S.C. Mathur, J.
1. This appeal has been directed by the State against the order of acquittal dated 10-7-74 recorded by the learned Sessions Judge, Unnao in proceedings relating to charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. The respondent had been convicted of the offence by the learned Magistrate by his order dated 30-3-1974 and sentenced to pay a fine of Rs. 1000/- and imprisonment till rising of Court. On appeal preferred by the respondent the learned Sessions Judge passed the order of acquittal.
2. Before the learned trial Court the charge against the respondent was that he was selling Pera with fat contents of 246% instead of 5% prescribed under the U.P. Pure Food Rules 1952 framed in exercise of the power conferred under Section 47 of the U.P. Pure Food Act, 1950.
3. The respondent did not dispute the fact that the fat contents of the Pera of which sample was taken from him was 2.46% instead of 5% prescribed under the rules. His case was that the fat contents were less for two reasons. Firstly the Pera had been prepared out of the Khoya made from the cows' milk instead of buffalo milk and secondly it was rainy season when the fat content of milk was less.
4. The learned Magistrate did not accept the defence of the respondent and recorded the order of conviction mentioned hereinbefore. The learned Sessions Judge was of the view that under Rule 45(a) of the U.P. Pure Food Rules, the standard of fat had been prescribed in respect of Khoya and not for Pera and, therefore, the respondent could not be said to have contravened any provision of the Act or Rules framed thereunder.
5. In the appeal it was urged by Sri N. R. Kashyap, learned Government Advocate that Pera was made of Khoya and sugar and the milk fat in the Pera was supplied by the Khoya and that under Rule 45(a) the minimum milk fat in a sample of sweetmeat prepared from milk products was required to be not less than 5%, According to the learned Counsel since the milk fat in Pera was supplied by Khoya only the standard of 5% prescribed under the Rule was clearly referable to the Khoya which had been used in the preparation of the Pera. The further argument of the learned Counsel was that when Khoya was mixed with sugar for preparing Pera the milk fat content of the Khoya was not destroyed and the same could be determined by analysis and that the milk fat content reported by the Public Analyst actually reflected the milk fat content of the Khoya used in the Pera. On this basis the argument of the learned Counsel was that the prosecution had succeeded in proving that the respondent had used in the preparation of Pera, Khoya whose milk fat content was less than 5%. This argument of the learned Counsel has substance. In this Court we had summoned the Public Analyst Dr. S.B. Singh who was examined as H.C. Witness No. 1. The witness stated that Pera was prepared by mixing sugar and Khoya. The witness described the method of preparing Khoya. He has further stated that when a sample of Pera is received the adulteration is tested by finding out milk fat content thereof. In cross-examination by the learned Counsel for the respondent this witness further stated that milk fat contents were not reduced through frying or by mixing with other arts. In view of this statement it was possible for the Public Analyst even after the Khoya had been mixed with sugar and converted into Pera to find out the milk fat contents of the Khoya used in the preparation of the Pera. As such the report of the Public Analyst which indicated that the milk fat contents of this sample of Pera were 2.46% indicated that the Khoya which was used in the preparation of the Pera had milk fat contents to the extent of 2.46% only instead of 5%. On the basis of this analysis the respondent was clearly guilty of violating Rule 45(a) of the U.P. Pure Food Rules, 1952.
6. The learned Counsel for the respondent, however, urged that the testimony of H. C. witness No. 1 indicated that the analysis of the sample was made on the basis of old rules, viz. U.P. Pure Food Rules which were no longer in existence on account of the promulgation of the Prevention of Food Adulteration Rules, 1955 framed by the Central Government in exercise of the power conferred under Section 23 of the Prevention of Food Adulteration Act, 1954. According to the learned Counsel in view of Section 25(2) of the Act the rules framed by the U.P. Government stood repealed and the respondent having been prosecuted under the provisions of the old Act and the rules framed thereunder, he could not be convicted on the basis of prosecution under non-existent law. It is true that the proceedings of the case indicated that the respondent was prosecuted under the provisions of U.P. Pure Food Rules, 1952 but that has not vitiated the trial. U.P. Pure Food Act, 1950 stood repealed by virtue of Section 25(1) of the Prevention of Food Adulteration Act, 1954. Sub-section (2) of Section 25, however, provided as follows:
25(2). - Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the Prevention of Adulteration of Food, made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act.
