M.P. Thakkar, J.
1. The learned Judicial Magistrate, First Class, Bhavnagar appears to hold the view that it is easier for a camel to pass through the eye of a needle than for an owner of an oil mill who sells adulterated oil in packed tins and pleads guilty to it to enter the gates of a jail. This view has been taken by the learned Magistrate notwithstanding the fact that barely three months back the same mill-owner was charged for a similar offence under the relevant section of the Prevention of Food Adulteration Act, 1954 (referred to as the 'P.F.A. Act' hereafter) to which he pleaded guilty and had been sentenced to pay a fine of Rs. 180/-. In the background of these facts a notice was issued by the Court in exercise of powers under Section 439 of the Code of Criminal Procedure to opponents accused Nos. 1 and 2 to show cause why the sentence of fine of Rs. 1000/ - should not enhanced.
2. On July 29, 1970 at about 10-00 a.m. Saiyed Mohmad Allarakh, Food Inspector of Bhavnagar Municipality, purchased a sample of groundnut oil after observing the necessary formalities. Ex. 22, the panchnama made at the time of the seizure shows that at the time of the raid there were about 98 tins of oil nearby the two storage tanks. In one storage tank there was ground-nut oil stock of about 50 tins. From the 48 packed and sealed tins a sample of 400 grams was taken. This sample was forwarded to the Public Analyst at the Public Health Laboratory Bhuj-Kutch. The analysis made by him disclosed that the ground-nut oil contained in the sample bottle did not conform to the specified standards in two respects. It further disclosed that non-edible oil, namely, castor oil was found present in the sample. Thereupon the opponents along with four other persons were prosecuted for offences punishable under Section 7(i)(ii) of the P.F.A. Act. Shri H.C. Sheth, Judicial Magistrate, First Class Bhavnagar, by his judgment and order dated September 15/1971 convicted the opponents-accused Nos. 1 and 2 for the offences with which they were charged and sentenced each of them to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/-. The opponents appealed to the Sessions Court. The learned Sessions Judge, Bhavnagar, came to the conclusion that the sanction for the prosecution on the basis of which the prosecution was lodged was defective. He accordingly allowed the appeal and acquitted the opponents. The Municipality of Bhavnagar approached the High Court by way of Criminal Appeal No. 182/72 and called into question the order of acquittal rendered by the learned Sessions Judge. The matter came up for hearing before a Division Bench of this High Court on July 10, 1973. Inter alia it was argued that the sanction to prosecute was granted by Shri Thakorebhai acting in his capacity as in-charge Health Officer and that accordingly the sanction was invalid. The Division Bench negatived this contention in terms upon taking the view that Section 20(1) of the P.F.A. Act authorised a local authority to sanction the prosecution and having regard to the provisions contained in the Gujarat Prevention of Food Adulteration Rules, 1961, referred to as the 'Gujarat Rules', a person empowered to carry out the duties of a Health Officer had the competence to grant sanction in view of Rule 4 read with Rule 2(c). Reliance was placed on the definition of 'Health Officer' contained in Rule 2(c). In this connection at the end of the discussion it has been observed by the High Court as under:
it is found from the evidence of No. 2 Thakorebhai that, as In-charge Health Officer, he is performing the duties of a Health Officer. If that be so, he would be an officer who is empowered to carry out the duties of a Health Officer as contemplated by Rule 2(c) of the Rules, and in that case, be would be Health Officer as contemplated by (hat rule. Under these circumstances, the view of the learned Sessions Judge that, In-charge Health Officer cannot be considered to be a Health Officer under the Rules, cannot be accepted.
The view taken by the learned Sessions Judge was thus in terms reversed, it, however, appears that it was argued by counsel for the opponents that there was no material even to show that the said, Thakorbhai was appointed to discharge the duties of a Health Officer. This argument was not advanced in the trial Court. The High Court observed in the judgment that the contention was specifically raised for the first time before the Division Bench deciding the appeal. For the sake of preciseness the relevant passage from the judgment may be quoted:
In the present case, however, as observed above, there is no satisfactory evidence on record to show that, Thakorebhai was in fact appointed as Incharge Health Officer. Under these circumstances, it is difficult to say at this stage, that Sanction to prosecute granted by him is valid or otherwise. In this connection, we may clarify that, the contention that, Thakorebhai was not in fact appointed as Incharge Health Officer was not raised in the trial court. The above contention is specifically raised for the first time in this Court. Looking to the peculiar circumstances of the case we feel that, it would be in the interest of justice to give the prosecution a proper opportunity to adduce evidence on the above point.
