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PETITIONER: JAGDISH PRASAD

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 15/04/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAYAL, RAGHUBAR BACHAWAT, R.S.

CITATION:  1966 AIR  290            1965 SCR  (3) 806

ACT: Prevention of Food Adulteration Act, 1954-Higher punishment for  "second offence"--Whether offence of the same  type  or offence subsequent in time.

HEADNOTE:     The  appellant  having  been once  convicted  under  the Prevention  of  Food  Adulteration  Act,  1954  for  keeping foodstuff  for sale in a container without covering it,  was for a second time convicted for selling foodstuff which  had been  coloured  with a prohibited dye. Treating  the  latter conviction  as a "second offence" under s. 16(1) of the  Act the  Trial  Court  sentenced  the  appellant  to  two  years imprisonment. Having failed to get redress in the High Court he appealed to this Court by special leave.     It  was  contended on behalf of the appellant  that  the "second offence" contemplated by s. 16(1) was an offence  of the  same  kind as the first and not any offence  under  the Act.     HELD:  (i)  The word second in  the  expression  "second offence" in s. 16(1) means second in time and not second  of the same type. The section does not say "second offence"  of the same type; the latter words are not there. On the  other hand  from  the  phrase ’subsequent offences’  used  in  the section in respect of offences subsequent to the third  one, it  is  clear that the words ’first’, ’second’  and  ’third’ were  intended  to  indicate  things   happening  one  after another in point of time.  [808 B]     The  object  of the sub-section is  clearly  to  prevent repetition  of  offences.  That  is  why  for  the   offence subsequently  committed a heavier sentence is  provided.  No object  could  have  been  served by  seeking  to  stop  the repetition  of  the  same  type of conduct only. [808 E-F]     (ii)   There   is   no  foundation  in   the   Act   for distinguishing between trivial and serious offences and then arguing  that  the Act could not have intended to  impose  a heavier punishment for a second offence which might be of  a less  serious  nature than the first. The Act  provides  the same   punishment  for  each  offence  under  it.   If   the punishment  is  the same, it would follow that  the  statute considered them to be of the same seriousness. [808 H]

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 (iii) The second offence must be  an offence under the Act although  it  is not specifically so stated.  Section  16(1) says  that if any person does any of the acts  mentioned  in cls. (a) to (g) in it, he shall be punishable for the  first offence with a certain penalty, for the second offence  with a higher penalty, and for the third a still higher  penalty. It is clear that the acts or omissions mentioned 807 in  the different clauses constitute the offences for  which the penalties are provided. From this structure of the  sub- section   the  implication  necessarily  arises   that   the penalties  were  imposed for offences under  the  Act  only. [809 E-F]     City  Board,  Saharanpur v. Abdul Wahid,  A.I.R.  (1959) All. 695, Chuttan v. State, A.I.R. (1950) All. 629 and In re Authers, (1889), L.R. 22 Q.B.D. 345, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  43 of 1965.     Appeal  by  special leave from the  judgment  and  order dated  November  10,  1964 of the Allahabad  High  Court  in Criminal Revision No. 2097 of 1963. B.C. Misra, for the appellant. O.P. Rana, for the respondent. The Judgment of the Court was delivered by-     Sarkar,   J.  This  appeal   raises   a   question    of construction  of  sub-s. (1) of s. 16 of the  Prevention  of Food  Adulteration Act, 1954. The sub-section  in  providing for punishment for breaches of the Act states, "for a second offence,  with imprisonment for a term which may  extend  to two years and with fine". In respect of the first offence it provides for a smaller sentence. The question is whether the appellant was liable to punishment for a second offence. The order  of  this Court granting leave to appeal  confined  it only to that question.     It  appears  that on an earlier occasion  the  appellant kept fonds-tuff for sate in a container without covering  it as  required by sub-r. (3) of r. 49 of the rules made  under the  Act  and  was  thereupon  convicted  under  s.  16  and sentenced to a fine of Rs. 40/- as tot a first offence. This time  he has been convicted for selling foodstuff which  had been coloured with a dye the use of which was prohibited  by r. 28 of the same rules.     Learned  counsel  for  the  appellant  stated  that  the present was not a second offence. If we have understood  his arguments  correctly, and we confess to some  difficulty  in understanding   them,  he  said  that  the  second   offence contemplated  is an offence constituted by the same kind  or type of act for which he had been convicted under the Act on an  earlier  occasion.  According to  him,  if  the  present conviction was for keeping foodstuff intended for sale in  a container  not covered as required by sub-r. (3) of  r.  49, then  only it would have been for a second offence,  but  as the conviction in the present case was for selling foodstuff coloured  with  prohibited  dye, it was  not  for  a  second offence.     This  contention does not seem to us to  be  acceptable. This  real question is, What do the words  ’second  offence’ mean? Learned 808 counsel for the appellant referred us to Webster’s New World Dictionary  where one of the meanings of the  word  ’second’

