City Corporation of Trivandrum Vs. K.J. Mathew - Court Judgment

Sadasivan, J.

1. This Criminal Revision Petition raises an important and interesting question; the question is whether the court is competent under the proviso to Section 16 of the Prevention of Food Adulteration Act--Act 37 of 1954--as amended by Act 49 of 1964 (hereinafter referred to as the Act) to award a sentence of fine alone of less than Rs. 1,000. The punishment is provided in Clause (f) of Sub-section (1) of Section 16, which reads:-

'(1) If any person--

X X X X X X(f) Whether by himself or by any other person on his behalf gives to the vendor a false warranty on writing in respect of any article of food sold by him, 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 a fine which shall not be less than one thousand rupees: Provided that--

(i) if the offence is under Sub-section (i) of Clause (a) and is with respect to article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2 or misbranded under Sub-clause (k) of Clause (ix) of that section; or

(ii) if the offence is under Sub-clause (ii) of Clause (a), the court may for any adequate and special reasons 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'.

2. Learned counsel for the accused in commenting on the scope of the above proviso would point out that in cases where extenuating circumstances exist and the offence is one falling under any one of the categories mentioned in the proviso, the court is empowered to award a lesser sentence and the sentence so awarded can either be a sentence of imprisonment for less than six months or a sentence of fine of less than one thousand rupees or a sentence of both imprisonment for less than six months and fine of less than one thousand rupees. It would, therefore, be competent for the court to award a sentence of fine alone unassociated with a term of imprisonment.

3. In the case on hand the accused has been convicted under Sections 7(i) and 16 of the Act for selling adulterated Ice-cream and sentenced to pay a fine of Rs. 200. The reasons for taking a lenient view are stated by the learned Magistrate in the following words:

'Regarding punishment. I am inclined to take a lenient view since the addition of starch which has made the sample of 'Icecream' adulterated, is allowed In the preparation of 'mixed Ice-cream' even according to Pw. 1. even though it is legallv prohibited in 'Ice-cream' which is involved in that have and I consider that the technicaladulteration in question is not so grave and abominable as to be visited with the extreme punishment of compulsory imprisonment to meet the ends of justice.' We do not propose to go into the merits of the above reasoning. The point with which we are directly concerned in the present petition, is whether the court is competent even granting that there are adequate and compelling reasons to justify a lenient view being taken, to award a sentence of fine alone of less than one thousand rupees; in other words, whether the offence could be wiped out by a mere sentence of fine only. A cursory reading of the proviso would give us such an impression; but on closer scrutiny it would appeal beyond the possibility of doubt that, that is not what is intended by the proviso. What really the proviso is intended to convey is that in appropriate cases the court shall have the power to award a sentence of imprisonment and fine less than the minimum prescribed in the section The court may for reasons to be mentioned in the judgment award 'a sentence of imprisonment of less than six months, or a fine of less than one thousand rupees or a sentence of both imprisonment of less than six months and fine of less than one thousand rupees'

The enacting clause, as is patent, has made the punishment conjunctive; that is to say, that the punishment shall always take the form of imprisonment with a fine super-added. That this is the legislative intent is gatherable from the very wording of the enacting section and that cannot be deemed to have been taken away and the punishment made disjunctive by the proviso. The legislative intent can be gauged further from the corresponding provision in the old section. We are extracting the section as it stood before the amendment Section 16(1)(g) reads: -

'If any person--

XX XX XX(g) whether by himself or by any person on his behalf gives to the purchaser a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable--

(i) for the first offence, with imprisonment for a term which may extent to one year or with fine which may extend to two thousand rupees, or with both:

(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 reasons to the contrary to be mentioned in the judgment of the court 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, with imprisonment for a term which may extend to four years and with fine. Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees.'

