M.L. Shrimal, J.
1. Municipal Council, Jaipur has filed this appeal by special leave against the judgment dated December 24, 1970 of Municipal Magistrate. First Class Jaipur City (West) whereby the acquitted the accused-respondent Sitaram under Section 7 read with Section of the prevention of Food Adulteration Act, 1954 (hereinafter to be called 'the Act').
2. The prosecution story in a nutshell is that on January 16, 1968 at 7.30 A.M. P.W. 1 Shri A.P. Goyal, Food Inspector checked the shop of the accused respondent located at Nahargarh Road, Purani Basti Jaipur City. He found a cucket full of milk weighing nearly 8 kg., and suspected it to be adulterated. Havign disclosed his identity to the accused respondent the Inspector served him a notice and then purchased 710 gms. o milk for Rs. 1.05p. The milk was divided into there parts Each part was then filled in three clean and dry bottles. 16 drops of formalin were added to milk filled in each bottle. All the three bottles were corked and sealed and wrapped in a paper which was signed by the Food Inspector and the attesting witnesses. A memorandum containing all the detail of the action taken by the Food Inspector was prepared and is marked Ex. P2. It bears the signatures of P.W. 1, A.P. Goyal, Food Inspector and two attesting witnesses, P.W. 2, Harinarain and Ramesh Kumar. It also bears the signatures of the accused respondent Sitaram. One sample of bottle was given to the accused respondent and the other was delivered in the office of the Chief Public Analyst, Jaipur along with a specimen seal-impression. The from containing the specimen seal impression is Ex.P. 4. The receipt for the delivery of the bottle in the office of the Chief Public Analyst, Rajasthaa Jaipur is also rrurked Ex 4 A to B. The third bottle was retained by the Food Inspector and was delivered in the office of the Health Officer, Municipal Council, Jaipur. The sealed bottle was received by the Public Analyst on January 16, 1968 i.e., the date on which the same was purchased. It was analysed on January 17, 1968. He analysed the contents of the bottle and declared the result as under vide Ex. P5-
Fat currents ... 5.3 percentSolid non-fat ... 7 82 percentCare Sugar and starch ... Nil.
In the opinion of the Public Analyst the sample of milk was adulterated as it remained at cut 13 percent of added water. PW 1 A.P. Goyal, Food Inspector, filed a complaint in the court of Municipal Magistrate, First Class, Jaipur against the accused respondent Sitaram for his prosecution under Section 7/16 of the Act. The accused denied his complicity in the crime.
3. The prosecution in support of their case examined two witnesses P.W. 1, A.P. Goyal, and PW 2 Hari Narain, out of whom the latter was decaled hostel by the prosecution and was allowed to be cross-examined. The accused in his statement recorded under Section 342 CrPC denied the entire prosecution case. The defence of the accused was that the milk was meant not for the purpose of sale but for cleaning the sugar.
4. The trial court gave the finding that it was not proved that the accused had kept the milk for sale, nor that the sale made it the Food Inspector was voluntary. The learned Magistrate decided all other points in favour of the prosecution. It is on the basis of this finding that the accused-respondent Sitaram was acquitted by the learned Magistrate.
5. The learned Counsel Mr. S.K. Keshote appearing on behalf of the Municipal Council, Jaipur challenged the finding of the trial court. He has urged that the trial court has failed to appreciate the proved facts of the case and the law applicable to it. His contention was that the conclusion reached by the trial court is obviously based on an erroneous view of law which has resulted in grave injustice. The testimony of PW 1 Food Inspector supported by documentary evidence Ex. P1, & P2 is sufficient to hold that the respondent was a milk vendor. Section 2(13) of the Act is wide enough to cover the compulsory sale and the sale for analysis also tails within the admit of this definition. The learned Counsel for the accused-respondent has supported the judgment of the trial court and has urged that the respondent did not want to sell the milk, but the Food Inspector obtained it not voluntary by exchange for a price but by exercise of statutory powers under the threat of calling the police and as such it does not amount to a sale.