It was in these circumstances that the High Court set aside the order of acquittal but instead of passing an order on merits directed a re-trial. The result was that the opponents were retried by the Judicial Magistrate, First Class, Bhavnager. Further evidence of Food Inspector Saiyed Mohmad Allankh and as regards resolution appointing Thakorbhai Vashi to discharge the duties of health officer was recorded. The resolution passed by the Municipality was produced at Ex. 35. And the memorandum relating to the taking over of charge by Shri Vashi as Health Officer was produced at Ex. 36. After recording evidence the charge was framed on December 18, 1973. Thereafter the opponents were called upon to enter their plea. The opponents on the same day i.e. 19-12-73 pleaded guilty to the charge. For the purposes of the record the questions put by the Court to opponent No. 1 and the answers given by him may be reproduced in extenso:
What have you to state that on 24-7-70, you accused No. 1 is the owner of Minakshi Oil Mill and accused No. 2 is your servant and the sample of Ground-Nut Oil was recovered from you according to law and it was found adulterated.
A. I plead guilty.
Q. The charge under Section 16(1)(A)(i) of the Prevention of Food Adulteration Act is framed, read over and explained to you. What is your plea?
A. I plead guilty.
Opponent No. 2 also pleaded guilty in the same manner. The learned trial Magistrate accepted the plea of guilty and convicted the opponents accused Nos. 1 and 2 for an offence under Section 16(1)(a)(i) of the P.F.A. Act. In regard to sentence-the learned Magistrate imposed a sentence of imprisonment till rising of the Court and a fine of Rs. 1000/- on each of the opponents-accused. And this token sentence was imposed notwithstanding the fact that the prosecution had placed on record a certified copy of the judgment rendered by the then Judicial Magistrate, First Class, Bhavnagar (Shri P.L. Kamdar) who had about three months back found opponent No. 1 Navalkishore, the owner of the mill, guilty of the same offence in connection with the adulteration of groundnut oil, and that he had pleaded guilty to the charge and had been sentenced to under go simple imprisonment for one day and to pay a fine of Rs. 180/- on April 16, 1970. In that case also the groundnut oil was found not to conform to the requisite standard and also found to contain inedible oil, namely, castor oil. The offence resulting in the present petition took place on July 29, 1970 i.e. within about 100 days of Mr. Kamdar awarding, him a similar token sentence of mere fine besides imprisonment till rising of Court on his plea of guilty. The reasoning which commended itself to the learned trial Magistrate may be gleaned from the following passage from his judgment:
Now let us consider about the sentence. The case has a chequered history. The accused person was sentenced to R.I. for six months and pay a fine of Rs. 1000/-I.D.B.I. No. 1 for one month. Aggrieved by the order of conviction and sentence, the appeal No. 70 of 71 was filed in which the accused persons were acquitted. The acquittal appeal No. 182 of 72 was filed in the High Court of Gujarat. The order of acquittal in respect of respondent-accused No. 1 Navalkishor and respondent-accused No. 2 Ghanshambhai is set aside and it is directed that they may be retried by the Judicial Magistrate, First Class, concerned in light of what is stated above. As the accused persons plead guilty the contention raised in the appeal No. 82 of 1972 need not be determined. Shri J.M. Vadodaria, L. A for complainant has urged that the order of conviction must be published in the newspaper at the expense of the accused as he is prosecuted before. Shri D.O. Vyas the learned advocate for the accused person urges that complainant has not thought fit to take that ground In the complaint and hence the said sentence may not be passed Shri Vadodaria further urges that the order passed before may be maintained. Now the case has passed to various vicissitudes and the accused persons are passed from the conviction to acquittal and will not be retried. This mental pressure is sufficient and further imprisonment may not be awarded in special circumstances of this case. Hence S.I. till the rising of the Court and a fine of Rs. 1000/- will meet the ends of justice. 1 pass the following order.
