Prem Prakash, J.
1. Fyare Lal, found guilty of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (to be hereinafter referred as the Act) and sentenced to a term of 8 months' R.I. by a Magistrate, First Class, Barabanki, which in appeal was reduced to a term of six months R.I. has obtained this rule in revision against the order of the IIIrd Temporary Civil and Sessions Judge, Barabanki. While admitting the revision, a learned single Judge of this Court issued notice for enhancement of sentence under Section 439(2), Cr.P.C. In this manner the two revisions are before us.
2. The facts, as they have been found by the two courts below, are : The Food Inspector found the revisionist, Pyare Lal, selling 'Kampats' (sweets) near the Sugar Mill, Barabanki, on 21st March, 1972. The Food Inspector purchased 450 grams of Kampats, from the revisionist, He informed the revisionist that the 'Kampats' had been purchased by him as sample for being sent for analysis by the public Analyst. The requisite formalities were performed by the Food Inspector, and the said sample in sealed bottle was sent to the Public Analyst. In the opinion of the Public Analyst the 'Kampats' were of red, yellow, orange and white colour, and the test for coaltar dye was found to be positive and the sample was found coloured with an unpermitted coaltan dye, namely, Rhodamine B. Accordingly after obtaining the sanction of the District Medical Officer of Health, the revisionist was prosecuted and, ultimately found guilty of the offence. The plea of the accused was that he had purchased the 'Kampats' from the market and did not know its ingredients as he was not Its manufacturer. He, however, failed to prove any written warranty, as provided by Section 19 of the Act. The Magistrate sentenced the revisionist to eight months R.I. but he did not impose the sentence of fine. In appeal the learned Sessions Judge reduced the sentence of imprisonment to a term of six months' R.I.
3. Learned Counsel for the revisionist does not dispute the finding of the appellate court that the instant case falls under Section 16(1)(a)(i). In a case covered by Section 16(1)(a)(i), the Act provides that the offender 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. In Nanak Chand v. State of U.P. (1971 All LJ 1229) a Division Bench of this Court has held that when an article of food is coloured by any matter other than the colouring matter prescribed in respect thereof by the Prevention of Food Adulteration Act, it is a clear case of the article being adulterated, and such a case of adulteration falls within the ambit of clause (i) Sub-section (1)(a) of Section 16. In such a case the sentence to be awarded to the accused must be in conformity with the minimum sentence prescribed by Section 16 of the Act, That being so since It was a case of adulteration falling within Clause (i) of Sub-section (1)(a) of Section 16, the trial court should have awarded the minimum sentence, namely, the Imprisonment for a period of six months with fine which could not be less than one thousand rupees. In disregarding the mandate of law the trial court has committed manifest error and therefore, the notice for enhancement of sentence under Section 439(2) was with respect rightly issued by the learned single Judge and accordingly we are of the opinion that the learned trial Magistrate should have awarded the sentence as provided in Section 16 of the Act and his failing to do so calls for our interference by way of enhancement of sentence.
4. Learned Counsel for the revisionist has contended before us that on the authority of a Division bench decision of this Court in Badan Singh v. State of U.P. 1976 All LJ 253 : 1977 Cri LJ 412 the benefit of the Probation of Offenders Act may be allowed to an accused who is found guilty of an offence under the Act to which the Proviso to Section 16 of the the Act does not apply. We are in respectful agreement with the view that the application of the Probation of Offenders Act to an offence under the Act is not forbidden by the latter, but the question is whether; we should exercise that power in the present, more so in a case where the 'Kampats' sold by the revisionist were found coloured with an unpermitted colour which are usually eaten by children and if such prohibited dyes are used in making such sweets, it should have a deleterious reaction upon the health of the infant section of the community. This we cannot brush aside while disposing of the contention of the learned Counsel. The revisionist being more than 21 years of age - his age being 29 years - the proposition laid down by the Supreme Court in Isher Das, v. State of Punjab : 1972CriLJ874 may also not be of any avail to him. In the aforesaid case the Supreme Court observed in para 10 of the Report; 'As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the Prevention of Food Adulteration Act, should not be deprived of the advantage of Probation of Offenders Act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penalogy.' In their later decision in Pyarali K. Tejani v. Mahadeo Ramchandra Dange : 1974CriLJ313 Mr. Justice Krishna Iyer, J., speaking for the court, made observations in para 24 of the Report which have apposite application here; 'In a country where consumerism as a movement has not developed, the common man is at the mercy of the vicious dealer. And when the primary necessaries of life are sold with spurious admixtures for making profit, his only protection is the Prevention of Food Adulteration Act and the court, If offenders can get away with it by payment of trivial fines, as in the present case, it brings the law Into contempt and its enforcement a mockery.' Further in Para 25 it was saids 'There is injustice to the community-the invisible but immense victim of the crime-in the court's misplaced sympathy for the culprit.' The adulteration of food being an anti-social crime and the Legislature, in order to ensure purity in the article of food, having prescribed a minimum sentence, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of offenders above 21 years of age, The Legislative intent is manifest and it is not for us to restrict or qualify its provisions. In that view of the matter, the submission does not appear to be well founded.
5. In the result, the revision by the revisionist is dismissed and in exercise of the power under Section 439(2) of Cr.P.C. (Old) we enhance the sentence (in addition to the term of six months R.I.) to a fine of one thousand rupees, and in default of payment of fine he is to suffer rigorous imprisonment or a further period of six months. One month's time is given to the revisionist to deposit the fine. The revisionist is on bail. He is to surrender to his bails forthwith to serve out the sentence. The Chief Judicial Magistrate, Barabanki, will send compliance report within two months from today.