6. The point for consideration is whether the transaction in question i.e. taking of the sample by PW/1 A P. Goyal, Food Inspector amounts to a pale and whether the accused-respondent could be said to have infringed Section 7(1) of the Act.
7. PW 1, A.P. Goyal, Food Inspector, slated that on January 16, 1968 at 7.30 A.M. he went to the shop of the accused for checking. He suspected the milk in toe bucket to be adulterated He disclosed his identity to the accused-respondent himself, and asked him to show his licence. He purchased 750 Gms. of milk for Rs. 1. 05 nP. The receipt of the amount evidencing the sale of be milk made by the accused-respondent is Ex. P. 1 which has been executed by the accused-respondent himself, and beats his signature. It also bears the signatures of the attesting witnesses PW 2 Harinarain and Ramesh Kumar Ex.P. 2 is in two parts. The first half is the copy of form No. VI prescribed under the Act. The other half enumerates the details of the steps taken by the Food Inspector at the time of taking the sample. It also bears the signatures of the accused-respondent and the Food-Inspector PW 1 A.P., Goyal. The ocular evidence given PW 1 at the trial stands corroborated by both these documents Ex. P. 1 and Ex P. 2 Thus from the prosecution evidence the taking of the sample from the focused-respondent by the Food Inspector on January 16, 1968 is proved beyond any doubt. A bare denial of the entire prosecution case by the accused-respondent is not sufficient to rebut the positive statement of the Food Inspector. DW 1 Radhey Shyam has also admitted that the Food Inspector PW 1, A.P. Goyal went to the shop of the accused Sitaram on the date and at the time mentioned by the prosecution The witness simply said that the accused had stated that the milk was not kept for sale but for cleaning the sugar. In fact he did not want, to sell it but on the persuasion of Harnarain be allowed the Food Inspector to take the sample. A careful examination of the statement of this witness does not negative the purchase of the sample of the milk by the Food Inspector PW 1 A.P. Goyal from the accused; His statement was only to the effect that the sale was not nude voluntarily Ex P. 1 and Ex P 2 read with the statement, of A.P. Goyal (PW 1) make it absolutely clear that the sample of the milk was taken from the respondent against a payment of Rs. 105 np.
8. The definition of sale as given in Section 2(xiii) of the Act runs as follows:s
2 (xiii) : 'Sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or re fail, for human consumption or use, or for analysis, and includes, an agreement for sale, an offer fir sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.
The Act gives a special definition of the word 'sale' in Section 2(xii) which includes within its ambit a sate for analytic. A sale for analysis must, therefore, be considered as sale even if the transaction contains an element of, impulsion. A contract is brought about by acceptance of a proposal mid by one person to another. The latter is not bound to accept the proposal. It does not, however, necessarily follow hat where the other person has no choice but to accept the proposal, the transaction would not amount to a contract. So when a milk vendor sells to a Food Inspector milk for analysis, that transaction will be covered by the ambit of the Act. The matter is concluded by Mangaldas v. Maharashtra State : 1966CriLJ106 .,
9. In Food Inspector, Calicut v. C. Gopalan : 80ITR177(SC) the Hon'ble the Supreme Court of India laid the law thus:
There is no controversy that sugar with which we are concerned in this case is an article used as food for human consumption or at a y rate it is an article which ordinarily entered into or is urged in the composition or preparation of human food Even according to the respondents the sugar to kept in their tea stall was intended to be used in the preparation ct tea which was being sold to the customers. A reference to the definition of 'sale' will also show that a tale of any article of food for analysis comes within that definition. That the sample of fond purchased by the Food Inspector in this case satisfies the definition of 'sale' in Clause 14 is also beyond controversy.
