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Case Number

Cr. Rev. No. 197 of 1959

Attorney(S)

S.N. Misra and P.N. Misra
K.N. Srivastava
Asst. Govt. Advocat

Judges

M.C Desai, J.

Acts

Cattle Trespass Act or the Public Gambling Act or the Child Marriage Restraint Act
PREVENTION OF FOOD ADULTERATION ACT
Sec. 16(1) of the Prevention of Food Adulteration Act
Sec. 16 of the Prevention of Food Adulteration Act
Act (for example, the U.P Pure Food Act,
CATTLE TRESPASS ACT

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Smart Summary

Judgment Summary — Desai, J.

Factual and Procedural Background

The applicant was convicted under Sec. 16(1)(ii) of the Prevention of Food Adulteration Act for selling adulterated milk and sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000. The conviction itself was supported by evidence and not challenged as illegal or improper; the primary challenge before the Court related to the sentence imposed.

The applicant had two earlier convictions under the U.P. Pure Food Act: on 22-11-1955 he was convicted and fined Rs. 75 under Sec. 42 for selling adulterated milk; and on 14-2-1956 he was convicted and fined Rs. 10 under Sec. 42 for selling milk without a licence. The central procedural question was whether those prior convictions under the U.P. Pure Food Act qualified the present conviction as a "second offence" under Sec. 16(1)(ii) of the Prevention of Food Adulteration Act, thereby attracting the higher minimum sentence and fine prescribed in that clause.

Legal Issues Presented

Whether the phrase "a second offence" in Sec. 16(1)(ii) of the Prevention of Food Adulteration Act requires that the previous offence be one punishable under the Prevention of Food Adulteration Act itself, or whether a prior conviction under another statute (for example, the U.P. Pure Food Act) can be treated as the "first offence" so as to render the present conviction a "second offence" under Sec. 16(1)(ii).
Whether, for the purpose of cl. (ii) of Sec. 16(1), the previous offence must be not only under the same Act but also of the same nature or under the same sub‑clause (for example, whether a previous conviction under sub‑sec. (b) or (c) would support application of cl. (ii) to a present offence under sub‑sec. (a)). (The Court stated this latter question did not arise for decision in the present case.)
Whether the sentence imposed (rigorous imprisonment for one year and fine Rs. 2,000) was excessive if the present conviction did not qualify as a "second offence" under Sec. 16(1)(ii).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's analysis proceeds as a statutory construction exercise focused on the words and context of Sec. 16 of the Prevention of Food Adulteration Act. The reasoning is given in discrete steps in the opinion and is summarized below in the sequence used by the Court.

Textual gap: The Court first observed that Sec. 16 contains no express provision answering whether a "previous offence" may be one punishable under another statute; the provision is silent on the nature or source of the prior offence and leaves the matter to interpretation (para 4).
Presumptions and grammar: The Court noted the ordinary contemplation when the terms "previous offence" or "previous conviction" are used is of a previous offence of the same nature or punishable under the same law (para 5). It emphasized that ambiguous statutory language must be construed favorably to the accused (strict construction against the State) unless doing so would defeat the object of the statute (para 5).
Structure of Sec. 16: The Court divided the acts made punishable by sub‑secs. (a), (b), (c) (violations of provisions of the Act or rules) and those in the remaining sub‑sections (acts not necessarily connected to the Act or rules) (para 7). It reasoned that an act amounting to violation of the Act (e.g., selling adulterated food contrary to Sec. 7(i) and thereby falling under sub‑sec. (a)) can be an offence only after the Act is in force; such offences are tied to the statute's prohibition rather than to the underlying physical act alone (para 7).
Offence versus act: The Court stressed the distinction between the "offence" (a statutory violation) and the underlying "act" (e.g., selling adulterated milk). For the enhanced punishments in clauses (ii) and (iii) to apply, the prior offence must itself have been an offence under the Prevention of Food Adulteration Act — i.e., the same statutory offence must have been previously committed and punished. A prior conviction under another law, even for similar conduct, does not amount to a previous offence under Sec. 16(1) (paras 6–8).
Contextual inference: The Court examined the context of sub‑sec. (1) and the clauses (i), (ii) and (iii) and concluded the Legislature's use of "the first offence," "a second offence" and "a third and subsequent offences" within the same sub‑section indicated that these refer to offences punishable under the same Act (para 8). The different language of sub‑sec. (2) did not affect this conclusion because sub‑secs. (1) and (2) have different structures and purposes (para 8).
Application to facts: Given that the applicant's earlier convictions were under the U.P. Pure Food Act and not under the Prevention of Food Adulteration Act, the Court held that the present conviction did not qualify as a "second" or "third" offence within the meaning of clauses (ii) and (iii) of Sec. 16(1) (para 9).
Sentence review: Because clause (ii) prescribes a mandatory minimum where it applies, and that clause did not apply here, the Court found the original sentence excessive. Clause (i) — applicable to a first offence under the Act — prescribes no minimum sentence, so the Court had discretion to reduce the sentence on the ground of excessiveness (para 10).

