1. This appeal raises a question of construction of sub-s. (1) of s. 16 ofthe Prevention of Food Adulteration Act, 1954. The sub-section in providing forpunishment for breaches of the Act states, 'for a second offence, withimprisonment for a term which may extend to two years and with fine'. Inrespect of the first offence it provides for a smaller sentence. The questionis whether the appellant was liable to punishment for a second offence. Theorder of this Court granting leave to appeal confined it only to that question.
2. It appears that on an earlier occasion the appellant kept foodstuff forsale in a container without covering it as required by sub-r. (3) of r. 49 ofthe rules made under the Act and was thereupon convicted under s. 16 and sentencedto a fine of Rs. 40/- as for a first offence. This time he has been convictedfor selling foodstuff which had been coloured with a dye the use of which wasprohibited by r. 28 of the same rules.
3. Learned counsel for the appellant stated that the present was not asecond offence. If we have understood his arguments correctly, and we confessto some difficulty in understanding them, he said that the second offencecontemplated is an offence constituted by the same kind or type of act forwhich he had been convicted under the Act on an earlier occasion. According tohim, if the present conviction was for keeping foodstuff intended for sale in acontainer not covered as required by sub-r. (3) of r. 49, then only it wouldhave been for a second offence, but as the conviction in the present case wasfor selling foodstuff coloured with prohibited dye, it was not for a secondoffence.
4. This contention does not seem to us to be acceptable. The real questionis, What do the words 'second offence' mean Learned counsel for the appellantreferred us to Webster's New World Dictionary where one of the meanings of theword 'second' has been stated to be 'of the same kind as another'. That meaningcannot be attributed to that word in the sub-section. It increases thepenalties as the offences are 'first', 'second' or 'third'. Thus it states,'for a third and subsequent offences, with imprisonment for a term whichmay extend to four years and with fine'. The word 'subsequent' makes itclear that the words 'first', 'second' and 'third' were intended to indicatethings happening one after another in point of time. Sub-section (2) of s. 16also leads to the same conclusion. It says, 'If any person convicted of anoffence under this Act commits a like offence afterwards', the subsequentconviction and the penalty imposed with his name and address may be publishedin a newspaper at his expense. The word 'afterwards' clearlyindicates that the statute was contemplating offences committed subsequentlyand was indicating a sequence of time. In the dictionary to which learnedcounsel referred, the meaning on which he relies is illustrated by thefollowing sentence, 'There has been no second Shakespeare'. It seemsplain to us that the meaning conveyed by the word 'second' in this sentencecannot be attributed to the word 'second' as used in the sub-section.
5. Then as regards the word 'offence' in the expression'second offence', we find no justification for confining it to anoffence constituted by the same type or king of conduct as the previousoffence. The sub-section does not say 'second offence' of the sametype; the latter words are not there. The object of the sub-section clearly isto prevent repetition of offences. That is why for the offence subsequentlycommitted a heavier sentence is provided. We cannot imagine what object wouldhave been served by seeking to stop the repetition of the same type of conductonly. The Act no doubt intends to prevent the doing of various acts bypunishing them. That object is better served by imposing a heavier penalty whena person repeats any of such offensive acts. The gravamen of the charge of asecond offence is the repetition of any offence under the Act and not therepetition of one of the various types of offences mentioned in it. Anyinterpretation which would not carry out the object of the Act would beunnatural. We, therefore, think that the words 'second offence' meanany offence under the Act committed by a person after his conviction earlierfor any one of the offences punishable under the Act.
6. It was said that it would be strange if the Act intended to impose aheavier punishment for a second offence which might be of a trivial naturewhile the first offence which might have been of a serious nature entailed alighter punishment. This contention is fallacious. There is no foundation inthe Act for distinguishing between trivial and serious offences, for the Actprovides the same punishment for each offence under it. If the punishment isthe same, it would follow that the statute considered them to be of the sameseriousness. The weakness of this argument will further appear if we consider acase where the first offence was of what is called a trivial nature and thesecond, of a serious nature though constituted by different acts. It would beequally strange if the Act in such a case contemplated the same punishment forthe sub-sequent and serious offence as would be the case if the subsequentoffence was not a 'second offence'. This contention lends no supportto the interpretation suggested by learned counsel for the appellant.
7. Learned counsel then said that the word 'offence' has to beunderstood as defined in s. 2(38) of the General Clauses Act, 1897, andtherefore means any act or omission made punishable by any law for the timebeing in force. If we substitute this definition for the word'offence' in the provision now under consideration, it will mean anact made punishable by the law. That law must be the present Act. This does notassist learned counsel's contention at all; it really goes against him.
8. The word 'offence' on doubt, refers to an offence under theAct. It cannot possibly mean any offence under any other Act. This view hasinvariably been taken in all the cases which have been cited to us : see CityBoard, Saharanpur v. Abdul Wahid : AIR1959All695 and Chuttan v. State : AIR1960All629 . In In re Authers L.R(1889).Q.B.D. 345, itwas said, 'where the legislature passes a statute and imposes a penalty of501. for a first offence, it must mean, in the absence of express words to thecontrary, that the conviction for the first offence must be under that Act, andthe second conviction under the same Act; if it were otherwise, it would beidle to introduce the warning of a lower penalty for the first offence, and toimpose a higher penalty for the second.' This case supports ourinterpretation of the words 'second offence' based on the object ofthe Act.
9. Learned counsel for the appellant no doubt agrees that the second offencemust refer to an offence under the Act but he says that since it would amountto adding the words 'under the Act', it would justify the addition offurther words implying that the second offence had to be of the same type asthe first. This is a wholly unfounded contention. The offence contemplated inthe expression 'second offence' has to be under the Act because thatarises from the object of the Act and, as we shall later show, from thenecessary implication of the structure of the sub-section. There is no suchreason to confine the second offence to an offence of the same type.
10. We have so far been dealing only with that portion of sub-s. (1) of s.16 which concerns the penalty for the second offence. Considering thesub-section as a whole we find that it supports the interpretation of theexpression 'second offence' which has appealed to us. It says that ifany person does any of the acts mentioned in cls. (a) to (g) in it, he shall bepunishable for the first offence with a certain penalty, for the second offencewith a higher penalty and for the third a still higher penalty. It is clearthat the acts or omissions mentioned in the different clauses constituteoffences for which the penalties are provided. From this structure of thesub-section the implication necessarily arises that the penalties were imposedfor offences under the Act only. Now clause(a) deals with a person importing,manufacturing for sale, storing, selling, or distributing any article of foodin contravention of the provisions of the Act or of any rule made thereunder.This clause contemplates the breaches of various provisions of the Act and therules, which are numerous. It covers various types of conduct, act or omission,each of which is punishable and each of which is, therefore, an offence.Turning next to that part of the sub-section which prescribes penalties, wefind it provides increasing degrees of punishment for the second offence andthe third and subsequent offences. It follows that an offence contemplated inthis part of the statute - and which it we are now directly concerned - wouldbe constituted by any of the acts which would come within clause(a) andlikewise within all the other clauses following it. We have pointed out thatthe acts and omissions contemplated there are of diverse kinds. The words'second offence' must, therefore, mean any act which is an offenceunder any of the clauses in the sub-section which has been done later in pointof time after a conviction for an offence under the Act, no matter whether theacts or omissions constituting the two offences are of the same type or not.The appellant must, therefore, be held to have committed the second offencewithin the meaning of the sub-section on the present occasion and was liable tohave the heavier punishment awarded to him. The sentence awarding suchpunishment is unexceptionable.
11. The appeal fails and it is hereby dismissed.
12. Appeal dismissed.