K.S Hegde, J.— These are two connected appeals. They have been brought after obtaining special leave from this Court. They arise from Criminal Case No. 179 of 1965 in the Court of Sub-Divisional Magistrate, Hosdrug wherein the appellants were prosecuted under Sections 16(1), read with Sections 7 and 2(1)(a) of the Prevention of Food Adulteration Act. The trial court convicted both the appellants and sentenced each one of them to undergo simple imprisonment for six months and to pay a fine of Rs 1000 each, in default to further undergo simple imprisonment for three months. In appeal the learned Sessions Judge, Tellicherry acquitted the second accused, the appellant in Criminal Appeal No. 123 of 1967, confirmed the conviction of the 1st accused (appellant in Criminal Appeal No. 124 of 1967) but reduced the sentence to simple imprisonment for one month and a fine of Rs 100. Thereafter the 1st accused went up in revision under Sections 435 and 439, Criminal Procedure Code to the High Court of Kerala. That Court while admitting the Criminal Revision Petition, issued notice to the 1st accused requiring him to show cause why the sentence imposed on him should not be enhanced. At the same time it issued notice to the second accused to show cause why his acquittal should not be set aside. After hearing the Criminal Revision Petition, the High Court set aside the acquittal of the second accused and remitted the case to the Sessions Judge for rehearing; further it restored the sentence imposed on the 1st accused by the trial court.
2. The prosecution case is that the 1st accused is the owner of a grocery shop at Kumbalapalli. On the morning of May 1, 1965 when PW 1, the Food Inspector went to that shop, A-1 was not present but A-2 was in the shop attending to the sales. In the shop PW 1 found stocked for sale lac dhall which is also known as Kesari dhall. For the purpose of examination he, purchased from the second Accused 750 Grams of lac dhall; prepared three samples out of it; got them duly packed and sealed; gave one of those packets to A.2 At the same time PW 1 prepared a Yaddasht (Exh. P-1) detailing therein the steps taken by him, got it signed by A-2 and two panch witnesses, PWs 2 and 4. He also obtained a receipt from A-2 for the sample packet given to him. On examination of the dhall purchased, the analyst found the same to be lac dhall, the sale of which had been prohibited as it was injurious to health.
3. At the trial PWs 2 and 4 did not support the prosecution case. The trial court did not accept their evidence. Relieving the evidence of PW 1 that court convicted and sentenced the accused as mentioned earlier. In appeal as mentioned earlier, the learned Sessions Judge confirmed the conviction of the 1st accused but reduced his sentence solely on the ground that he was not present at the time of, the sale. While dealing with the case of the 2nd accused he did not disturb the finding of the trial court that he was the person who sold the dhall in question to PW 1. But yet he acquitted him on the ground that there was no satisfactory evidence to show whether A-2 was the partner or the selling agent of the 1st accused.
4. The judgment of the learned Sessions Judge on the face of it is manifestly illegal. For the purpose of a conviction under the charge on which A-2 was tried, it was immaterial whether he was an agent or a partner ofA-1. Once it is proved that it was he who sold the adulterated article, he was liable to be convicted under Section 16(1), read with Section 7 of the Prevention of Food Adulteration Act. The contention of Mr Sanghi, learned Counsel for the appellants that under those provisions only the owner of the shop could be convicted is a wholly unsustainable contention. It is not necessary to examine that contention is detail in view of the decision of this Court in Sarjoo Prasad v. State of U.P (1961) 3 SCR 324
5. The ambit of the powers of the High Court under Sections 435 and 439, Criminal Procedure Code, in dealing with the cases of acquittal has been explained by this Court in more than one decision see D. Stephens v. Hosibolla (1951) SCR 284; Logendranath Jha v. Shri Polailal Biswas (1951) SCR 676; K. Chinnaswamy Ready v. State of Andhra Pradesh (1963) 3 SCR 412 and Mahendra Pratap v. Sarju Singh AIR 1968 SC 707. In view of these decisions it is not necessary to go into that question again but suffice it to say that in this case, the judgment of the learned Sessions Judge in so far as it dealt with the case of the second accused is a manifestly illegal one and there has been a flagrant miscarriage of justice. Therefore the High Court was well within its powers in setting aside the same.
6. We see no force in the contention of Mr Sanghi that though the judgment of the High Court purports to leave open the final decision as regards A-2 to the appellate court but yet because of the conclusions reached by it, that court has no option before it but to convict him. The High Court had to give reasons for setting aside the acquittal of A-2. No grievance can be made of that fact. The High Court has been careful enough to warn the trial court to rehear the case without being prejudiced by its judgment. We have no doubt that that court will examine the case afresh with an open mind.
7. Mr Sanghi complained that the High Court's interference in the matter of sentence imposed on the 1st accused was an uncalled for interference with the discretion exercised by the trial court. Here again Mr Sanghi is not right. Section 16(1) of the Prevention of Food Adulteration Act prescribes a minimum sentence of six months imprisonment and a fine of Rs 1000. It is true as provided in the proviso to that section, the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for less than six months or a fine of less than Rs 1000. The trial court has imposed the minimum sentence prescribed under Section 16(1). The only reason given by the learned Sessions Judge for reducing that sentence is that the 1st accused was not present when the sale was effected. This is not a relevant consideration under Section 16(1). At any rate it cannot be considered as an “adequate or special reason”.
8. The contention that the complaint was not validly instituted has no basis. PW 1 deposed to the fact that he had been authorised to file the complaint. That evidence has not been challenged in cross-examination. The High Court has referred to the notification authorising the Food Inspectors to file complaints under the Prevention of Food adulteration Act. That notification was issued under Section 20 of that Act. Therefore the complaint must be held to have been validly instituted.
9. For the reasons mentioned above these appeals fail and they are dismissed.