Holding and Implications

Holding: The Court held that the applicant's prior convictions under the U.P. Pure Food Act did not make the present conviction a "second offence" under Sec. 16(1)(ii) of the Prevention of Food Adulteration Act. The applicant's conviction was altered from Sec. 16(1)(ii) to Sec. 16(1)(i), and the sentence was reduced.

Direct effect on the parties: The sentence as altered by the Court is (a) imprisonment equal to the period already undergone in custody (the opinion notes that Sri P.N. Misra stated the applicant had undergone about six months' imprisonment), and (b) a fine of Rs. 500, with default rigorous imprisonment for three months. The applicant was allowed two months to pay the fine in the Magistrate's court; failing payment he must surrender and the Magistrate shall issue a non‑bailable warrant to take him into custody to undergo the default sentence (paras 11–12).

Implications beyond the parties: The opinion rests on statutory interpretation and clarifies that, for offences described in sub‑sec. (1) (particularly those amounting to violations of the Act itself), a prior conviction for the purposes of clauses (ii) and (iii) must be a conviction under the Prevention of Food Adulteration Act. The opinion does not expressly state that it establishes a binding precedent beyond the immediate decision; therefore, no broader new precedent is proclaimed in the text beyond the Court's interpretive conclusion applied to this case.

Disposition: Sentence reduced. (Final line of the opinion: "Sentence Reduced.")

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Chuttan v. State

Desai, J.:— The applicant has been convicted under Sec. 16(1)(ii) of the Prevention of Food Adulteration Act for selling adulterated milk and sentenced to rigorous imprisonment for one year and a fine of Rs. 2000/-. The conviction of the applicant is fully supported by evidence and there is nothing illegal or improper in it. The question raised before me is that of the sentence.

2. The applicant was convicted twice before under the U.P Pure Food Act. On 22-11-1955 he was convicted and fined Rs. 75/- under Sec. 42 of the Pure Food Act for selling adulterated milk. He was again convicted on 14-2-1956 under Sec. 42 of the Pure Food Act for selling milk without a licence and sentenced to a fine of Rs. 10/-. Sec. 16 of the Prevention of Food Adulteration Act reads as follows:—

“16(1) If any person—

(a) Whether by himself ……….stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder, or

(b) prevents a food inspector from taking a sample …………, or

(d) ……….has in his possession ………… any material which may be employed for the purpose of adulteration; or

(e) ……. tampers or in any other manner interferes with such article, or

(f) uses any report or certificate of a test ………… for the purpose of advertising ………… or

(g) ………… gives to the purchaser a false warranty …………,

he shall …………. be punishable—

(i) for the first offence, with imprisonment for a term which may extend to one year …………;

(ii) for a second offence with imprisonment for a term which may extend to two years and with fine: Provided that in the absence of special and adequate rasons to the contrary such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees;

(iii) for a third and subsequent offences, …………

(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the Court may direct …………”

