Y.V. CHANDRACHUD, J.
1. The appellants, Brahm Pal and Ram Sahay, were convicted by the learned Magistrate First Class, Delhi under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 on the charge that on December 17, 1966 they sold laddoos to which unpermitted colour was added. The learned Magistrate sentenced the appellants to imprisonment till the rising of the Court and to pay a fine of Rs 1000.
2. The appellants preferred an appeal to the Sessions Court against their conviction and sentence while the Municipal Corporation of Delhi, which had originally filed the complaint, filed a revision application for the enhancement of sentence. The learned Additional Sessions Judge, Delhi, dismissed both the proceedings.
3. The Municipal Corporation then filed an application under Section 439 of the Code of Criminal Procedure, in the High Court of Delhi asking that the sentence imposed on the appellants by the trial court should be enhanced. That prayer was granted by the High Court which enhanced the sentence of each of the appellants to six months' rigorous imprisonment and a fine of Rs 1000.
4. The appellants filed a petition in this Court, for leave to appeal against the judgment of the High Court. By an order dated December 18, 1974 (sic) this Court dismissed the petition of Ram Sahay. Leave, however, was given to the appellant Brahm Pal on the question of sentence only.
5. Mr Nuruddin Ahmed who appears on behalf of the appellant contends that the High Court was not justified in enhancing the sentence on the supposition that the trial court was under an obligation to impose the minimum sentence prescribed by Section 16 of the Act. It is not possible to accept this submission. Section 16 of the Act, provides, to the extent material, that if any person sells or distributes any article of food which is adulterated he shall be punishable with imprisonment for a term “which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees”. The relevant part of the proviso to Section 16(1) says that 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 if the offence of which the accused is found guilty falls under sub-clause (i) of clause (a) of the section and is with respect to an article of food which is adulterated under sub-clause (l) of clause (i) of Section 2 of the Act. It is patent from the proviso that the discretion permitted to the Court in the matter of sentence is available only in the cases mentioned in the proviso, one of which is that the offence must be “with respect to an article of food which is adulterated under sub-clause (l) of clause (i) of Section 2”. Section 2(i)(l) of the Act defines an “adulterated” article of food as one in respect of which the quality or purity is below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. In the instant case, the appellant was not charged with having sold an article of food of which the quality or purity fell below the prescribed standard or which contained constituents in excess of the prescribed limits of variability. The charge levelled against the appellant was in reference to Section 2(i)(j) of the Act under which an article of food can be said to be “adulterated” if any colouring matter other than prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article. Thus, the proviso can have no application and the offence committed by the appellant has to be visited with the minimum sentence prescribed by Section 16.
6. It is urged on behalf of the appellant that he is a railway employee and that he was sitting in the shop just to assist his father-in-law Ram Sahay who was sick. This has no bearing on the interpretation of Section 16 and if the appellant sold an article of food which is “adulterated” within the meaning of Section 2(i)(j), the learned Magistrate had no option save to impose the minimum sentence. But if these facts are true, the Administration may take them into account for commuting the sentence.
7. We, therefore, dismiss the appeal of Brahm Pal and confirm his sentence. He may surrender to his bail within four weeks from today.