Pritam Singh Safeer, J.
(1) This appeal is directed against the acquittal of the respondent which he achieved in terms of the judgment passed by the trial court on 31st of October, 1967. The case against the respondent was that Public Witness . I Karan Singh Food Inspector had purchased from him on the 5th of October, 1966, 450 grams of red chillies and analysis of one of the samples thereof disclosed that they were adulterated. The Food Inspector gave that notice before making the purchase and paid the price and we have seen the receipt in respect thereof. He then proceeded to act in accordance with section 11 of the Prevention of Food Adulteration Act (hereafter called 'the Act'). The quantity purchased was divided into three samphes, which were transferred to three separate bottles which were sealed. One of them was given to the respondent. We have seen Exhibit P.C. wich document was executed by the respondent not only by signing it but also by thumb-marking it. This document has been relied upon by the learned counsel appearing for the respondent and it may be noticed that in terms the document states that Jaswant Rai Respondent had with him the concerned chillies for 'selling/conveying/ delivering/preparing for sale.'
(2) There have been cases where while executing the documents like Exhibit P.C. the vendors have recorded their protests disclosing their precise please. Wherever a food-stuff is not meant to be sold there is nothing which prohibits the vendor from protesting that it is not meant for sale. Where it is found lying at the place of business but is for domestic consumption or is to be used for some other purpose, that also can be stated by the vendor while executing a document like Exhibit P.C. This is being observed in view of the fact that the document contains five columns. In the first column the name of the official is to be mentioned and in Exhibit P.C. the name of Karan Singh Food Inspector appears. The second column requires that the name of the vendor with his full address may be mentioned. There the name of Jaswant Rai son of Gokal Chand and his address is mentioned. In the third column the date and place of collection and time are mentioned. The same are correctly stated. Then comes the fourth column. It requires that the nature of the article submitted for analysis be mentioned. There is a warning in the fourth column that the article which is being allowed to be purchased by the Food Inspector is to be subjected to analysis for finding out whether it is adulterated or not. The fifth column requires that the nature and quantity of preservative, if any, added to the sample should be mentioned. There are some food-stuffs to which preservatives have to be added before they are put into separate bottles or contniners as samples.
(3) It is worth noticing that there is a writing in Exhibit P. C. on which, the learned counsel for the respondent places reliance in order to urge that the food-stuff which was being sold was meant for the preparation of Dal Sev for sale. I would like to reproduce here the exact words :- 'Have stored red chillies for the preparation of Dal Sev for sale.' The writing by itself proves that the respondent admitted that he had at his premises the powder of red chillies which was purchased for purposes of analysis, but the assertion was that it was to be used for the preparation of Dal Sev.
(4) P.W. I who had made the purchase was supported not only by P.W. 5, another Food Inspector, but also by Public Witness . 4 Kalyan Singh an independent witness drawn from the public. There is nothing in the cross-examination of Public Witness s. 1 and 5 which may show that they were in any way inimical to the respondent. The depositions of Public Witness s. 2 and 3 were formal. Public Witness . 2 had filed the complaint and Public Witness . 3 had brought the license under which the respondent Jaswant Rai was carrying on his business.
(5) It is significant that Public Witness . 4 stated that when the purchase was made the chillies were lying in a canister. In his cross-exarirnation he again emphasised that the commodity which was purchased was taken out of the bulk lying in the canister. Likewise, Public Witness . 5 in his examination-in-chief stated that there was a box containing the powder of red chillies. As in the case of Public Witness . 4, when cross-examined, P-W. 5 affirmed that the powder of red chillies was sold out of a larger quantity contained in a box.
(6) After the prosecution evidence was closed the accused was examined under section 342 of the Code of Criminal Procedure, then in force. Before dealing with the said statement it must be noticed that Jaswant Rai respondent was tried along with the firm Messrs Gokal Chand Jaswant Rai and it is for that reason that while answering question No. 2 he stated :- 'The chillies were certainly lying with the firm, but the same were brought by Jaswant Rai for his domestic use. When asked as to whether he would produce evidence in defense or not the respondent Jaswant Rai replied in the affirmative and subsequently examined himself as D.W. 1. As a witness the stand taken by him was :- 'The chillies out of which the Food Inspector took the sample were for domestic use.' There is an apparent contradiction in the stand disclosed by Exhibit P.C. and that contained in the deposition, quoted above. In Exhibit P.C. Jaswant Rai never stated that the chillies out of which the Food Inspector had made the purchase were meant for domestic use.
(7) Bawa Shiveharan Singh, appearing for the respondent has urged that be would rely on Exhibit P.C. and that the statement made as D.W. I be ignored. The statement which Jaswant Rai made as D.W. I has its own significance. Exhibit P.C. was executed on the 5th of October, 1966, wKen the purchase was made. More than two years thereafter at the conclusion of the prosecution evidence subsequent to the making of his statement under section 342 of the Code of Criminal Procedure Jaswant Rai made a statement on oath before the court as a defense witness. It is a part of the record and its evidentiary value cannot be kept out of consideration.