3. The question that arises is whether the words “a second offence” occurring in Sec. 16(1)(ii) require that the previous offence must be one punishable under Sec. 16(1) of the Prevention of Food Adulteration Act or may be one punishable under any other Act dealing with adulteration of food, such as the U.P Pure Food Act (No. XXXII of 1950) Since the previous offences committed by the applicant in the present case were both offences punishable under the U.P Pure Food Act and not under the Prevention of Food Adulteration Act, the further question whether for bringing a case within Sec. 16(1)(ii) the previous offence must be not only an offence punishable under the Prevention of Food Adulteration Act but also offence of the same nature, i.e punishable under the same Sub-sec. (a), (b), (c), etc. of Sec. 16(I) does not arise. The question raised by the word “a third and subsequent offences” in cl. (iii) is similar to that raised by the words of cl. (ii). The “first offence”, the “second offence”, the “third offence” and the “subsequent offence” to be punished under cls. (1), (ii) and (iii) of Sec. 16(1) must obviously be offences punishable under the Act and if an offence is to be punished as a second offence (or a third or a subsequent offence) the problem is what previous offence will render it “a second offence.” It can be asserted without any hesitation that an exactly similar previous offence punishable under this very Act will render it so and it can be asserted with equal confidence that any previous offence such as that punishable under the Cattle Trespass Act or the Public Gambling Act or the Child Marriage Restraint Act will not fender it so. But what about a previous offence of the same nature as the one to be punished, but punishable under another Act (for example, the U.P Pure Food Act, as in the present case, or the Indian Penal Code, Secs. 272, 273 etc.)? What about a previous offence of a dissimilar nature punishable under the Prevention of Food Adulteration Act or a similar Act?

4. The first fact to be noticed is that no words contained in Sec. 16 give an express answer to the question raised above; what must be the nature of the previous offence is left to presumption. If an offence punishable under any section of the Cattle Trespass Act is not to be treated as a previous offence, there is no good reason for treating an offence punishable under an Act similar to the Prevention of Food Adulteration Act as a previous offence; no words of the section justify a distinction between a similar Act and a dissimilar Act. If an offence punishable under a dissimilar Act is not to be treated as a previous offence, one punishable under a similar Act also should not be treated so; in other words the previous offence must be one punishable under the Prevention of Food Adulteration Act.

5. Naturally when one is confronted with the words “previous offence” or “previous conviction” one contemplates a previous offence of the same nature or punishable under the same law or a previous conviction under the same section of the same Act. Had the Legislature intended that a previous conviction for an offence punishable under another law should be taken into consideration, one would have expected express or clear words to this effect in Cls. (ii) and (iii). If the language used in a statute is ambiguous it must be interpreted favourably to the subject and strictly against the State unless the object behind it would be defeated.

6. The scheme of Sec. 16 is that in the first part it declares certain acts (mentioned in Sub-Secs. (a), (b) etc.) as offences and prescribes the punishment for them in the second part and divides the punishment into three classes [mentioned in Cls. (i), (ii) and (iii)]. Cl. (i) applies for the first offence, i.e when the offence is committed for the first time. This offence must necessarily be the offence described in any of the Sub-Secs, (a), (b) etc. Cl. (ii) applies for a second offence, i.e for repeating an offence, for committing it second time. An offence is not repeated unless it was committed once before; it follows that for the applicability of the Cl. (ii) the previous offence must be one punishable under Sec. 16. If it was punishable under another law, even if the act was of a similar nature, the subsequent offence cannot be said to be a repetition of it. What is to be considered is the offence, not the act constituting it; the offence must be repeated and not the act. If an act was done when it was not punishable under Sec. 16 (because it was not in force then), and is repeated after the enforcement of the Act, which punishes it, it is not a repetition of an offence and the offence cannot be said to be a second offence. If the act done previously was not punishable under Sec. 16, it is immaterial if it was punishable under some other law.

