Hardayal Hardy, C.J.
(1) Some interesting questions of law were raised by the respondent's counsel in this appeal against acquittal which was brought on special leave having been granted to the appellant under Section 417(3) Criminal Procedure Code. The appeal arises in respect of an offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. The respondent was convicted for having used un-permitted colour in coloured bundi of which a sample was purchased by the Food Inspector on 25-4-1966. He was sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 800.00. In default of payment of fine, it was directed that he shall under-go six month's simple imprisonment. The offence having taken place after the Prevention of Food Adulteration Act, 1954 was amended the minimum sentence of imprisonment which the magistrate could award, was six months' R.I. and thereforee the Municipal Corporation of Delhi filed a revision petition for enhancement of sentence. The revision petition came up before Shri M. L. Jain, Additional Sessions Judge, Delhi when it was pleaded on behalf of the respondent that under Section 439 criminal Procedure Code, he was entitled to show that he should have been acquitted. He thereforee prayed for dismissal of the revision petition on that ground.
(2) The Additional Sessions Judge took the view that in the report of the Public Analyst (Ex. PE) no data had been given in respect of the adulteration found by the Analyst. The report did not reveal the data on which the opinion was based. At least the name of the dye used should have been given. The learned Additional Sessions Judge also held that the Food Inspector had not associated any independent witness of the locality for witnessing the taking of sample by him from the shop of the respondent and had thus violated the manatory provisions of Section 10(7) of the Prevention of Food Adulteration Act, 1954. His jurisdiction had been invoked by the Municipal Corporation of Delhi under Sections 435 and 438 Criminal Procedure Code. If he wanted to exercise his jurisdiction he should have made a recommendation to the High Court under Section 438 Criminal Procedure Code and the High court could have exercised its jurisdiction under Section 439 Criminal Procedure Code. Learned Additional Sessions Judge also held that the respondent was entitled to acquittal and thereforee dismissed the revision petition.
(3) Against that order the Municipal Corporation of Delhi applied for special leave under Section 417(3) Criminal Procedure Code and also filed an appeal. The petition for special leave and the appeal came up before a Motion Bench on 30-11-1967 when a bailable warrant in the sum of Rs. 500.00 was issued against the respondent.
(4) On the appeal coming up for hearing before us, a preliminary objection has been raised by the learned counsel for the respondent on the ground that the special leave petition was barred bytime and thereforee no appeal against acquittal can be entertained. The order of the learned Additional Sessions Judge was made on 28-7-1967 while the petition for special leave was filed on 28-10-1967. An application for grant of certified copy was filed on 4-8-1967. The copy was ready for delivery on 17-8-1967. The time prescribed for filing a petition for special leave is 60 days whereas the time requisite for obtaining a certified copy of the order and the time prescribed for filing the special leave petition works out to 73 days. The special leave petition in the present case was however filed after 92 days. There was thus a delay of 19 days in the filing of the special leave petition. Relying upon a decision of the Supreme Court in Kaushalya Rani v. Gopal Singh : 4SCR982 Shri D. R. Sethi appearing for the respondent submitted that Section 5 of the Limitation Act does not apply to an application for Special leave under Section 417(3) of the Code of Criminal Procedure.
(5) Shri Sethi further submitted that although special leave was granted by the Motion Bench and a notice of the appeal was ordered to be issued, the ex-part order of this type has inherent in it that it is subject to all just exceptions and the respondent is entitled at the time of hearing or at an early stage to approach the Court to raise the question of limitation. Several authorities were cited by the learned counsel for the respondent and we have no doubt that he could raise the question of limitation at this stage.
(6) Mr. D. C. Mathur, counsel of the appellant however conceded that the appeal against acquittal was barred by time but there was nothing that prevented this Court from entertaining the appeal as a revision. Reliance was placed by the learned counsel on a decision of the Judicial Committee of the Privy Council in Chunbidya and others v. Emperor (AIR 1935 P. C. 35)(2) where it was said that when the High Court has before it on appeal a record of a criminal proceeding the condition precedent is performed and the High Court can then, though the record has only come to its knowledge, in the appellate proceeding, proceed to exercise its revisional jurisdiction if it chooses to do so.