3. The opponents were served with a notice in exercise of powers under Section 439 of the Code of Criminal Procedure to show cause why the sentence imposed by the learned trial Magistrate should not be enhanced. Mr. D. 0. Vyas has appeared in response to the notice and has urged that this High Court should not disturb the sentence imposed by the learned trial Magistrate in exercise of its revisional powers.
4. So far as the case of opponent No. 2 is concerned, he is a poorly paid employee of opponent accused No. 1 Navalkishore, the owner of the mill. It is possible to take the view that he may not be aware of the adulteration. It is also possible to take the view that at any rate there is nothing to show that he consciously helped his employer in adulteration. Regard must be had to the fact that he himself did not stand to gain by adulteration. There is also a distinguishing feature, namely, that in his case there was no previous conviction. Under the circumstances, I do not consider this to be a fit case for enhancing the sentence in so far as opponent accused No. 2 Ghashyam Babubhai is concerned. It is not to be understood that in my opinion it is right to take an indulgent view if an employe consciously and actively abets his employer. In fact one would consider that it is a part of his duty to expose his employer. But having regard to the peculiar facts and circumstances of this case and the aforesaid considerations I do not consider it worthwhile to enhance the sentence imposed on him in exercise of the revisional powers.
5. We must now turn to the case of opponent-accused No. 1 Navalkishore Damoder, the owner of the oil Mill. So far as his case is concerned, it is my considered opinion that the sentence imposed by the learned trial Magistrate is unduly lenient and grossly inadequate having regard to the facts and circumstances of the case. The learned trial Magistrate has not taken into account the circumstance that the offence was committed by the mill owner within about 31/ 2 months of obtaining immunity from a sentence of jail by payment of a trivial fine of Rs. 180/- on a plea of guilty. The certified copy of the judgment in Criminal Case No. 2620/70 disclosing this circumstance is recorded at Ex. 41. The learned trial Magistrate has exhibited total unawareness about this circumstance. Besides, in my opinion a sentence of imprisonment till rising of the Court and of token fine is self-defeating in prosecutions arising out of Prevention of Food Adulteration Act, Essential Commodities Act and Customs Act etc. where Courts are seized of anti-social crimes of food adulteration, hoarding, profiteering, smuggling, tax-evasion, and similar offences. The sentence of imprisonment till the rising of the Court (it is my painful duty to frankly say) is an eye-wash. It is illusory and a fraud on the concept of imprisonment. The accused comfortablysits in the Court-room and usually he does not even wait till the rising of the Court either. He never sees the gates of jail. He never experiences the discomfort of jail life. Nor does he suffer the indignity or social stigma attached to jail-going which operates as a deterrent to himself and to those others who are similarly inclined. Neither their self-esteem, nor the esteem or estimation of society for them in lowered. It will not be surprising if they themselves scoff and laugh at the illusory sentence and the society also mocks at it. Does it subserve any conceivable penological purpose? None. It pleases neither the deferent, nor the reformative, nor the retributive platform. This is equally true (in fact more true) of a sentence of fine (still more true when fine imposed is atom-sized as in the present case). A monetary sentence serves no purpose unless the offender owns considerable properties, and the sentence is one of confiscation of all his properties. A monetary fine of small amount is more likely to be treated as an incidental expenditure incurred for the purpose of earning profit (it will not be surprising if it is so claimed by way of deduction in the income-tax return). Or it may be treated as a fee for a licence to flout the Legislature and brazenly break the law. A businessman to whom everything else is subordinate to the ultimate goal of profit will weigh the pros and coos and he if an make more money by infringing the law (and by paying a small fine for the infringement) than by honouring it, is bound to opt for the former course. If his balance-sheet will present a gladder sight thereby, he would be committing heresy and disowning his true God (money) by being law-abiding rather than being a law breaker (which brings greater rewards). To impose a sentence of fine is, therefore, tantamount to patting him on the back and virtually inviting him, abetting him, to commit the offence. There is also another dimension. It is a part of the function of the Court to create an