P. Govinda Menon, J.
1. The petitioners (accused 1, 2 and 5) were tried by the District Magistrate, Alleppey for an offence under the Prevention of Food Adulteration Act (shortly stated the Act). The first accused was found guilty and convicted under Section 16(1)(a)(i) read with Section 7 of the Act and was sentenced to pay a fine of Rs. 300/- Accused 2 and 5 were convicted under Section 16 (1)(a)(ii) treating this as a second offence the second accused was sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-and the fifth accused the firm was sentenced to pay a fine of Rs. 2,000/- the minimum fine prescribed for a second offence
2. Pw. 1 the Food Inspector of Mannancherry Panchayat visited the shop of the accused on 24-3-64 and purchased 750 grams of dhall from the first accused, out of a stock of 11 3/4 kgs. exposed for sale in a gunny bag and paid the price and obtained the receipt Ex P 2. The dhall that was purchased was duly sampled and sent to the public analyst and his report Ex P-G showed that the sample was Kesari dhall, the sale of which was prohibited as being injurious to public health. A complaint was, therefore, filed against the fifth accused, being the partnership firm Kunju Mohammed and Co., and against accused 1 to 4 as the partners of the firm.
3. That they were partners is admitted. Ex. P-9 is the udampady forming the partnership and appointing the 2nd accused as the managing partner responsible for the conduct of the business and fixing the monthly remuneration at Rs. 50 but the second accused would contend that he had ceased to be the managing partner with effect from 15-3-64, on which date he had resigned and sent a notice and after that date first accused was in actual management Accused 3 and 4 stated that though they were partners they were not taking part in the management and did not know about the particular transaction and hence was not guilty of the offence charged. The first accused contended that it was not a voluntary sale and that the dhall from which Pw. 1 had earlier taken a sample had been kept separate in the antic and was not intended for sale and that Pw. 1 insisted on his selling a portion to him and it was therefore only a case of seizure and acquisition by the Food Inspector in exercise of the powers vested in him Learned District Magistrate acquitted accused 3 and 4 on the ground that they were not proved to be in charge of and responsible to the company for the conduct of the business of the company First accused was convicted as he was the person who actually sold the dhall. The second accused was convicted, because he was in charge of the business and the 5th accused being the company. Section 17 provides that where an offence is committed by a company every person who at the time the offence was committed was in charge of and responsible for the conduct of the business would be prosecuted along with the company. The courts below have discussed and considered, in detail, the question whether the case that the second accused had resigned is true or not and whether the case of the first accused that it was not a voluntary sale but only one of seizure is true and had come to the conclusion that the evidence of Pws. 1 to 3 could safely be accepted and that it was a case of voluntary sale. Learned District Magistrate also found that the case set up by the second accused that he had resigned and was not in management is not true
4. Being revision, learned counsel rightly did not attempt to canvass the correctness of the concurrent findings of fact. The only point that was argued was about the legality of the conviction of accused 2 and 5, as if il were a second offence. The contention of the learned counsel is that the offence committed in this case, namely the sale of Kesari dhall on 24-3-64 has been completed before the accused was convicted for the sale of Kesari dhall to Pw. 1 on 6-3-64 and therefore according to his submission this case cannot be treated in the eye of law as a second offence He would contend that under the scheme of Section 16 only that offence can be treated as second offence which has been committed by a person after he had been convicted by the court for an offence under the Act.
The courts below relied on the decision in Daya Ram v. State, 1950 All LJ 751, whore it has been held that the second offence need not have been committed after the conviction for file previous offence and that the words in Clauses (i) and (ji) do not take into consideration the date of conviction for the previous offence, so that the second or subsequent offence might have been committed before the conviction for the first or previous offence. The view taken in the case is based on the literal interpretation of the phraseology used in Clauses (1) and (ii) of Sub-section (1) of Section 16 as distinct from the language of Sub-section (2). It is true that the words used in Clauses (i) and (ii) are 'for the first offence and second offence', but in Sub-clause (2) of Section 16 what is stated is any person convicted of an offence under this Act. But looking to the entire scheme of the section which provides for the enhanced punishment for subsequent offence, we have to see whether such a strict conclusion would be appropriate and be in consonance with the object for which the provision has been made. The principle underlying this provision to award enhanced punishment is that the offender has not reformed himself even after his conviction and should therefore, be exposed to the enhanced penalty.
