Jagdish Prasad Vs. State of U.P 
INSC 105 (15 April 1965)
15/04/1965 SARKAR, A.K.
DAYAL, RAGHUBAR BACHAWAT, R.S.
CITATION: 1966 AIR 290 1965 SCR (3) 806
Prevention of Food Adulteration Act,
1954-Higher punishment for "second offence"--Whether offence of the
same type or offence subsequent in time.
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] (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
[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.
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
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
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'
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 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 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 there under.
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 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
The appeal fails and it is hereby dismissed.