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has  been stated to be ’of the same kind as  another’.  That meaning  cannot  be  attributed to that  word  in  the  sub- section.  It  increases the penalties as  the  offences  are ’first’,  ’second’ or ’third’. Thus it states, "for a  third and  subsequent  offences, with imprisonment  for  a  term,, which  may  extend to four years and with  fine".  The  word ’subsequent’ makes it clear that the words ’first’, ’second’ and  ’third’ were intended to indicate things happening  one after  another  in point of time. Sub-section (2) of  s.  16 also  leads to the same conclusion. It says, "If any  person convicted  of  an  offence under this  Act  commits  a  like offence  afterwards",  the  subsequent  conviction  and  the penalty  imposed with his name and address may be  published in a newspaper at his expense. The word "afterwards" clearly indicates  that  the  statute   was  contemplating  offences committed  subsequently  and was indicating  a  sequence  of time.  In the dictionary to which learned counsel  referred, the  meaning  on  which  he relies  is  illustrated  by  the following sentence, "There has been no second  Shakespeare". It  seems plain to us that the meaning conveyed by the  word ’second’  in this sentence cannot be attributed to the  word ’second’ as used in the sub-section.     Then  as  regards the word "offence" in  the  expression "second offence", we find no justification for confining  it to  an  offence  constituted by the same  type  or  kind  of conduct  as the previous offence. The sub-section  does  not say "second offence" of the same type; the latter words  are not  there.  The  object of the sub-section  clearly  is  to prevent repetition of offences. That is why for the  offence subsequently  committed a heavier sentence is  provided.  We cannot imagine what object would have been served by seeking to stop the repetition of the same type of conduct only. The Act no doubt intends to prevent the doing of various acts by punishing  them. That object is better served by imposing  a heavier penalty when a person repeats any of such  offensive acts.. The gravamen of the charge of a second offence is the repetition  of  any  offence  under  the  Act  and  not  the repetition of one of the various types of offences mentioned in  it.  Any interpretation which would not  carry  out  the object  of the Act would be unnatural. We, therefore,  think that  the words "second offence" mean any offence under  the Act  committed by a person after his conviction earlier  for any one of the offences punishable under the Act.     It was said that it would be strange if the Act intended to  impose a heavier punishment for a second  offence  which might be ’of a trivial nature while the first offence  which might  have  been  of a serious nature  entailed  a  lighter punishment.  This  contention  is fallacious.  There  is  no foundation in the Act for distinguishing between trivial and serious  offences, for the Act provides the same  punishment for each offence under it. If the punishment is 809 the  same, it would follow that the statute considered  them to be of the same seriousness. The weakness of this argument will  further appear if we consider a case where  the  first offence  was  of  what is called a trivial  nature  and  the second, of a serious nature though constituted by  different acts. It would be equally strange if the Act  in such a case contemplated  the  same punishment for  the  subsequent  and serious  offence  as  would be the case  if  the  subsequent offence  was not a "second offence" . This contention  lends no  support  to  the  interpretation  suggested  by  learned counsel for the appellant.     Learned counsel then said that the word "offence" has to be understood as defined in s. 2(38) of the General  Clauses

