R.N. Mishra, J.
1. The petitioner has been convicted tinder Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. He was sentenced to six month's rigorous Imprisonment and a fine of Rs. 1,000/- in default rigorous imprisonment for three months by the learned Addl. District Magistrate (Judicial), Cuttack. The sentence was varied in appeal by the learned Additional Sessions Judge and while maintaining the sentence of fine, he vacated the sentence of Imprisonment.
2. The petitioner is the owner of Jaleswar restaurant located within the town of Cuttack. At about noon on 19.1.1966. the Food Inspector found within the shop some sweets - an article of food-for human consumption stored for sale. The Food Inspector purchased 1,500 grams of the said sweets on payment of money, divided the said sweets into three equal parts and packed them in three bottles. The bottles were sealed in the presence of witnesses as also the vendor and one of them was sent for analysis. The Public Analyst reported that the food was adulterated as there was prohibited colouring material added to it. Upon due sanction the petitioner along with his salesman who had actually effected the sale was prosecuted. The salesman was found absconding and, therefore, after cognizance was taken, the 'two cases were separated.
3. The defence was one of denial.
4. The prosecution evidence which has been accepted in the courts below Is not challenged. The report of the Public Analyst (Ext. 5) and the evidence of the three witnesses examined for the prosecution leaves no scope for taking a different view on the factual aspect of the case. I would accordingly hold that tile prosecution has established that the petitioner was the proprietor of the Caesar restaurant from where on the relevant date, the Food Inspector had purchased the sweets in question which is found to be adulterated having been mixed with prohibited colouring material.
5. Mr. Mohanty pressed that the petitioner being an absentee proprietor and the prosecution having failed to establish that he had knowledge of the fact that adulterated food was being sold In his shop, there can be no conviction. Such a question is not available to be urged as mens rea is not a necessary element for the offence under the Act. In the case of Sarjoo Prasad v. The State of Uttar Pradesh : 1961CriLJ747 it has been clearly Indicated that mens rea was not & necessary element for the offence under the Act
He next contended that the prosecution in this case was belated. The purchase in question is dated 19th of January, 1966, whereas the analysis was made on 6th of May. 1966 and the prosecution commenced late in April, 1967. As such the petitioner has been substantially prejudiced in his defence. He has been denied the advantage of asking for a further analysis by the Central Laboratory. The food stuff fn question is such that mere delay is not likely to have prejudiced the petitioner. In the absence of any other material on record, this contention is not tenable. Again, there is no merit In the contention that the sample bottle which was produced was empty. There were three sample bottles and if the petitioner was really anxious to have the sample produced before the Court, he could have taken steps to obtain the one that was made over to his employee in the shop who had sold the food stuff.
6. Mr. Mohanty ultimately contended that the sentence of fine was too heavy and wanted that I should reduce It I find that the learned appellate judge has committed an illegality in setting aside the sentence of imprisonment for six months' rigorous imprisonment awarded by the trial court. By an amendment. Parliament provided the minimum punishment for the various offences under Section 16(1). The proviso under Sub-section (1) of Section 16 of the Act in some contingencies authorizes the court for adequate and special reasons to be mentioned In the judgment to 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 rupees one thousand. The cases where the proviso applies are Indicated in Clauses (i) and (ii) of the proviso. For offences which are not covered by the proviso, the minimum sentence provided in the section has to be awarded if there is a conviction and there is no discretion left in the court. In the present case, the minimum punishment indicated under Sub-section (1) of Section 16 had been awarded by the learned Magistrate. As such there was no scope for the. lower appellate court to reduce it further because, as conceded at the Bar, the proviso was pot attracted. While rejecting the claim of Mr. Mohanty that the sentence should be further reduced I do not propose to Issue a rule of enhancement at this belated stage. The lower appellate court should, however have been mindful about the provision in the statute while considering the question of sentence.
7. The revision accordingly fails and is dismissed.