ethical climate by its decisions. These decisions mould the public opinion and create an appropriate ecology. What the Courts approve and disapprove, what the Courts view with indignation, and what with indulgence, shapes the contours of public opinion and public mores. If we are seriously and sincerely striving for a just socio-economic order, and an egalitarian society, can we look upon such modes of adding to one's wealth and of widening and deepening inequality with indulgence? Should it be made easier to earn money by adulteration, hoarding, profiteering, tax-evasion and smuggling when it is difficult enough for an honest citizen to earn even his butterless toast by honest labour even by slave-driving oneself? To take an indulgent view and to shake and falter or shiver in imposing a substantial sentence of imprisonment would amount to doing no less than that. The offenders, who play with the health and economy of the society, would then make bold and take courage in both hands for the risk of paying monetary fine is no risk to them if in the long run they can make greater profits by indulging in these activities. They must be made to realise that the moving finger writes and having written moves on. And that the message is: 'Thy days are numbered'. It is difficult to comprehend why the Courts should hesitate in imposing sentence of imprisonment even though the Legislature has proclaimed its will by prescribing a minimum sentence of six months. True, a proviso has been enacted, and a discretion has been conferred on Courts. That surely does not mean that whenever the proviso is attracted the Courts must always lean in favour of imposing a lesser sentence. The question must also in the same breath be asked why the maximum sentence should not be imposed if the question is asked why less than the minimum sentence should not be imposed. This very case provides an illustration of the immense damage the Courts can do by imposing an illusory sentence of one day's rigorous imprisonment and a token sentence of fine. Within about 100 days of purchasing immunity by paying the atom-sized fine of Rs. 180/- the opponent No. 1 has committed the same offence. The sentence must, under the circumstances, be sufficiently deterrent to the offender as also to those similarly minded as him. While the purpose of the sentencing policy is not to terrorize unwary persons, it certainly is to strike terror in the evil-eyed avaricious offenders to ensure that it has its desired deterrent effect. Unless it is brought home to the offenders that the Courts take an extremely serious view, all those who play with the health and well-being of the people and with the economy of the nation by indulging in hoarding, profiteering, black-marketing, smuggling and tax-evasion will be tempted to commit and recommit these offences. And these offences will increase rather than decrease. In that event, the common man may be excused if he in a common sense manner believes that the lenient sentencing policy virtually amounts to abetment of the offence. There is a real danger that the common man may convince himself that the adulterators, smugglers, tax-evaders, hoarders, and profiteers are treated by Courts as blue-eyed boys rather than as the real enemies of the people. And a time may come when notwithstanding the provisions relating to contempt of Court the common man will start voicing his disrespect for the judicial machinery. There is, therefore, 'anti-reason' to take a lenient view. In the present case the view taken is on the face of it extremely lenient and the sentence imposed is grossly inadequate. A sentence of fine as observed earlier can have same Cleaning only provided the sentence imposed is one of confiscation of the property of the offender. It can have no meaning when it bears no relation with the profits that the offender can earn by taking a small risk by paying a fine by entering a plea of guilty. The fregunency with which the plea of guilty is made in such cases and is visited with the deceptive sentence of alom-sized monetary fines makes one seriously doubt whether such cases should be tried by the subordinate Judiciary at all. It requires to be considered by the Legislature whether the jurisdiction to try such offences should not be exclusively vesting the Sessions Court. It also requires to be considered whether the relevant legislation should not prescribe a minimum sentence with the rider that if a sentence lower than the minimum is sought to be imposed, a reference must be made to the High Court seeking its prior approval. These comments hold good in cases arising out of Prevention of food Adulteration Act, Essential Commodities Act, Customs Act and in tax-evasion matters and foreign exchange violation matters. (This suggestion requires to be placed before the Law Department and the Law Commission to whom a copy of this judgment may be forwarded).