10. In Food Inspector v. Charukattil Gopalan and Anr. 1972 Prev. Food Adult Cases 9 Hon'ble Vaidialingam J., speaking for the Court laid the law thus:
To sum up we are in agreement with the decisions reported in Municipal Board, Faizabad v. Lal Chand Surajmal and Anr. and the Public Prosecutor v. Palanisami Nadar to the extent to which they lay down the principle that when there id a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punish-able under Section 16(1)(3)(i) read with Section 7 of the Act. We further agree that that the article of food which has been purchased by the Food Inspector need not have been taken out from a large quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need net be a dealer as such in that article. Why are not inclined to agree with the decisions laying the contrare propositions.
11. In view of the law thus settled by the Hon'ble Supreme Court, it is difficult to appreciate the reason which led the trial court to hold that the transaction like the present one does not amount to a sale. The case Municipal Council, Jaipur v. Laxminarain A.I.R. 1967 Raj. 16 relied upon by the trial court is distinguishable in regard to the facts of this case. In that case the learned Magistrate found that the taking of the sample in the presence of the accused of that case was not established. His Lordship Hon'ble B.P. Beri, as he then was, while deciding the appeal No. 107 of 1965 upheld the finding of the fact and gave the benefit of the doubt to the accused But in the case on band, the sale of the sample of milk to the Food Inspector has been proved by cogent & reliable evidence. The other c se relied upon by the trial court is Asgar v. State 1970 Cr.L.J. 1289. With great respect I am unable to agree to the interpretation placed by the learned Judge on Section 2(xiii) of the Act. The ratio decidendi of this case is contrary to the law laid down by their Lordships of the Supreme Court, referred to above and as such a detailed consideration of this case is not required to be made.
12. The learned Counsel appearing for the accused-respondent has neither raised any other contention to support the judgment of acquittal passed by the trial court nor has he challenged the correctness of the other finding arrived at by the trial court in favour of the prosecution.
13. An affidavit sworn by the ton of the accused-respondent was submitted by the learned Counsel for the respondent on 5-11-1975. The learned Counsel for the appellant has no objection to having this document on the record & its reading in support of the respondent's submission. It has been stated in the affidavit that the accused respondent is an old man of 65 years of age and is suffering from ill-health. Owing to this illness he has not been able to attend to his business for the last three years and is not in a position to move Placing reliance on the facts mentioned in the affidavit, the learned Counsel for the respondent has prayed that a lenient view in the matter consistence maybe taken and the respondent may be sentenced to pay a normal fine only. He has placed reliance on Swami Din v. State of Uttar Pradesh 1973 Prev. F. Adult Cases 169, The Public Prosecutor v. Akula Bangaramma 1974 Prev F Adult Cases 485, Santa Singh v. The State of Punjab 1973 Prev. F Adult Cases 218, and Municipal Council, Jaipur v. Kanhaiyalal 1974 W.L.N. (U.C.) 247.
14. Before examining the various authorities cited before me, I would make an elementary analysis whether a sentence of fine only can be imposed under the proviso to Section 16(1) of the Act.
15. Section 16(1)(a)(ii) is the penal section. The relevant portion of the section reads as under:
16 Penalties. - (1) If any person,
(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food
(i) which is adulterated or misbranded or the sate of which is prohibited by the Food (Health) Authority in the interest of public health;.
he shall, in addition to the penalty, to which he may be liable under the provisions of Section 6, 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 cot be less thin one thousand rupees;
(i) If the offence is under Sub-clause (i) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2 of misbranded under Sub-clause (k) of Clause (ix) of that section; or.
the court may for any adequate and special reason 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 or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
16. It would appear from the substantive part of this section that the sentences both of imprisonment and a fine are compulsory. The maximum Sentence of imprisonment may extend to six years while the minimum cannot be less than six months. The minimum sentence of fine would not be less than Rs. 1000/-.