7. The acts mentioned in Sub-secs. (a), (b) etc. can be divided into two classes, (1) of those mentioned in Sub-Secs. (a), (b) and (c) which are violations of the provisions of the Act (or a rule made thereunder) and (2) of those mentioned in the remaining Sub-section not connected with the Act (or a rule made thereunder). Any of the former acts would amount to an offence only if done after the enforcement of the Act; there could not possibly be any question of a violation of the Act before its enforcement. The other acts are made punishable merely on account of their nature and could have been punishable as offences even before the Act was enforced (if there was in force another Act punishing them). The act for which the applicant has been convicted falls under Sub-sec. (a); he sold adulterated milk in contravention of Sec. 7(i) of the Act which prohibit the sale of any adulterated food. It is to be noted that the offence that is punishable is not that of selling adulterated milk but that of violating a provision of the Act (prohibiting the sale of adulterated food). Had the offence been that of selling adulterated milk, it could have been committed at any time regardless of the enforcement of the Act, if there was in force another Act punishing it; but since it is that of violating a provision of the Act, it can be committed only after the Act came into force. Now though there are two classes of acts, which are made punishable under Sec. 16, the provisions regarding punishment for them contained in Cls. (i), (i) and (iii) are the same. So it can be said that whether the previous offence should be one punishable under the Act or not does not depend upon the nature of the offence to be punished. Whatever may be said in respect of punishment for an offence mentioned in Sub-Secs. (d), (e) etc. there can hardly be any doubt that in respect of punishment for an offence under Sub-Secs. (a), (b) or (c) the previous offence must have been one punishable under the Act in order to bring in the applicability of clauses (ii) and (iii). As I said earlier, it is not necessary for me to decide in this case whether if the offence to be punished is one mentioned in Sub-sec. (a), the previous offence must be punishable under the same Sub-section in order to bring in the applicability of Cl. (ii) or (iii), i.e whether if the previous offence was one punishable under Sub-sec. (b) or Sub-sec. (c) the offence to be punished under Sub-sec. (a) can be said to be “a second offence” within the meaning of Cl. (ii).

8. Nothing turns upon the fact that the language used in Sub-sec. (2) of Sec. 16 is different from that contained in Cls. (ii) and (iii). The structures of the provisions of Sub-sec. (1) and of Sub-sec. (2) are different; therefore there is the difference in the language. The provisions contained in Cls. (i), (ii) and (iii) are part of Sub-sec. (1), which mentions the various acts made punishable by the Act. The sentences prescribed in the clauses are for the offences punishable under the Act and the Legislature seems to have thought that the use of the words “the first offence,” “a second offence” and “a third offence” made it clear that the offence which was to be punished and the previous offence or offences were all offences punishable under the same Act. Clause (i) expressly provides for punishment of an offence punishable under the Act. The context in which the words “a second offence” and “a third and subsequent offences” are used shows that the second offence referred to in Cl. (ii) must be subsequent to the first offence referred to in Cl. (i) and that the third and subsequent offences referred to in Cl. (iii) must be subsequent to the second offence referred to in Cl. (ii). Cl. (ii) would not be applicable unless Cl. (i) had been applied once, i.e there had been a previous conviction under this very Act. It must have been on account of these inferences to be drawn from the context, that the Legislature did not use in sub-sec. (1) the same language as it used in sub-sec. (2).

9. I hold that the offence committed by the applicant for which he has been convicted in this case was neither a third nor even a second offence within the meaning of Cls. (iii) and (ii) of sub-sec. (1).

10. The sentence inflicted upon the applicant is exhorbitant. If Sec. 16(1)(ii) had applied there was no option for the Magistrate but to inflict the sentence but since he can be punished only under Sec. 16(1)(i) for which no minimum sentence is laid down, the present sentence can be reduced on the ground of being excessive.

11. I alter the conviction of the applicant from that under Sec. 16(1)(ii) to one under Sec. 16(1)(i) and reduce the sentence to the imprisonment already undergone (Sri P.N Misra states that he has undergone imprisonment for about six months) and a fine of Rs. 500/-, in default rigorous imprisonment for three months.

12. He is allowed two months to pay the fine in the court of the Magistrate concerned, failing which he shall surrender himself, and the Magistrate also shall issue a non-bailable warrant to take him in custody, to undergo the sentence in default.

13. (Sentence Reduced).

Chuttan v. State

Judgment Summary — Desai, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chuttan v. State

Comments