6. That the sentence is lenient and inadequate is, therefore, abundantly clear. It is, however, argued by the Learned Counsel for the opponent-accused No 1 that having regard to the circumstance that this proceeding has had a checkered career in the sense that there was an order of conviction and sentence of six months initially which was set aside by the Sessions Court and which in its turn was set aside by the High Court, a lenient view should be taken. Now, initially, there was a conviction and opponent No. 1 appealed. The time taken in the appeal cannot, therefore, be taken into account for it is neither the fault of the prosecution nor of the Court machinery. In the Sessions Court he argued a new point and succeeded on the technical plea of defect in sanction. The High Court reversed it. All this is inevitable as appeals are provided by the code and of necessity the appeals take some time before they reach bearing. Reliance is placed on an observation made by Divan J., as he then was, in Bhavnagar Municipality v. Navnitlal Dipch and Ors. 12 G.L.R. 817. In that case Divan J. has taken the same view, as I am taking with regard to the necessity to make the sentence deterrent. He has observed that too lenient a view should not be taken and that unless a deterrent sentence is imposed on those who deal in adulterated foodstuffs and yet try to passoff as respectable members of the society, are sent to prison and made to realise that this type of crime does not pay, society will suffer. This decision, therefore, reinforces the view that I am taking rather then supports the view canvassed by counsel for the opponent-accused No. 1, Counsel has, however, relied on the following passage from the aforesaid judgment:
But for the fact that the learned Magistrate has passed the order in the month of February 1970 and I am called upon to enhance the sentence in the month of November 1970, I would have certainly enhanced the sentence of imprisonment which was for one day's simple imprisonment.
I do not read in the observation made by Divan J. (as he then was) the proposition that if there is some time-lag between the date of the sentence by the trial Magistrate and the date of which the sentence is sought to be enhanced, the revisional powers under Section 439 of the Code of Criminal Procedure should not be exercised regardless of whether the sentence is too lenient under regardless of whether it is grossly inadequate. No such limitations are imposed by Section 439 of the Code of Criminal Procedure. By its very nature a legal proceeding consumes some time and one cannot always expect an enhancement notice to be heard within a couple of days or a couple of months of the date of the original sentence. It will depend upon when the inadequacy of the sentence was brought to the notice of the High Court and when the machinery of the administrative side of the High. Court was able to place the matter for final hearing before the Court. The notice has to be served on the opponent and the matter has to be made ready and then the matter has to a wait its turn in the queue. All these are inevitable steps which have to be taken before a matter can come up for final hearing. Therefore, if this were considered to be a determinative circumstance, the powers under Section 439 can never be exercised at all. In the present case, however that difficulty cannot arise. The sentence of fine was imposed by Mr. Pandya, the Judicial Magistrate, First Class, Bhavangar on 31st December 1973 and the question regarding enhancement of sentence is being decided by me within 1 month of the date of the sentence. Even if it was otherwise, the question would remain whether it is a fit case having regard to the considerations which ought to have prevailed with the learned trial Magistrate whilst imposing the sentence to take into account the time-lag in the context of the relevant provisions of the P.F.A. Act. 1 am, therefore, unable to accede to this proposition.
