shows that only suggestion which was given was that the complainant had not shown to the accused that the bottles were clean, empty and dry. Paragraph 14 of the cross-examination reads thus: "14. It is not true that I had not shown the bottles being clean, empty and dry to the accused. It is true that as it was important to do it, I have done like that. It is true that all the important facts happened at the time of collecting sample, have been mentioned in panchnama. Prior to dividing the oil purchased in equal parts, it was taken in steel container. The steel pot should be dry, empty and clean. Steel container was part of sampling kits. The steel pot being clean, empty and dry was shown to the accused. I agree that it was essential to show the steel pot be clean, dry and empty to the accused. It is not true that the steel pot was not clean, empty and dry. It is not true that in the said pot, earlier one sample was (6) collected. We are maintaining diaries in visit." The panchanama at Exhibit 16 discloses that compliance was made with requirement of Rule 14 by collecting the sample in clean, dry bottles and the said bottles were closed tightly by using cork. In the circumstances, it is not possible to acceded to the submission made by the advocate appearing for the respondent that there was a breach of mandatory provisions of Rule 14 of the said Rules. 9. It is not in dispute that the offence alleged against the respondent is of violation of clause (i) of section 7 of the said Act. It will be necessary to refer to relevant part of section 16 viz., clause (a) of sub-section 1 thereof. 10. Sub-clause (i) of Clause (a) of sub-section 16 of the said Act is applicable where food is adultered as its quality or purity falls below the prescribed standards. Sub-clause (i) is also applicable when the food item is misbranded within the meaning of clause (a) of sub-section (ia) of section (2) of the said Act. (7) Sub-clause (ii) of clause (a) of sub-section 1 of Section 16 applies when there is contravention of any other provision of the said Act or Rules. It will be necessary to refer the provision to section 16 which reads thus: "16. Penalties.- [(1) Subject to the provisions of sub-section (1A) if any person- (a) whether by himself or by any other person on his behalf, impose into India or manufactures for sales or stores, sells or distributes any article of food- (i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; (ii) other than an article of food (8) referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or (b) whether by himself or by any other person on his behalf, imports into India or manufactures for sale or stores, sells or distributes any adulterant which is not injurious to health; or (c) prevents a food inspector from taking a sample as authorised by this Act; or (d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or (e) being manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or (f) uses any report or certificate of a test or analysis made by the Director of the Central (9) Food Laboratory or by a public analyst or any extra thereof for the purpose of advertising any article of food; or (g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing 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 section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees: Provided that- (i) if the offence is under sub-section (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of (10) sub-clause (k) of clause (ix) of section 2; or (ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24. the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees: Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be (11) mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.] The proviso states that for any adequate or special reasons to be mentioned in the judgment the Court has a discretion to impose the sentence for a term which shall not be less than three months. The second proviso also lays down that if offence is under sub-clause (ii) of clause (a) and is in respect of contravention of any Rule made under the said Act, for adequate or special reasons to be mentioned in the judgment the Court may impose a sentence of imprisonment for a term which may extend to three months. 11. In the present case the case made out in the complaint is that the sample of the sunflower seed oil does not conform to the standards of oil as provided in Appendix B to the said Rules of 1955. Therefore, there was a power vesting in the learned Magistrate to impose a punishment less than the minimum for an adequate and special reasons mentioned in the judgment. My attention has been invited to paragraphs 20 and 21 of the impugned (12) judgment. The first reason given for showing leniency is that the respondent was a petty hawker. The second reason given is that the respondent used to sell the oil only in weekly market. The third reason given is that he is no longer carrying on the business and is serving in a mill as a labourer. Taking the reasons assigned by the learned trial Judge as it, the same cannot be termed as adequate and special reasons warranting exercise of powers under the proviso to section 16(1) of the said Act. 12. However, in the present case the offence complained is of 1992. The appeal is being heard in the year 2009. Considering the peculiar facts of the case it is too late in the day to enhance the sentence and to send the applicant to jail for undergoing the balance sentence. Considering these peculiar facts, no interference can be made. 13. Hence, I pass the following order: (i) The appeal is accordingly dismissed. (ii) The plea of the respondent for acquittal is rejected and conviction and sentence (13) if upheld. (A.S.Oka,J)