17. Assuming for the sake of argument that in a given case there are adequate and special reasons for imposing lesser sentence, the question for consideration remains whether both imprisonment and fine are required to be imposed or no.? The main part of the section is conjunctive while the proviso uses the word 'or' in the first two clauses. It is now well settled that the proviso has to be considered in relation to the main enactment and should not be allowed to completely take away the effect of the enactment itself. In the main part of the sentence intended to be imposed is of conjunctive nature and is not defeated by providing a disjunctive punishment in the proviso. The proviso envisages three contingencies viz. (1) the court may impose imprisonment for a term of less than six mouths and fine of Rs. 1000/-, (ii) or it may impose an imprisonment of six months and a fine less than Rs. 1000/-, or (iii) it may also impose a sentence both of imprisonment for a term less than six months and a fine of less than Rs. 1000/-.
18. A proviso has to be considered in relation to the main enactment and should not be permitted to obliterate or swallow the enactment itself. In my view, therefore, the proviso cannot be assigned a scope and purpose not contemplated by the main enactment and must always be construed harmoniously with the main enactment. A proviso will not be normally construed as reducing the purview of an enactment to a nullity. No legislature will at the same time give something by one hand and take back the same thing by another. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating this anti-social evil. In a particular case the adulteration may pinch one individual in a e-mall measure. But the adulterator spreads his net wider, and the totality of the gun that he makes becomes enormous when one takes in to reckoning the fact that the act is repeated several times a day and continues for years, that is to say, he commits the offence not once but several times a day and goes on doing so, till he is detected, but by then has also amassed wealth enough to pay any amount of fine & has imperilled the health of a large number of persons by providing them with unwholesome food deficient, in nutrition. It could never have been intended by the legislature considering the general trend of the enactment that the offender whose case was covered by the proviso could be given the facility to escape with fine alone. The language of the proviso to Section 16 is apt to meet the three possible contingencies mentioned above.
19. On the aforesaid analysis lam clearly of the opinion that even under the proviso the sentence of imprisonment and fine is binding. The proviso only makes provision for reduction of sentence for adequate and special reasons, it does not, however, make the sentence disconjunctive. The conjunctive character of the sentence prescribed in the substantive part of the section remains unaffected.
20. Before dealing with the cases cited before me by the learned Counsel for the respondent, it is pertinent to mention that in none of those cases. The legality of the imposition of the sentence of fine only was questioned or decided. The scope and ambit of proviso was also not considered.
21. In Swami Din v. State of U.P. 1973 Prev. F. Adult Cases 169 the Single Judge of the Allahabad High Court white dismissing the revision petition on merit set aside the sentence of imprisonment of six months imposed on the applicant an reduced the sentence to a fine of Rs. 1000/-. In that case the reason for reducing the sentence which weighed will his Lordship was that the accused appellant was a petty milk-vendor and was not a previous convict.
22. Contrary to above decision, there is an authority of the Division Bench of the Allahabad High Court District Medical Officer of Health and Anr. v. Binda Prasad 1972 Prev. F. Adult Cases 552. The trial Magistrate taking a lenient view of the offence awarded a sentence of Rs. 20/- only under Section 16 of the Act and when ultimately the matter came in revision before the High Court, Puri J. speaking for the Court observed thus:
The said proviso clearly indicates that even if for adequate and special reasons indulgence is to be accorded to the accused concerned, then the imprisonment and fine both are to be imposed upon the accused concerned through reduction may be effected therein from the normal punishment provided in Section 16 as indicated above. It is not open to the Court while convicting the accused of offences mentioned in the said proviso to award sentence of payment of fine only No, the trial Court was absolutely wrong in awarding sentence of fine only to the respondent.
23. In that case the sentence was enhanced to six months simple imprisonment and a fine of Rs. 1000/-
24. In Subbavyam v. State A.I.R. 1968 Ker 330 the trial Magistrate awarded a sentence of Rs. 600/- in C.C. No. 18 of 1966 under Section 16 of the Act and when ultimately the matter came in revision before the High Court, a notice for enhancement was issued and the High Court observed as under:
We are unable to accede to this argument. If an inferior Court has imposed a sentence below the minimum prescribed by the law, it is the duly of this Court to correct the error. Otherwise is not only that accused person would escape without adequate punishment, which would cause discrimination between persons found guilty of the same offence, but it would also lead to create a feeling in the subordinate Court that they can with impunity disregard the statutory provision, and impose a punishment below the minimum prescribed for an offence.