7. It was then argued that the present case was one where the proviso to Section 16 was applicable and, therefore, the trial Court had discretion to impose a sentence of less then six months. Now, on a true interpretation of Section 16 of the P.F.A. Act, the proviso is attracted only in two cases. First, when the offence is under Sub-clause (1) of Clause (a) of Sub-section 16 which relates to importation into India of articles of food as specified in the said proposition. The second category where the proviso is attracted is when an article of food is adulterated within the meaning of Sub-clause (1) of Clause (i) of Section 2 or misbranded under Sub-clause (k) of Clause (ix) of that section. So far as adulteration is concerned, the first part is applicable and the proviso will be attracted only in the event of the adulteration being one which falls within the category defined by Sub-clause (1) of Section 2, that is to say, when the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are outside the prescribed limits of variability. In the present case the report of the Public Analyst, Ex. 9, shows that in two respects the sample in question did not conform to the prescribed standard in respect of groundnut oil. Appendix IV of the Prevention of Food Adulteration Rules, 1955, read with Rule 5 which prescribes the standard goes to show that the specifications in regard to groundnut oil are contained in Entry Article 17. Order 3. There is no dispute that in regard to two items of specifications relating to standard and quality, namely, the one contained in (a) and (f), the offending sample is not in conformity with the prescribed standard being outside the permissible limits. The Butyro-refrac-tometer at 40C should not exceed 57.1 as per the prescribed standard. In the present case the reading is 57.9. So also the Bellier test reading by the prescribed method must be between the range of 39 C to 41 C. In the present case it is less than 39 C inasmuch as it is 385 C. But what is worse, a foreign substance, namely, castor oil which is an inedible oil is found in the offending sample. It is not disputed even by counsel for the opponents that to this extent the offending sample does not conform to the required specification and that it can be said to be adulterated. To the extent that the aforesaid two tests are not conformed to, the adulteration would fall within the description of Section 2(i)(1). In such an event the proviso to Section 16 would be attracted. It would, however, not be attracted when the offending foodstuff is found to contain a foreign substance, namely, castor oil, which is an inedible oil. It would, in ray opinion, fall under Section 2(i)(a) or 2(i)(b) or at any rate 2(i)(c). I do not propose to examine under which particular clause it will fall for in the present case nothing turns on it. It certainly is 'adulteration' which falls outside the ambit of Section 2(i)(1). That is sufficient. It is argued by counsel that it cannot be said that it affects the quality of the groundnut oil that is sold. This argument, however, overlooks that what a consumer purchases is groundnut oil and not groundnut oil mixed with castor oil. To the extent that he is sold a substance other than groundnut oil, it is to his prejudice for he pays the value for groundnut oil unadulterated by any other oil such as castor oil which is an inedible oil. Surely castor oil cannot find its way in groundnut oil in natural course. Besides, no businessman would add a costlier substance for it would land him in loss to do so. At the material time (commonsense guarantees) castor oil was a cheaper substance worth while adding to groundnut oil. Moreover, it is not an edible oil. The mixture was, therefore, indubitably prejudicial to the consumer. It is, thus clear that it is adulteration which does not fall within the description of Section 2(i)(1). The proviso would not therefore, be attracted and the minimum sentence of six months along with a sentence of fine must be imposed. But even if the proviso were attracted, it does not mean that it has to be invoked. As observed earlier, the purpose of the legislation would be set at naught and it would amount to virtually repealing the provision enacted by the Legislature in its wisdom if this proviso were to be considered as authorizing imposition of token sentence of fine which as stated earlier, would be self defeating. In my opinion, therefore, whether or not the proviso applies is immaterial having regard to the fact that for the reasons already articulated, the sentence imposed by the learned trial Magistrate is extremely soft and lenient and grossly inadequate.
8. It was next argued by the Learned Counsel for the opponents accused that it is open to him to show that the conviction itself was improper or bad when the Court is exercising powers under Section 439 of the Code of Criminal Procedure. Now, in the present case, the accused had pleaded guilty. He, therefore, did not have right of appeal (see Section 412 of the Code of Criminal Procedure). But even so the High Court's power to examine the propriety of the order of conviction and sentence when exercising revisional powers under Section 439 could not be lost provided it could be shown that on admitted facts it would not constitute an offence or that the Court was lacking in inherent jurisdiction. In the present case it is argued that the learned Magistrate could not have taken cognizance of the complaint inasmuch as it was not made by a competent authority. Shelter was sought under Section 20 which prescribes that no prosecution for an offence under the P.F.A. Act shall be instituted except by or with the written consent of the competent authority. Now the, competent authority has been defined by Section 20. The local authority i.e. a municipality is a competent authority to grant written consent to the prosecution. In the present case the prosecution has been instituted with the written consent of Shri Vashi who was at the material time Incharge Health Officer. It was at one stage argued that the Health Officer himself can grant the consent but not a person in charge of the office. This contention was negatived by a Division Bench of this Court in Criminal Appeal No. 182 of 1973 decided on July 10, 1973. The relevant passage from this judgment has already been quoted in the opening portion of this judgment The opponent accused No. 1 himself was a party in that matter. It is no more open to the opponent No. 1, therefore, to contend that the Incharge Health Officer was not competent to grant the requisite consent. Besides, having regard to the definition of 'Health Officer' embodied in Rule 2(c) of the Gujarat Prevention of Food Adulteration Rules, 1961 which is in the following terms:
