G.N. Sabhahit, J.
1. This revision petition is by the convicted accused person in C. C. No. 494 of 1976 on the file of the Chief Judicial Magistrate, Bellary, wherein he was tried for an offence punishable under Section 16 of the Prevention of Food Adulteration Act for having sold adulterated milk on 8-1-1975, The Magistrate found the accused guilty and sentenced him to undergo S. J. for six months and to pay a fine of Rs. l.000/-, in default, to undergo S. I. for two months. Aggrieved by the said order of conviction and sentence, accused went up in appeal before the Sessions Judge at Bellary in Criminal Appeal No. 5 of 1077. The learned Sessions Judge, by his judgment dated 11-3-1977 confirmed the order of conviction passed by the learned Magistrate, but set aside the order of sentence and remitted the case back to the learned Magistrate as the accused was not given an opportunity to submit on the aspect of sentence. The learned Magistrate after hearing the accused on the aspect of sentence levied the same sentence which he had passed earlier. Aggrieved by the said order, the convicted accused has come up in revision before this Court,
2. The learned Advocate appearing for the revision petitioner, raised two points before me submitting that the order of conviction passed by the Courts below was not legal and proper. He submitted that Rules 17 and 18 of the Rules framed under the Prevention of Food Adulteration Act were not complied with by the Food Inspector in this case. The Food Inspector had not sent by a separate post the memorandum and sample seals to the public analyst. He pointed out that the Food Inspector had not taken one or more independent witnesses while purchasing the sample as contemplated under Section 10 (7) of the Act.
3. Adverting to the first point viz., that the Food Inspector did not send the sample seals and memorandum, the learned Government Pleader invited my attention to the evidence of P. W. 1. wherein he has stated : 'another memorandum was sent by Registered Post to the public analyst.' On looking into the records, it is seen, the memorandum contained the sample seals also. That being so, there is no substance in the said contention raised by the learned Counsel for the revision petitioner,
4. Adverting to the second submission, it is his case that though the Food Inspector has taken two panchas at the time of sale of the milk, the panch examined viz., P. W. 2 is a partisan witness and not an independent witness inasmuch as the witness is an employee in the municipality. The learned Government Pleader resisted this argument by submitting that simply because the panch is an employee of the municipality, he cannot be dubbed as a partisan witness. It is elicited in the cross-examination of the witness that he is employed in the Municipal Water Supply and not under the Food Inspector. That being so, it cannot be said that simply because he is an employee under the municipality he becomes a partisan witness. There is no bias established in the cross-examination nor any animosity elicited against the accused. That being so, I hold that the witness is an independent witness and in that view the second contention of the learned Counsel for the revision petitioner fails. 5. Lastly, the learned Counsel submitted on the aspect of sentence, According to him, the accused is a petty milk vendor and only two cans of milk were with him and it is not even established that he was regularly selling milk, though no doubt he sold 660 M. L., to the Food Inspector. It is true that normally the offenders indulging in anti-social activities or welfare offences, should be deterrent dealt with. But it is equally well established that an offender should get only his just deserts in the tariff of punishment. The Law Commission of India, in its 47th report on 'The trial and punishment of social and economic offences' in Chapter VII para 52 has stated thus:
There is another aspect to be discussed. Criminal responsibility attracts 'measures' to meet it. If the punishable act has caused no harmful effects, punishment may be mild. If it has caused some harm but the offender can repair the damage done to society, probation would be appropriate. If the harm is serious, imprisonment would, of course, be required. These considerations are implicit in most Codes, and are stated explicitly in some of the foreign Codes. In the present context, it becomes desirable to provide that if the harm is nominal, the provision for minimum punishment should not be binding.
These principles are enshrined by an amendment to the Essential Commodities Act by adding Section 7 (2B). It becomes clear that on the facts of this case, the offender does not deserve the full measure of punishment viz., six months S. I. and fine of Rs. 1,000/-. He is a petty milk vendor. There were only two cans of milk with him. The harm done is not proved. That being so, I hold that a fine of Rs. 500/- would meet the ends of justice, that constituting his just deserts on the facts of this case.
6. Accordingly, the revision petition is allowed to that extent. The sentence passed by the Courts below is modified and the order of imprisonment is set aside and the fine is reduced to Rs. 500/- in default to S. I. for one month. Refund Rs. 500/- if the full amount of fine is already paid.