B.K. Behera, J.
1. The petitioner Tarini Sahu personally and on behalf of the firm Krishna Chandra Sahu and Sons stands convicted Under Section 16(1)(ii) of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and sentenced thereunder to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/-and in default of payment thereof, to undergo rigorous imprisonment for a further period of one month for manufacturing 'Bura' (Nabata) without a food licence required to be obtainted under Rule 50 of the Rules framed under the Act which was detected by the Food Inspector (P.W. 1) of the Berhampur Municipality in the presence of P.W. 2, an employee of the said Municipality, on 27-4-1978 at Berhampur. The article was sent for examination by the Public Analyst and it conformed to the standards prescribed under the Rules and thus the article of food was not adulterated within the meaning of the Act. The petitioner was prosecuted only for manufacturing the said article of food without obtaining a licence, the previous licence in the name of Krishna Chandra Sahu having expired on 31-12-1977.
2. Mr. Pasayat for the petitioners has not assailed the order of conviction. He has submitted that after the expiry of the licence in the name of his deceased father on 31-12-1977. steps had been taken by the petitioner Tarini Sahu for renewal of the licence in the name of the firm Krishna Chandra Sahu and Sons, but he was given to understand that he had to deposit the licence fee in the name of the previous licensee Krishna Chandra Sahu which he did in September, 1978. It has been submitted that as the case against the petitioner can come under the purview of the second Proviso to Section 16(1).of the Act and the Court may, for any adequate and special reasons to be mentioned in the judgment, impose the sentence of imprisonment for a term which may extend to three months and with fine which may extend to Rs. 500/-, the peittioner's substantive term of imprisonment may be reduced to the period of one day suffer- ed by him after he surrendered and before he was released on bail in pursuance of the order of this Court and he may be let off with an appropriate fine amount. I have heard the learned Additional Standing Counsel for the State and Mr. R. C. Misra for the Ber-hampur Municipality who have left the question of sentence to the discretion of this Court. Mr. Misra has, however, invited my attention to the observations made by the Supreme Court in the case of Kisan Trimbak Kothula v. State of Maharashtra: : 2SCR102 to the effect that to earn the eligibility to fall under the proviso to Section 16(1). the person concerned must establish not only that his case falls positively under the offences specified in the said proviso, but negatively that the facts of the case do not attract any of the non-proviso offences in Section 16(1) of the Act,
3. Section 16(1) of the Act reads: 'Subject to the provisions of subsection (1-A, if any person -
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food -
(i) which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in Sub-clause (i, in contravention of any of the provisions of this act oi' of any rule made thereunder; or
(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sale or stores, sells or distributes, any adulterant which is not injurious to health: or
(c) prevents a food inspector from taking a sample as authorised by this Act; or
(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or
(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or
(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or
(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him.
he 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:
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; or
(ii) if the offence is under Clause (ii) of Clause (a, but not being an offence with respect to the contravention of any rule made under Clause (a) or Clause (g) of Sub-section (IA) of Section 23 or under Clause (b) of Sub-section (2) of Section 24, the court may, for any adequate and special reasons to be men1 tioned 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:Provided further that if the offence is under Sub-clause (ii) of Clause (a) and is with respect to the contravention of any rule made under Clause (a) or Clause (g) of Sub-section (IA) of Section 23 or under Clause (b) of subsection (2) of Section 24, the court mayt for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months with fine which may extend to five hundred rupees.
As provided in Section 16(1), the offence in question could come within the purview of Sub-section (1)(a)(ii) of the Act. As. provided in Section 16(1) of the Act, for his conviction, an accused person, in addition to the penalty to which he may be liable under the provisions of Section 6 of the Act, be punishable with imprisonment for a term which shall not be less than six months and with fine which shall not be less than one thousand rupees. There are, however, two provisos and as rightly submitted on behalf of the petitioners, the instant case could come under the second Proviso as the allegation against the petitioner was that he had been manufacturing the food article without a licence obtained therefor and this would attract Clause (g) of Sub-section (1A) of Section 23 of the Act providing as follows:
Section 23(1A). In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
XX XX XX(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health; XX XX XX
Rule 50 of the Rules framed under the Act coming under Part IX 'Conditions For Sale and Licence' provides under the heading 'Conditions for licence' that no person shall manufacture, sell, stock, distribute or exhibit for sale any of the articles of food enumerated therein except under a licence. It is not disputed at the Bar that the article in question is covered by Rule 50. Undoubtedly, therefore, the act of a person dealing in article of food without a licence would not be covered by the first Proviso but would, doubtless come within the purview of the second Proviso, and therefore, the court can, for adequate and special reasons, impose a sentence of imprisonment for a term which may extend to three months and with a fine which may extend to five hundred rupees without imposing the minimum sentences provided in Section 16(1) of the Act which are ordinarily to be imposed. The' learned Chief Judicial Magistrate trying the case and the learned. Sessions Judge hearing the appeal did not take due notice of this provision while considering the question of the imposition of sentences by observing that after the Amendment Act of 1976, a minimum of three months' jm-prisonment and a minimum of fine of Rs. 500/- had to be imposed, although it was the second Proviso and not the first Proviso which would govern this case.