(7) Shri D. R. Sethi took time to cite authorities to the contrary because in his submission the High Court had no such power in the case of an appeal against acquittal. When the appeal came up for hearing again on 3-3-1972 Shri D. R. Sethi agreed that the High Court had such power and thereforee proceeded to argue the case on the basis of a revision petition being before us.
(8) He raised two points. The first contention was that there was no sufficient data in the report of the Public Analyst to prove adulteration and that the name of the dye used by the respondent should have been given. The second contention was that it had been found by the Additional Sessions Judge that the Food Inspector did not associate with him any independent witness of the locality at the time when he was lifting the sample of the article of food, although some non-official persons were admittedly present on the occasion. There was thus a violation of the mandatory provision of Section 10(7) of the Prevention of Food Adulteration Act.
(9) On behalf of the Municipal Corporation of Delhi, its learned counsel submitted that an independent person had been associated but unfortunately he was not traceable when the time for giving evidence at the trial arrived. There was thereforee no violation of the provision of Section 10(7) of the Act. It was also contended on behalf of the Corporation that it was not the case of the respondent that the independent person associated by the Food Inspector was a non-existing person. According to Exhibit Pc, Ram Parkash Sharma was running a coal depot at 33/12 East Patel Nagar and since he was not traceable at the time of the trial, there was nothing that prevented the magistrate from accepting the testimony of the Food inspector Shri H. K. Bhonot and Shri Mohd Yusaf Ali Khan another Food Inspector.
(10) As regards the first contention urged by the respondent's counsel there can be no doubt that when the Public Analyst's report stated that the sample was adulterated with unpermitted colour, it was up to the respondent who knew what colour he had added and could thereforee easily say that the colour was the permitted one ; but he did not say so. He also did not make an application under Section 13(2) of the Act calling for a report of the Director, Central Food Laboratory. Counsel for the respondent even did not tell us as to what was the specific point on which the respondent wanted further information. The case thereforee appears to us to be governed by a decision of the Supreme Court in Ram Dayal v. Municipal Corporation of Delhi and another : 1970CriLJ515 .
(11) We are also not satisfied with the second contention of the respondent because in our view if the Food Inspector had taken steps to associate an independent person and of that there does not seem to be any doubt in the present case, the provisions of Section 10(7) could not be said to have been violated merely because at the stage of the trial the independent witness was not available.
(12) In this view of the matter, the order of the learned Additional Sessions Judge can in no case be sustained and the judgment of the trial court has to be restored. The question that arises for consideration is about the sentence. We have no doubt that in view of the provisions of Section 7 read with Section 16 of the Prevention of Food Adulteration Act, the Municipal Corporation was fully justified in asking for enhancement of the sentence and the only porper sentence that could be awarded to the respondent was six months' rigorous imprisonment. Unfortunately however the application for enhancement was dismissed by the Additional Sessions Judge. That order was made as far back as 28-7-1967. Almost 4j years have gone by since that decision was given. We are thereforee not prepared to enhance the sentence at this stage nor are we prepared to maintain the sentence awarded by the learned Magistrate because it seems to us that a sentence of imprisonment till the rising of the court is no sentence in the eye of law in a case like this.
(13) Counsel for the respondent submits that the respondent was 21 years of age when the offence was committed. His present age no doubt is between 25 and 26 years, but there is nothing that prevents us from extending to him the benefit of S. 4(1), Provation of Offenders Act. It is ordered accordingly. The respondent is thereforee directed to enter into a bond with one surety in the sum of Rs. 2,000.00, to appear and receive sentence when called upon during a period of two years from the date of his order and in the mean time, he shall keep the peace and be of good behavior. The bond should be executed within one month from today before the Chief Judicial Magistrate.