'Health Officer' includes Executive Health Officer of Health, Assistant Director Health Officer, Deputy Director of Public Health Services or any other officer who is empowered to carry out the duties of a Health Officer;
it is futile to contend that a person empowered to carry out the duties of a Health Officer is not a 'Health Officer' as defined in the Rules, In fact, the re-trial was ordered in the case of opponent-accused No. 1 with a view to enable the prosecution to lead additional evidence to establish that Mr. Vashi was in fact an Incharge Health Officer, the remand being for that limited purpose. This is another reason why opponent-accused No. 1 cannot raise this contention which is devoid of merit. It was, however, argued that there was no satisfactory evidence to hold that Mr. Vashi was Incharge Health Officer. I am unable to accede to this argument. The evidence on P.W. 2. Thakorbhai (Ex. 20) read with the evidence of the Food Inspector Saiyed Mohmad Allarakh (Ex. 34) read with Exs. 35 and 36 clearly shows that Mr. Vashi was empowered to discharge the duties of Health Officer and was Incharge Health Officer. Ex. 35 is a communication addressed by the Chairman of the Executive Committee of the Bhavnagar Municipality proposing that the Chief Sanitary Inspector should be empowered to discharge the functions of the then Health Officer who was retiring on June 30, 1973. On 21-8-70 Mr. Thakorbhai Khandubhai Vashi was empowered by the President of the Bhavnagar Municipality under Resolution No. 139. The written consent in the matter giving rise to the present enhancement proceeding was accorded by Shri Vashi on November 29, 1970 some three months thereafter. It is, therefore, clear that Mr. Vashi had the requisite authority. There is no substance whatever in this super-technical contention that there was an irregularity in the consent granted by the Incharge Health Officer.
9. Lastly it was argued that the prosecution was liable to fail on the technical ground that the Public Analyst had not sent the report of the result of the analysis made by him within a period of sixty days of the receipt of the sample. This argument was based on Sub-rule (3) of Rule 7 which reads as under:
7.(3) After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form 111 within a period of sixty days of the receipt of the sample.
The report of the Public Analyst is at Ex. 9. It shows that the sample in question was received by him on August 4, 1970. The endorsement at the foot shows that he had examined it on August 27, 1970 i.e. within 23 days. The signature made by him shows that it was signed on 1st October 1970 i.e. within 58 days. There is also a rubber stamp impression at the bottom which shows that it was received at Bhavnagar on 16th October 1970. On the basis of this material it is argued that Rule 7(3) is contravened. Now, what Rule 7(3) requires is that the report should be 'sent' by the Public Analyst within sixty days. It does not say that it must be 'received' at the Bhavnagar end within sixty days. This is for the obvious reason that the Public Analyst can only send the report within the prescribed time. He cannot ensure that it is received at the Bhavnagar end within the specified time. This is understandable for there might be a strike in the Postal or Railway Services or the Services may be dislocated on account of floods or disturbances. When this was pointed out to counsel, it was argued that there was nothing to show that it was sent within sixty days though it was signed within sixty days. It is true that there is no positive material to show that it was sent within sixty days. But then there is a presumption that official duties must have been discharged by the Public Analyst in the prescribed manner. It also stands to reason on probabilities to hold that having signed the report there was no reason for him to keep it back. The Food Inspector has not at all been cross-examined with a view to ascertain on what date the report was sent. If any such point had been made in the trial Court, the prosecution could have adduced necessary evidence. In the present state of affairs it is not possible to uphold the contention that Rule 7(3) is contravened. But assuming that it is contravened, I am not prepared to hold that it vitiates the trial. It was argued that Rule 7(3) which enjoins that the report should be sent within sixty days was mandatory in character Reliance was placed in support of this contention on Public Prosecutor v. Meenakshi Achi and Anr. 1970 Criminal Law Journal 926. On a perusal of this judgment, it appears that it does not deal with Rule 7(3) at all No question as to within what time-limit the report of the Public Analyst should be sent arose in that matter. This question was not directly before the High Court. What was before the High Court was Rule 7(2) which was held to be mandatory. We are not concerned with that part of the rule. We are concerned with Rule 7(3) which does not appear to have come up for consideration heretobefore. In my opinion, the rule is directory in character and not mandatory. What is the purpose in insisting on the report being 'sent' within 'sixty' days? There is no magic of mysterical significance in sending the report within a specified time It would have been a different matter if the rule enjoined 'examination' of the sample within a specified period for the sample is liable to deteriorate or alter with the passage of time. This rule has obviously been enacted only to ensure that the proceedings are completed within the shortest possible time. Substantial compliance therewith is, therefore, sufficient. Even if, therefore, it is possible to take the view that it is not satisfactorily shown that report was 'sent' within sixty days, 1 would not have sustained the contention that the prosecution was vitiated.