25. In Public Prosecutor v. Akula Bangnramma 1974 Prev. F. Adult Cases 485 the learned Single Judge of the Andhra Pradesh High Court while convicting the accused under Section 16(1) read with Section 7 of the Act took into consideration the fact, that the accused was a woman and was only running a petty tea stall and so he sentenced her to pay a fine of Rs. 2/-. This case is distinguishable on faces. Besides this with due respect to the Judge of Andhra Pradesh High Court, who decided this case. I differ from him and do not feel persuaded to adopt such a reasoning.
26. In Santa Singh v. The State of Punjab 1973 Prev. F. Adult Cases 218 the learned Single Judge of that Court taking into consideration the age of the accused to be 70 years and the fact that the accused bad been on bail for the last one year, reduced the sentence of imprisonment to the period already undergone and imposed a fine of Rs. 600/-.
27. The last case relied upon by the learned Counsel for the respondent is Municipal Council, Jaipur v. Kanhaiyalal 1974 W.L.N. (U.C.) 247. In that case there was unexplained delay in launching the prosecution and the accused had already given up the business. In the peculiar circumstances of that case only fine was imposed on the defaulter. The legality of the imposition of fine only was not questioned nor was raised any dispute regarding the scope and ambit of the proviso.
28. In a case reported as the State v. Sanwala 1971 R.L.W. 566 the Division Bench of this Court had the occasion to consider the question of quantum of sentence. In this, case Hon'ble Beri J., as he then was, speaking for the Court observed as under:
We have already observed in The State v. Beharilal that the Legislature while amending the Prevention of Food Adulteration Act provided a minimum sentence of 6 months' rigorous imprisonment and a fine of Rs. 1,000 for selling adulterated food. We said 'This is an expression of the righteous indignation of the community against offences of this kind with the object of preserving and promoting the well being of the society A relaxation from the rigour of the minimum is permitted for any adequate and special reasons to be mentioned in the judgment. The ambit of the Court's discretion in awarding a sub-minimum sentence is to be regulated by reasons which are special as distinguished from common place. Such reasons hive to be adequate that is sufficiently weightily, The Court has to further express those reasons in the judgment enabling the superior Courts and the Society to know the grounds for the grant of indulgence. What could be adequate and special reasons for imposing a sub minimum sentence? Such reasons must necessarily relate to the gravity of the crime; the position of the offender and the surrounding circumstances. The Court while awarding punishment hat to seriously consider the commands of law and the air bit of the judicial discretion conferred by it. It is plain that the object of providing minimum substantial pecuniary punishment is to discourage and deter anti-social elements in society, who motivated by avarice, cause incalculable harm to human health. The need for amending this part of the law presumably arose from the prevalence of the evil.
29. In that case the accused Sanwala was convicted under Section 16 read with Section 7 of the Act by the learned Sub Divisional Magistrate, Sirohi on October 7, 1968 and having regard to the age of the accused and his poverty the learned Magistrate awarded a fine of only h Rs. 15/-. Hon'ble Beri J. as he then was, speaking for the Court further observed as fellows:
The learned Magistrate in the case before us has given two grounds for awarding a fine of Rs. 15/- only. The first is the age of the accused. We have carefully looked into the record and the age has not even been mentioned. Because the accused has signed his own bond we have reasons to presume that he is not a minor. There is no data on the record to warrant an indulgence on the around of age. The second reason which persuaded the learned Magistrate to award the sentence of fine is the poverty of the accused. So far as poverty is concerned, there is no materiel on the record to indicate the same Accordingly we cannot but accept the reference and award at elast the minimum sentence provided by law to accused Sanwala.