4. In this connection, the learned Counsel for the petitioner has invited my attention to a decision of the Allahabad High Court in the case of Dhukan Lai v. State, 1981 FAJ 589:1981 Cri LJ 1078) in which the same question was involved and it was held that as the article of food which was being sold by the applicant was neither adulterated nor mis-branded and as its sale had not been prohibited under the provisions of the Act or the Rules framed thereunder, it clearly was an article of food other than referred to in Sub-clause (i) of Clause (a) of Section 16(1) of the Act. It was further held that as the article in question was being sold in contravention of Rules 49 and 50, the case was squarely covered by Sub-clause (ii) of Clause (a) of Section 16(1) of the Act. Dealing with the question of sentences. H. N. Seth, J. observed and held as follows (at p. 1082 of Cri LJ):
As in the present case the offences committed by the applicant are of the type contemplated by Sub-clause (ii) of Clause (a) of Section 16(1) of the Act and as they relate to contravention of rules made under Clause (g) of Sub-section (1-A) of Section 23, they squarely fjall under the further proviso to Section 16 which lays down that for any adequate and special reasons to be mentioned in the judgment a sentence of imprisonment for a term which may extend to three months' rigorous imprisonment and with a fine which may extend to Rs. 500/- may be imposed.
XX XX XXIn the circumstances it was open to the courts below to, in respect of offences committed by the applicant, for contravening the provisions of Rules 49 and 50 of the Prevention of Food Adulteration Rules have sentenced him to imprisonment for a period less than three months and to a fine less than Rs. 5,00/-.' No decision of the Supreme Court or of this Court on this question has been cited before me. For the reasons earlier recorded by me, I would, with respect, adopt the views of H. N. Seth, J. Subject to the availability of special and adequate grounds to apply the second Proviso, the petitioner may be visited with lesser sentences as provided therein.
5. As has been submitted by the learned Counsel for the petitioner, there was a food licence in the name of the father of the petitioner which had expired on 31-12-1977. The case of the petitioner was that he had. before the visit of the Food Inspector (P.W. 1) to his place of business in April, 1978, taken steps for the renewal of the licence in the name of the firm, but he was given to understand that he would have to deposit the fee in the name of the previous licensee. This was the stater ment of the petitioner before the trial court and suggestion to this effect had been made to P.W. 1 during his cross-examination. This plea could not, therefore, be taken to be the product of an afterthought. The article in question was found to conform to standards. Thus the petitioner had not been dealing in food article which was adulterated. As can be seen from the sentencing schemes in Section 16(1) of the act, the legislature has prescribed stricter sentences for a person selling adulterated food with or without a licence than for a person 'selling unadulterated food without a licence. Regard being had to the aforesaid facts and circumstances and the absence of materials indicating that the petitioner had previously ibeen convicted of such offences, it would, in my view, be just and reasonable to apply the second Proviso and to reduce the period of imprisonment; passed against the petitioner to the period already undergone while maintaining the sentence of fine of Rs, 500/r imposed by the trial court and affirmed by the appellate court.
6. In the result, the order of conviction passed against the petitioner is maintained. The substantive term of imprisonment passed against him is reduced to the period undergone. The sentence passed against him to pay a fine of Rs. 500/- is maintained. In default of payment thereof, the petitioner is to suffer simple imprisonment for a period of 15 days.
7. Mr. R. C. Misra for the Berhanir pur Municipality has submitted that as provided in Rule 4(2) of the Orissa Prevention of Food Adulteration Rules, 1959, a local authority shall incur, out of its own funds, all expenses for enforcement of the Act within its jurisdiction and shall be paid 50% of the fines re-aUsed under the Act within its jurisdic- tion. I would accordingly direct that out of the fine amount of Rs. 500/- if and when realised, the Berhampur Municipality shall be paid Rs. 250/-under the aforesaid Rule.