10. It was lastly argued that Rule 18 of the Prevention of Food Adulteration Rules was violated inasmuch as there was nothing to show that the packet containing the specimen impression of the seal used to seal the packet was sent by registered post to the Public Analyst. Now, this argument is baseless. The Food Inspector in terms has stated that the packet was sent by registered post. Not one single question was put to him under cross-examination to challenge this statement. It is, therefore spec-ious to argue that the packet was not sent by registered post. There is also intrinsic evidence to show that it was sent by registered post. The memorandum addressed to the Public Analyst (Ex. 8) dated July 30, 1970 contains a recital that the packet in question was being sent by separate registered post. It is, therefore, abundantly clear that there is no violation of Rule 18. There is no substance in this contention either.
11. Lastly it is argued that this High Court has itself imposed sentences of fine in the past and therefore I should follow suit. Reliance is peaced on Bhavnagar Municipality v. Nart DI Anr. 12 Q.L.K. sn decided by Divan J. as he then was, and V.B. Shukla, Food Inspector v. PakalhyLldas and Anr. 14 G.L.R. 381, decided by T.U. Mehta J. T do not read any such proposition in the above decisions where on he facts of the case before the Court a sentence of fine was imposed. Besides such an argument is no more open having regard to the view taken by the Supreme Court in Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Ors. : 1974CriLJ313 , wherein the Supreme Court has observed as under:
The learned Magistrate, we are constrained to observe, has completely failed to appreciate the gravity of food offences when he imposed a naively negligible sentence of one hundred rupees fine. In a country where consumerism as a movement has not developed, the common man is at the mercy of the vicious dealer. And when the primary necessaries of life are sold with spurious admixtures for making profit, his only protection is the Prevention of Food Adulteration Act and the Court. If offenders can get away with it by payment of trivial fines, as in the present case, it brings the law into contempt and its enforcement a mockery. In this context, it is apposite to draw attention to measures taken in many advanced countries for the evolution of a rational and consistent policy of sentencing. Conferences between judges, magistrates and penal administrators are being organised with increasing frequency in England and in the United States. The 47th Report of the Law Commission has stressed the need for the programme because of the sentencing vagaries witnessed in our country.
12. The result is that so far as opponent No. 1 is concerned, the order of conviction cannot be challenged on any of the grounds So far intence is concerned, I have already expressed the opinion that it is unduly lenient and grossly inadequate. Having regard to the facts and circumstances of this case, in my opinion, the ends of justice require that opponent No. 1 Navalkishore Damodardas must bcj sentenced to suffer rigorous imprisonment for a period of atleast one year.
13. The petition is partly allowed. Rule is discharged so far as opponent No. 2 accused No. 2 Ghaashymbhai Babubhai is concerned. So far as opponent No. 1-accused No. 1 Navalkishor Damodardas is concerned, rule is made absolute to the extent that the substantive sentence imposed on him is enhanced from that of imprisonment till rising of the Court to one of one year's rigorous imprisonment. The sentence of line and the sentence in default of payment of fine are confirmed. Two weeks' time is granted to opponent No. 1-accused No. 1 to surrender to custody. Warrant of arrest shall issue on the expiry of two weeks from today and he shall surrender to custody.