5. The Allahabad High Court in Chuttan v. State, AIR 1900 All 629, had occasion to consider the question of the applicability ofClause (ii) of Section 16(1) and it was stated that Clause (ii) would not be applicable unless Clause (i) had been applied once. i. e. there had been a previous conviction under the Act.
6. In a recent Bench Decision of the Rajasthan High Court in State v Badri, AIR 1965 Raj 152, this question came up for consideration and their Lordships expressed dissent from the earlier Allahabad decision and has after a detailed discussion, observed:
'We are of the opinion that in interpreting the law which provides the enhanced penalty the legal meaning of the phrases used therein should prevail over the grammatical construction thereof. We are of the opinion that the phrase 'second offence' should be construed as that offence which has been committed after the offender had been convicted for the first offence, and similar meaning should be given to 'the third and subsequent offences.' This meaning, in our opinion, shall be in consonance with the object for which this provision has been enacted in the law.'
7. In that case reference has been made to the decision in King v. Licensing Justice South Shields, (1911-2 KB 1). The section that their Lordships had to deal with in that case was Section 3 of the Licensing Act, 1872, which stated:
'Any person selling or exposing for sale any intoxicating liquor at a place where he is not licensed to sell the same shall be liable for a first offence to a penalty not exceeding (sic) 50, or to imprisonment for a term not exceeding one month; for the second offence, to a penalty not exceeding (sic) 100, or to imprisonment for a term not exceeding three months;and for the third and any subsequent offence to a penalty not exceeding (sic) 100, or to imprisonment for a term not exceeding six months. In addition to any other penalty imposed by this section any person convicted of a second or any subsequent offence under tbis section shall, if he be the holder of a licence, forfeits such a licence'
The question that came up for consideration in that case was whether under the circumstances the licensing justice should refuse to renew the licence of the petitioner and it was in that context that the following observations were made:
'No doubt the fact that there were two convictions is almost conclusive to show that one of those convictions must have been a second conviction, but that is not what the section says ..... we have to consider what is the true meaning of the words 'any person convicted of a second or any subsequent offence under this section shall, if he is the holder of a licence, forfeit such licence ..........It seems to me that it is quite impossible to give a reasonable construction to the various clauses of the section unless the words 'second offence' and 'third and any subsequent offence' are read as meaning an offence after a previous conviction or convictions, as the case may be, for an offence under the section. The enactment aims at a persistent breach of the law after a previous conviction. and though the section does not in terms say that the offence to be punished with the heavier penalty must be one committed after a previous conviction for a similar offence, it is not reasonable to say that where a person commits three offences under the section on the same day a different penalty at laches to each of these offences.'
8. I am in respectful agreement with the view taken in these cases and hold that the words 'second offence' under Section 16 should be construed as that offence which has been committed after the offender had been convicted for the first offence. Support for this view can be had in the observations of the Supreme Court in Jagdish Prasad v. State of U. P., (1965) 2 SC WR 692: (AIR 1966 SC 290), where it is stated that the words 'second offence' must mean any offence under the act committed by a person after his conviction earlier for any one of the offence punishable under the Act. Therefore, the conviction of accused 2 and 5 as if they had committed a second offence is not legally correct
9. While maintaining the conviction of the petitioners under Section 16 read with Section 7 of the Act, the sentence of imprisonment awarded to the second accused is set aside and the fine imposed on him is reduced to Rs. 250/-. In the case of the fifth accused the fine is reduced to Rs. 500/-, and in the case of the first accused the fine is reduced to Rs. 100/- In default of payment of fine, the first accused will undergo simple imprisonment for one month and the second accused will undergosimple imprisonment for 2 months. Excess tine, if paid, would be refunded.
The revision petition is partly allowed.