P.N. Bakshi, J.
1. The applicant has been convicted under Section 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a fine of Bs. 1,000/-. In default of payment of fine he is to undergo three months rigorous imprisonment. His conviction and sentence have been confirmed in appeal by the Sessions Judge, Farrukhabad. Hence this revision which was admitted by me on the question of sentence.
2. According to the prosecution case the sample of milk which was taken from the possession of the accused applicant was sent to the Public Analyst for report. The sample contained 4.6 per cent fat and 8.5 per cent non-fatty solids. The minimum prescribed standard of milk is 6 per cent fat and 9 per cent non-fatty solids. On these facts, which have been established, the applicant has been prosecuted and convicted as above.
3. Counsel for the applicant has submitted that the accused has been in jail for three months. There is nothing on the record to Indicate that he is a previous convict. As such he should be given the benefit of the First Offenders Probation Act, The Supreme Court has ruled in the decision reported in : 1977CriLJ12 Prem Ballab v. State (Delhi Administration) that Courts should discourage the applicability of the First Offenders Probation Act to offenders who commit socio-economic offences. The tendency to adulterate food stuff is on the increase. It is highly detrimental to public health. As such I am very reluctant to give the benefit of the aforesaid Act to the applicant. Even on the ground of age it is obvious that the applicant was about 24 years of age on the date of the commission of the offence. In my view, therefore, this is not a fit case where the applicant should be allowed the benefit of the aforesaid Act
4. learned Counsel for the applicant has also argued that the sentence imposed upon the applicant can be reduced under the first proviso to Section 16 of the Prevention of Food Adulteration Act, as amended by Act 34 of 1976. That proviso runs thus;
Provided that -
(i) if the offence is under Sub-clause (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 Sub-clause (k) of Clause (ix) of Section 2....
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.
It is clear from this proviso that the leniency which is permissible in law in the matter of sentence would be confined to an offence with respect to an article of food being primary food.
5. Primary food has been defined in Section 2(xii-A) thus:
'Primary Food' means any article of food, being produce of agriculture or horticulture in its natural form.
Milk is not a 'primary food' according to the definition mentioned above. As such it would not be covered under this proviso.
6. But it is significant to note that the expression 'primary food' was inserted by Act 34 of 1976 in Section 2 of the Prevention of Food Adulteration Act, 1954. This amendment came into force on 17-2-1976. Therefore, the legal position is clear that after the date of amendment the said proviso would not apply to an article which Is not a 'primary food.
7. In the instant case the offence in question had been committed on 28-8-1975. On that date the expression 'primary food' had not found its existence in the statute. Section 16 of the Prevention of Food Adulteration Act 1954 was amended by Act 49 of 1964. In the amended Section the proviso to Section 16 ran as follows:
Provided that -
(i) if the offence is under Sub-clause (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 or mis-branded under Sub-clause (k) of d. (ix) of that section.
the court may for any 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 imprisonment for a term of less than six months and fine of less than one thousand rupees.
8. The definition of food as it existed prior to the amendment by Act 34 of 1976 meant any article used as food or drink for human consumption other than drugs and water'. According to this definition milk would certainly be an article of food meant for human consumption. In my opinion, therefore, the restrictions which have now been created by Amendment Act 34 of 1976 would not be applicable to an item of food as defined prior to the enforcement of this Act, Therefore, for adequate reasons, the sentence of imprisonment can be reduced to a period not less than three months and the fine imposed thereunder to an amount not less than Rs. 500/-.
9. In this view of the matter, though First Offenders Probation Act cannot be made applicable in the instant case, yet having regard to the fact that this is the first offence committed by the accused under the said Act and that he has already been in jail for over three months and further that he has been fined a sum of Rs. 1000/- I consider it desirable in the interest of justice to confirm his conviction under Section 7/16 of the Prevention of Food Adulteration Act but to reduce the sentence of imprisonment awarded to him to the period already undergone. The interim order passed by this Court on 28th July 1978 staying realisation of fine to the extent of Rs. 500/- is hereby vacated. The applicant shall pay the entire amount of Rs. 1000/- and in default of payment of the fine he shall undergo rigorous imprisonment for three months.
10. With the above modification in sentence this revision application is dismissed.
11. The record of the case shall be sent down to the court below within three weeks from today.