M.P. Thakkar, J.
1. A person having a shop on the Makarpura Road at Baroda for selling milk, charged with having stored or sold an article of food, namely, milk which was adulterated, pleaded guilty and was convicted for an offence under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act of 1954. He was sentenced to suffer imprisonment till rising of the Court and to pay a fine of Rs. 450/- by the learned Judicial Magistrate, First Class, (Muni.) Baroda Shri M P. Shah. The sentence was considered prima facie inadequate and a suo motu notice was issued by the High Court to opponent Dahyabhai Desaibhai Parmar to show cause why the sentence imposed by the trial Court should not be enhanced. The opponent did not appear in response to the notice.
2. The record shows that the milk which was purchased from the shop of the opponent was adulterated as alleged. The report of the public Analyst is at Ex 7 and it shows that the sample contained extraneous water to the extent of 11.0% and there was a fat deficiency of 64.51%. It is clear that the milk sold by the opponent is very much inferior in quality. In the first place extraneous water to the extent of 11.0% has been added. In the second place the fat deficiency is of a very high order, namely, of the order of 64.51%. It is a matter, therefore, of which a serious view in regard to sentence should be taken. The grounds given by the learned Magistrate for imposing lenient sentence are contained in paragraph (5) of the judgment which reads as under:
Moreover the accused is a poor man. He is repenting for this offence. He assured for not to commit such offence again. There are 12 members in his family. He has small children and except himself (here is no earning member in his family. Now-a-days he is not doing well with his business. His family has to starve without his income because these days are very hard days as it is an year of famine and hence the accused has prayed for mercy. Considering the mitigating circumstance of the accused I think that the sentence of T.R.C. and heavy fine will meet the ends of justice and serve the purpose. In the result I pass the following order.
3. Now, it appears that the opponent pleaded guilty. In reply to a question as to whether he wanted to say anything further, the opponent made a statement wherein he stated that there were 12 members in his family, he had small children to maintain and there was no other adult member in his family. It is on the basis of the statement made by the opponent that the learned Magistrate has imposed the lenient sentence. The learned Magistrate ought not to have accepted everything stated by the opponent as gospel truth. He had not called for the report from the Probation Officer or tried to ascertain the (truth of the facts stated by the opponent in his statement. One cannot take for granted everything that the opponent has stated as true. Even assuming that what he has stated is true, the learned Magistrate ought to have realised the seriousness of the offence committed by the opponent. Poor persons must have gone to the shop of the opponent to purchase milk with their hard earned savings. What they got from the shop was not milk but a substance which disclosed 64.51% deficiency and which contained 11.0% of extraneous water. In fact, therefore, the poor persons were made to part with their hard earned savings to obtain water to which some milk was added instead of milk. And this substance could not have served the purpose of the purchaser which would be to provide nourishment to the children. A lenient view cannot be taken in such matters and a substantive sentence ought to have been awarded. In my opinion, the revision application must be allowed.
4. The revision application is allowed. The sentence imposed by the learned Magistrate is enhanced from imprisonment till rising of the Court to rigorous imprisonment for a period of three month. The sentence of fine will remain. Warrant for arrest shall issue.