7. On the basis of the above provision it was argued by the learned Government Advocate that the U.P. Rules prescribed a standard in respect of Pera under Rule 45(a) but the rules framed by the Central Government did not prescribe any standard in respect of either Pera or Khoya and, therefore, the standard prescribed under the U.P. Rules was not altered, amended or repealed and, therefore, by virtue of the provisions contained in Sub-section (2) of Section 25, the standard in respect of Pera prescribed under the U. P, Rules continued in force. We are unable to agree with the submission of the learned Counsel. Rule 45(a) of the U.P. Pure Food Rules prescribed the standard in following terms:
45(a). - Barfi, pera and other such sweets prepared from Khoa shall contain not less than one-third by weight of Khoa. The minimum milk fat in a sample of sweetmeat prepared from milk products shall not be less than 5%.
8. Before the learned Sessions Judge it was stated on behalf of the State that the standard of fat prescribed under the above Rules was for Khoya and not for Pera. We have therefore to see whether the Central Rules have prescribed a different standard for Khoya so as to nullify the State rules.
9. Standards of quality of various Articles of food have been prescribed under Appendix B to Prevention of Food Adulteration Rules, 1955. Item A. 11.02 of this Appendix defines milk products. This definition specifically includes Khoa also. Item A.11.02.01 provides that milk products specified in Appendix B shall not contain any substance not found in milk unless specified in the standards. Item A.11.02.17 defines the term 'Khoa' and prescribes that the milk fat content thereof shall not be less than 20% of the finished product.
10. It will be seen that while under the U.P. Rules the standard of milk fat content in respect of Khoa was 5%, the same prescribed under the Central Rules was 20% of the finished products. The Central Rule specifically states that the standard prescribed is in respect of the Khoya obtained from cow milk as well as from buffalo milk. In view of this position the defence raised on behalf of the respondent that Khoya had been obtained from cow milk will be of no avail to him. However, it is apparent that the Central Rule prescribed a standard different from the one prescribed under the State Rule of 1952. Thus the standard prescribed under the State Rules stands amended or altered by the standard prescribed under the Central Rules, The consequence of this is that in view of the provision contained in Sub-section (2) of Section 25 of the Prevention of Food Adulteration Act, 1954 the standard prescribed by the Central Rules will prevail and not the standard prescribed by the State Rules. The standard prescribed by the Central Rule is higher than what has been prescribed under the State Rules. Obviously when the respondent was guilty of contravening the State Rule he is guilty also of contravening the Central Rules. The mere fact that the respondent was prosecuted with reference to the U.P. Rules will not vitiate the trial. A trial is not vitiated on account of its described as being held under a wrong provision. Once an act is an offence under an existing law the accused cannot escape punishment by pleading that the provision invoked during trial was a non-existent one.
11. In view of the above we are of the opinion that the acquittal of the respondent by the learned Sessions Judge was not justified. The question that now arises is whether at this late stage when the respondent has already enjoyed liberty for more than four years we would be justified in sending him to jail. Under Section 16 of the Prevention of Food Adulteration Act, 1954 the minimum sentence that can be awarded against a person found guilty of the offence under the Act is six months imprisonment and fine of Rs. 1000/-. Prior to the amendment of the Act by Prevention of Food Adulteration (Amendment) Act No. 34 of 1976, the first proviso1 to Sub-section (1) of Section 16 of the Act provided as follows:
Provided that -
(i) if the offence is under Sub-section (i) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2....
(ii) ...the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both.
The offence in the present case was committed on 21-8-1972 and therefore the above proviso would be applicable if the conditions prescribed thereunder are fulfilled. The allegation against the respondent was that he was selling an article of food which did not contain the prescribed standard of fat. In other words the allegation was that the article of food was adulterated within the meaning assigned to the term under Section 2(i)(1). Section 2(i)(1) provides as follows:
Adulterated' - an article of food shall be deemed to be adulterated -
(1) if the quality of purity of the article falls below the prescribed standard....
The allegations made against the respondent fulfilled the conditions of the Proviso. It is, therefore permissible in the present case to award a sentence which is less than the sentence prescribed under Sub-section (1) of Section 16 of the Act. The respondent had not been convicted previously under the Act. He franky admitted the factual position. He was acquitted on 10-7-1974 and since then he has been enjoying his liberty; it is more than 4A years now. At this late stage we do not consider it expedient to send the respondent to jail. In our opinion ends of justice will be fairly met by sentencing the respondent only to fine of Rs. 500/-.
12. In view of the above, the appeal preferred by the State is allowed. The order of acquittal passed by the. learned Sessions Judge is set aside. The respondent in convicted of the offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 and is sentenced to pay the fine of Rs. 500/- within two months from the receipt of record by the learned Magistrate, failing which he shall undergo rigorous imprisonment for 3 months.