30. Lastly, the learned Counsel for the respondent has urged that it is a fit case in which the benefit of Section 4 of the Probation of Offenders Act may be extended to the accused. He proved reliance on Municipal Corporation of Delhi v. Sri Ruti Ram and Ors. 1974 Pre F.D. Cases 338. This matter is concluded by Pyrali K. Tejani v. Mahadeo Ramchandra Dinge and Ors. : 1974CriLJ307 . Their Lordship of the Supreme Court laid the law bus:
The retaliatory purpose of the Probation of Offenders Act 1958, is pervasive enough technically to take within the wings an offences even under the Act. The ruling in Isher Das v. State of Punjab : 1972CriLJ874 is authority for this position. Certainly, 'its beneficial provisions should receive wide interpretation and should not be read in a restricted sense'. But in the very same decision this Court indicated one serious limitation.
Adulteration of the food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed, the courts should not lightly recreate to the provisions of the Probation of Offenders Act in the case of portents above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act....
The kindly application of the probation principle is negatived by the imperatives of social defence and the improbabilities of moral proeelytisation. No chance can be taken by society with a man whose anti-social operations, disguised as a respectable trade imperil numerous innocents. He is a security risk. Secondly, these economic offences committed by white cellar criminals are unlikely to be dissuaded by the gentle probationary process. Neither causal provocation nor motive against particular persons but planned profit matting from numbers of consumer furnishes the incentive not easily bum cited by the therapeutic probationary measure, it is not without significance that the recent report (47th report) of the Law Commission of India has recommended the exclusion of the Ac to social and economic offences by suitable amendments. It observed:
We appreciate that the suggested amendment would be in apparent conflict with current trends in sentencing. But ultimately, the justification of alt sentencing is the protection of society. There are occasions when an offender is so antisocial that his immediate and sometimes prolonged confinement is the best assurance of society's protection. The consideration of rehabilitation has to give way, because of the paramount need for the protection of society. We are, therefore, recommending suitable amendments in all the Acts, to exclude probation in the above case's (p. 85)' In the current Indian conditions the probation movement' has not yet attained sufficient strength to correct these intractable. May be, under more developed conditions a different approach may have to be made. For the present was cannot accede to the invitation of let off the accused on probation.
31. The offence committed by the respondent was under Sub-clause (1) of Clause (a) of Section 16 of the Act, and wish respect to an article of food. Which was adulterated under Sub-clause (1) of Clause (1) of Section 2 of the Act The proviso to Section 16 of the Act is, therefore, applicable. The offence is alleged to have been committed in the year 1968 and the appeal against the order of acquittal has come up for hearing after more than four years and further the person who had sold the adulterated milk is alleged to be old man of 65 years and had been suffering from ill health for the last three years and he also abandoned the business for three years. Hon'ble the Supreme Court of India in Ajit Prasad Ram Kishan Singh v. The State of Maharastra 1972 Pre F.D. Cases 545 after taking, into consideration the circumstances of that case which are similar to come extent to the face of the case in hand was pleased to reduce the sentence from six months rigorous imprisonment and a fine of Rs. 1000/- to three months rigorous imprisonment and a fine of Rs. 500/-. Taking a conspectus of the case mentioned above, I consider a just and proper to give the advantage of proviso to the accused respondent.
32. In the result, I accept this appeal and set aside the acquittal of the accused-respondent Sitaram and convict him under Section 16 read with Section 7 of the Prevention of Food Adulteration Act and sentence aim to rigorous imprisonment for a period of three months and to pay a fine of 500/-, so default of the payment of which he shall undergo further rigorous imprisonment for a period of two months. The Chief Judicial Magistrate, Jaipur will take necessary steps for the arrest of the accused-respondent Sitaram and to seed him to jail to undergo the sentence awarded to him by this Court. He shall also report compliance.