(8) A close scrutiny of the evidence leads to the finding that the powder of red chillies was sold by Jaswant Rai to Public Witness . I on the 5th of October, 1966, and that it was found adulterated in terms of Exhibit P.E. the report of the Public Analyst. The respondent never invoked section 13(2) of the Act and this is a case in which the report of the Public Analyst remains unshaken. It is stated therein that the powder of red chillies was found adulterated due to the presence of foreign matter of starches to the extent of 10 per cent. We have been referred to the rules made under the Act which prescribe standard of quality and purity of various articles. The rules with which we are concerned is a .05.10, clause (b) :- '(b) Not more than 1.0 per cent foreign organic matter.' The Public Analyst found that there was adulteration due to foreign matter which was starchy in nature and the extent of which was 10 per cent. It has been urged on the basis of the judgment reported as M.C.D. v. Trilok Chand and Roop Chand, 1973 Prevention of Food Adulteration cases 106(1), that the case even if established is covered by the proviso in section 16(b) of the Act. The relevant part of the proviso is .- 'Provided that 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 (1) of section 2 of misbranded under sub-clause (k) of clause (ix) to that section; or The argument is that the adulteration, if any, was in excess of the prescribed limit of variability. The submission can best be appreciated in terms of the phraseology by which clause (1) in section 2 of the Act is coined. The clause is :- '2(1) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limit of variability;' The provision falls in two parts and it is the second part on which Mr. Shiveharan Singh relies. The learned counsel submits that a reference to the relevant rule permits I per cent of foreign matter in the powder of red chillies and what has been found is 10 per cent, thereforee, it is a case of variability of the prescribed limits. Even if that be so, the variability is of 9 per cent. Red chillies, if made into powder, do not permit variability in foreign matter. Why is I per cent of foreign organic matter permitted That amount is permitted for the reason that while powdering the red chillies, during the process some foreign organic matter to that extent may enter the powder. That gives a warning that the powder of red chillies must conform to the prescribed standard, and foreign organic matter must not exceed I per cent. In that situation alone the consumers can be saved from using adulterated powder of red chillies.
(9) In this case the trial court after discussing the evidence suddenly made the observation that in view of the decision made by the Punjab High Court while disposing of Criminal Revision in cases Municipal Corporation of Delhi v. Hukam Chand Criminal Appeal No. 137-D of 1961(2), and Baldev Raj Sain v. State, No. 309-D of 1965(3), respectively, the court was persuaded that the respondents before it deserved acquittal. We have been referred to a case in which the decision in Hukam Chand's(2) case was noticed.
(10) A Division Bench of this court in paragraph 3 of the judgment reported as Municipal Corporation of Delhi v. Jetha Nand, 1969 D.L.T. 605, noticed the decision in Hukam Chand's(2) case. We do not get much of importance from the observation made there, which was :- 'Reliance was placed on the decision of the Punjab High Court in Delhi Municipal Corporation v. Hukam Chand (2), that there being no storing of these commodities for the purpose of sale no offence had been committed.' The court then proceeded to discuss another aspect with which we are not concerned. It stands established that the powder of red chillies purchased on the 5th of October, 1966, by Public Witness . I in the presence of Public Witness s. 4 and 5 was adulterated as established by the report Exhibit P.E. .We are of the view that respondent Jaswant Rai should .not have been acquitted. It had been established against him that he had committed an offence punishable under section 7 read with section 16 of the Act. We do not find that any case was made out separately against the firm Messrs Gokal Chand Jaswant Rai. It was Jaswant Rai respondent who was at the premises and we are of the view that he was right in his deposition that he was the sole proprietor of the business functioning under the aforementioned name and style.
(11) At this stage Bawa Shiveharan Singh submits that if the view taken is that Jaswant Rai had committed the offence then he deserves to be given the benefit of the Probation of Offenders Act. We are aware of the decisions where benefit has been given of the provisions contained in the Probation of Offenders Act to the accused who are found guilty under the Prevention of Food Adulteration Act.
(12) In order to give benefit of the relevant provisions in the Probation of Offenders Act to any accused person, the nature of the offence, the character of the offender and circumstances of the case ought to be taken into consideration. Those are the statutory limitations prescribed by the Probation of Offenders Act. We are dealing with the respondent who signed Exhibit P.C. on the 5th of October, 1966, in which it stands stated that he was having at his premises the powder of red chillies for purposes of preparing Dal Sav. That is a preparation which results from the mixing of various things and red chillies are a very small pail of what is added to the others. It is a saltish preparation. The basic article of food used in this preparation is Basin i.e. gram powder. The same person, i.e. the respondent who had taken that stand in Exhibit P.C. prevaricated and as D.W. I while examining himself on oath he stated that the red chillies, out of which the sample had been purchased from his premises, were meant for domestic use. The character of the offender and the circumstances of the case do not justify that we should give any benefit of the provisions contained in the Probation of Offenders Act to respondent Jaswant Rai.
(13) In a case of food adulteration it is the life of the citizen which becomes concerned. The ordinary citizen is not supposed to be aware of the presence of adulteration in every kind of food-stuff. He presumes that what is being sold out to him is pvre and v.ill not injure his health. Adulteration is an offence against the future of the nation. While determining whether the benefit of the provisions contained in the Probation of. Offenders Act should actually be given or not, the nature of the crime is the prime consideration. In the case to the powder of red chillies there is enormous scope of adulteration. Red Chillies in their own nature produce powder which is red. It is possible to mix with it something which is red in powder form. The red chillies' powder is prepondrantly used in preparation of eatables. We cannot accede to the submission that we should in case of adulteration found in such a food-stuff give the benefit of the provisions contained in the Probation of Offenders Act.
(14) Finding Jaswant Rai guilty of the commission of the offence under section 7 read with section 16 of the Act we sentence him to six months rigorous imprisonment and a fine of Rs. one thousand. In case he does not pay the fine he will undergo rigorous imprisonment for another period of four months. Because there is the distance of several years between his acquittal and his conviction today, we are imposing the minimum sentence postulated by section 16(f) of the Act. We may, however, observe that in cases of Food Adulteration the Courts may take care that the sentences awarded should achieve the object of being deterrent to the others. With these observations the appeal is allowed.