4. It is obvious that the amendment of the section became necessary since the punishment prescribed therein was found inadequate to cope with the increasing tendencies indulged in adulteration; in other words, punishment was thought not adequate enough to combat the social evil which was sought to be eradicated by the measure. It is idle and out of tune to presume that from such a pitch the legislature would all on a sudden slip down and provide a measure for the offender to escape by payment of fine alone and that too a trifling line of even one rupee if the court is so inclined. The amended provision makes it clear that the legislature did not want to discriminate between offender and offender Under the old section, on the other hand, the punishment was individualised on the basis of the character and antecedents of the offender and classifying them as first offender, second offender, third offender and further repeaters. This individualisation has totally been done away with in the amended Act and from that it could legitimately be inferred that the intention of the legislature was, firstly to make the punishment more deterrent; and secondly to impose it uniformly without any reference whatever to the status or quality of the offender The old Act reveals also another feature which has not been adhered to in the amended Act, and that is that even in the case of repeaters the minimum is prescribed only in the proviso. In the substantive section the maximum alone is given, i.e. 'with imprisonment for a term which may extend to four years and with fine' In the proviso, on the other hand, it is stated that:--

'In the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees '

5. In the amended section, on the other hand, an irreducible minimum has been prescribed in the body of the enactment itself in respect of all categories of offenders, and the court is given the power under the proviso to reduce the minimum and in doing so the court has to take into consideration the nature of the offence only, and not the character of the offender. In other words, under the amended section, punishment is individualised according to the gravity of the offence alone, personality of the offender being no consideration at all. The type of offences in respect of which the court is given the power to go below the minimum has been categorised in the proviso and they are:-

(1) An offence falling under Sub-clause (i) of Clause (a) and which is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of section 2 or misbranded under Sub-clause (k) of Clause (ix) of that section The articles coming under Clause (a) (i) are those that are adulterated or misbranded of the sale of which is prohibited by the food (Health) authority in the interest of public health, and those coming under Section 2(i) are those of which 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 limits of variability and

(2) Offences falling under Clause (a) (ii) and they are in respect of articles of food other than articles of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act, or of any rule made thereunder. In these categories of offences the Act would presume that culpability on the part of the offender is of a lesser degree and in such cases the court is given the discretion to go below the minimum in the matter of punishment for adequate and special reasons to be mentioned in the judgment: but in thus going below the minimum the court will have to keep in view the intended or avowed function of the enactment

6. By means of the proviso the main section cannot totally be obliterated and we have already seen in the present case that the purpose of the enactment is to introduct a conjunctive punishment (of imprisonment and fine combined), and in awarding a lesser sentence under the proviso this cardinal purpose must not be lost sight of.

'The proper function of a proviso -- is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment a portion which, but for the proviso, would tall within the main enactment. Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment 'It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso' Therefore, it has to be construed harmoniously with the main enactment'

Vide Commr of Income-tax v Indomercantile Bank Ltd AIR 1959 SC 713

7. The following quotation appearing in Mohammed v. Regional Transport Authority, Trichur, 1957 Ker LT 879 at p 882-(AIR 1958 Ker 140 at p. 1421 will be instructive in this connection:-

' in (1947) 2 All ER 182 Lord Greene, M. R. said: 'It is common learning that the object of a proviso is to cut down or qualify something which has gone before and:

'It would be contrary to the ordinary operation of a proviso to give it an effect

which would cut down those powers beyond what compliance with the proviso renders necessary.' '

8. Over a hundred years earlier the Supreme Court of the United States observed:--

'Where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly and takes no case, out of the enacting clause which does not fall fairly within it? terms. In short, a proviso carves special exceptions only out of the enacting clause; and those who set up any such exception, must establish it as being within the words as well as within the reason thereof.' ( (1841) 15 Pet 141).

9. It follows, therefore, that a proviso has to be considered in relation to the main enactment and should not be permitted to obliterate or swallow up the enactment itself. We have seen already that the sentence intended to be awarded is of a conjunctive nature and that object cannot be allowed to be defeated by providing a disjunctive punishment in the proviso. The general rule of construction is that:

'Exceptions and reservations are strictly construed and affirmative rights cannot be based upon them unless by necessary implication.' (Vide Halsbury's Laws of England 3rd Edn Vol 36. p 400) Sometimes the proviso might assume the nature of an independent enactment; but even in such circumstances it has to be construed as a limitation or qualification upon the otherwise general application of the statute. Crawford in his 'Statutory Construction' 1940. p 604 deals with this aspect of the matter in the following way:

'Even though the primary purpose of the proviso is to limit or restrain the general language of a statute the Legislature, unfortunately, does not always use it with technical correctness. Consequently, where its use creates an ambiguity, it is the duty of the court to ascertain the Legislative intention, through resort to the usual rules of construction applicable to statutes generally, and give it effect even though the statute is thereby enlarged, or the proviso made to assume the force of an independent enactment, and although a proviso as such has no existence apart from the provision which it is designed to limit or to qualify. It should also be construed in harmony with the rest of the statute '

10. In any view, therefore, the proviso cannot be assigned a scope and purpose not contemplated by the main enactment and is always to be construed harmoniously with the main enactment. It was pointed out by the learned counsel on behalf of the accused that In penal statutes the proviso should be liberally construed, and as far as possible in favour of the accused. We are perfectly aware of this rule of construction; but ongiving our best consideration to the matter we are satisfied that the interpretation sought to be put on the proviso by the accused cannot be reconciled with the body of the statute. We are, therefore, obliged to disregard it.

11. In applying the proviso the court has to bear in mind that the conjunctive nature of the punishment should in any event, be maintained. The result is that for adequate and special reasons to be mentioned in the judgment, the court may award a sentence of imprisonment of less than six months and a fine not less than one thousand rupees, or imprisonment for a term not less than six months and a fine 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. We have to read into the second category of the above reduced sentence in the proviso, a term of imprisonment also so as to put it in harmony with the main enactment. In fact it is implied in the language itself. It could never have been intended by the legislature, considering the general trend of the enactment, that the offender under any circumstance could be given the facility to escape with a fine alone.

12. The learned Magistrate in the present case was not in order in having awarded a sentence of fine alone. The sentence awarded is hence set aside and the case is remanded to the court below for a re-thinking in the light of the observations made above and awarding appropriate sentence taking into consideration the extenuating circumstances put forward in the case after hearing both parties The Revision Petition is thus allowed.

Mathew, J.

13. I agree. I do not think that the Legislative purpose was to enact a substantive provision changing the cumulative character of the punishment provided in Clause (f) of Sub-section (1) of Section 16 of the Act in the garb of a proviso, but only to give a discretion to the Court in appropriate cases to award a lesser sentence of the same character. It was strenuously argued that the language of the proviso can only lead to the conclusion that the legislative aim was to give the Court a discretion to impose either a sentence of imprisonment for a term of less than six months or of fine of less than Rs 1000, or both of imprisonment for a term of less than six months and fine of less than Rs. 1,000 But, if the proviso is read with reference to Clause (f) of Sub-section (1) of Section 16, it would be clear that the legislative purpose was only to give the court the power in appropriate cases to impose a sentence of imprisonment for a term of less than six months or a fine of less than Rs. 1,000 without deviating from the cumulative character of the minimum punishment as envisaged in Clause (f)

When the proviso says that the court may for adequate reasons impose a sentence of imprisonment for a term of less than sixmonths or fine of less than Rs. 1,000, one has to read it with reference to the main enactment and not with the idea that the aim was to change the cumulative character of the punishment. The language of the proviso is apt to meet the three possible contingencies which may arise, namely, where a court is inclined to impose a sentence of imprisonment for a term of less than six months and a fine of Rs. 1,000; a case where the court is inclined to impose a sentence of fine of less than Rs. 1,000 and of imprisonment for a term of six months; and a case where the court is inclined to impose a sentence both of imprisonment for a term of less than six months and a fine of less than Rs. 1,000. If the construction suggested by the petitioner is accepted it may follow that the court acting under the proviso will be incompetent to impose a sentence of imprisonment for a term of less than six months and a fine of Rs. 1,000, or a sentence of fine of less than Rs. 1,000 and imprisonment for a term of six months, for, the last clause in the proviso only authorises the court to impose a sentence both of imprisonment for a term of less than six months and of fine of less than Rs. 1,000. This, I think, would be an anomaly.

I cannot perceive any reason why a court having been given a power to impose a sentence of imprisonment for a term of less than six months and a fine of less than Rs. 1,000 should be denied the power to impose a sentence of imprisonment for a term of six months and a fine of less than Rs. 1,000 or a sentence of imprisonment for a term of less than six months and a fine of Rs. 1,000. Keeping in view the fact that normally the function of a proviso is to except some cases out of the enacting clause. I think, the proviso cannot be construed to alter the cumulative character of the punishment in the enacting clause but only to lessen the rigor of the legislative minimum fixed in the enacting clause.