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Act,  1897,  and therefore means any act  or  omission  made punishable  by  any law for the time being in force.  If  we substitute  this  definition  for  word  "offence"   in  the provision now under consideration, it will mean an act  made punishable  by  the law. That law must be the  present  Act. This does not assist learned counsel’s contention at all; it really goes against him.     The  word "offence" no doubt refers to an offence  under the Act. It cannot possibly mean any offence under any other Act.  This view has invariably been taken in all  the  cases which  have been cited to us: see City Board, Saharanpur  v. Abdul Wahid(1) and Chuttan v. State.(2) In In re  Authers(3) it  was  said, "where the legislature passes a  statute  and imposes a penalty of 501. for a first offence, it must mean, in  the absence of express words to the contrary,  that  the conviction for the first offence must be under that Act, and the  second  conviction  under  the same  Act;  if  it  were otherwise,  it would be idle to introduce the warning  of  a lower penalty for the first offence, and to impose a  higher penalty   for   the   second."  This   case   supports   our interpretation  of the words "second offence" based  on  the object of the Act.     Learned  counsel for the appellant no doubt agrees  that the  second offence must refer to an offence under  the  Act but  he says that since it would amount to adding the  words "under  the Act", it would justify the addition  of  further words implying that the second offence had to be of the same type  as the first. This is a wholly  unfounded  contention. the offence contemplated in the expression "second  offence" has to be under the Act because that arises from the  object of  the Act and. as we shall later show, from the  necessary implication of the structure of the sub-section. There is no such  reason to confine the second offence to an offence  of the same type.     We  have so far been dealing only with that  portion  of sub-s.  (1)  of  s. 16 which concerns the  penalty  for  the second  offence. Considering the sub-section as a  whole  we find that it supports the (1) A.I.R. 1959 All. 695. (2) A.I.R. 1960 All. 629. (3) (1889) L.R. 22 Q.B.D. 345, 349. 810 interpretation of the expression "second offence" which  has appealed  to us. It says that if any person does any of  the acts  mentioned  in  cls.  (a) to (g) in  it,  he  shall  be punishable for the first offence with a certain penalty, for the second offence with a higher penalty and for the third a still higher penalty. It is clear that the acts or omissions mentioned  in the different clauses constitute offences  for which the penalties are provided. From this structure of the subsection  the  implication  necessarily  arises  that  the penalties were imposed for offences under the Act only.  Now cl.  (a)  deals with a person importing,  manufacturing  for sale, storing, selling, or distributing any article of  food in  contravention  of the provisions  of the Act or  of  any rule made  thereunder. This clause contemplates the breaches of  various provisions of the Act and the rules,  which  are numerous.  It  covers  various  types  of  conduct,  act  or omission, each of which is punishable and each of which  is, therefore, an offence. Turning next to that part of the sub- section  which  prescribes penalties, we  find  it  provides increasing degrees of punishment for the second offence  and the  third  and  subsequent offences.  It  follows  that  an offence contemplated in this part of the statute and with it we are now directly concerned-would be constituted by any of

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the acts which would come within el. (a) and likewise within all the other clauses following it. We have pointed out that the  acts  and omissions contemplated there are  of  diverse kinds. The words "second offence" must, therefore, mean  any act which is an offence under any of the clauses in the sub- section  which has been done later in point of time after  a conviction  for an offence under the Act, no matter  whether the  acts or omissions constituting the two offences are  of the same type or not. The appellant must, therefore, be held to  have committed the second offence within the meaning  of the  sub-section on the present occasion and was  liable  to have  the  heavier punishment awarded to him.  The  sentence awarding such punishment is unexceptionable. The appeal fails and it is hereby dismissed.                              Appeal dismissed. 811