B.R. James, J.
1. Piarey Lai is a milk-seller of Agra City. On the 18th July 1956 the Food Inspector took a sample of the milk which he was selling in a can. On analysis the Public Analyst reported that the sample was deficient in fat content by about 23 per cent, and that it contained 39 per cent, of added water. In consequence the Medical Officer of Health filed a complaint against him for an offence Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (Act XXXVII of 1954). The complaint specifically mentioned that he had a previous conviction for a similar offence, namely, that he had been fined Rs, 250/- on 31-8-1956 by Sri R. P. Srivastava, Magistrate I class, Agra, Under Section 7/16 of the Prevention of Food Adulteration Act, 1954, for milk adulteration.
At the trial he was represented throughout by counsel. The Food Inspector was the solitary witness for the prosecution. In his deposition, after mentioning the relevant facts of the offence at issue, he stated: "The accused was fined Rs. 250/- on 31-8-56 Under Section 7/16 P F. A. in the court of Sri R, P. Srivastava, He was fined for adulteration of milk". . Not a single question was put to the Inspector in ' cross-examination. Examined Under Section 364 Cr. P.C. Piarey Lai admitted the sale of his milk sample to the Food Inspector and pleaded that the milking had been done by his children.
He was then asked this question: "Were you fined Rs. 250/- for adulteration of milk Under Section 7/18 P. F. A. Act from the court of Sri R. P. Srivastava on 31-8-56?" He replied: "I was fined. I do not remember the amount of the fine". The next question was: "Why should you not be punished Under Section 7/16 P. F. A. Act?" He answered: "I did not commit the offence. It was due lo my young children who had the milking done". He added that he would not produce defence. Thereupon the Magistrate framed the following charge against him:
That you on or about 18-7-1956, at about 8 p. m, in mohalla Moti Katra P.S. Kotwali Agra were found selling milk of cow and buffalo, the sample of which was taken by the Food Inspector on payment of price winch was on analysis by the Public Analyst found adulterated and contained deficiencies of fat of about 23 per cent and contained 39 per cent water and previous to this you were convicted Under Section 7/16 and sentenced to a fine of Rs. 250/- on 31-8-56 thereby committed an offence punishable Under Section and within 7/16 UXa$0 of P. F. A. Act of 1954. And I hereby direct that you be tried by the said Court on the said charge.
When this charge was read over and explained to him he pleaded guilty to it. He did not; lead any evidence in defence. The learned Magistrate then delivered judgment the operative part of which was in these words:
This is clear that this accused had been convicted previously Under Section 7/16(1)(a)(ii) of Act 37 of 1954 and hence he deserves enhanced sentence, for the second offence. I however think, that the sentence of one year and a fine of Rs. 2,000/- will be too severe as contemplated in Section 16(g)(ii) of P. F. A, Act of 1954 for a milk seller. As his business does not appear to be on a high scale, I award him a sentence of six months R. I. and a fine of Rs. 1,000/-only. In default of payment of fine, he will undergo further period of 6 months R. I.
Thereupon Piarey Lai lodged an appeal against his conviction and sentence. It came up for hearing before the Additional Sessions Judge. The learned Judge heard it both on the propriety of the conviction and on the quantum of punishment. He affirmed the correctness of the conviction, though in this connection we should like to observe that he does not appear to be aware of the provisions of Section 412 Cr. P.C. under which no appeal against a conviction is competent where the accused has pleaded guilty to the charge, as was admittedly the case here.
On the question of sentence the argument of Piarey Lai's counsel was that his previous conviction had not been proved according to law. This argument found favour with the learned Judge, who following the decision of Din Mohammad, I. in Sardar Ahmad v. Emperor A.I.R. 1934 Lah 693 and holding that the procedure laid down by Section 511 Cr.P.C had not been followed as neither the copy of the judgment of the previous conviction nor any certificate recording the same had been produced by the prosecution, reduced the sentence to a mere fine of Rs. 400/-.
(2-3) The Medical Officer of Health has come up to this Court in Revision and prays that the sentence passed by the learned Judge on Piarey Lai be enhanced, and his contention is that it has been proved from the record that this accused had been previously convicted of milk adulteration and that inasmuch as the present was his second offence he was liable to enhanced punishment as prescribed by Section 16(l)(a)(ii).
4. We have no doubt that the learned Judge has misunderstood the Lahore ruling, for that is merely an authority for the proposition that a previous conviction relied upon for enhanced punishment must be proved in accordance with law a proposition which we fully endorse; the ruling nowhere lays down that Section 511 prescribed the only mode of proving the previous conviction. Nor is the learned Judge right in thinking that Section 511 provides the only procedure for proving such a fact. This evident from the very words "in addition to any other mode provided by any law for the time being in force" which occur in the Section. It is open to the prosecution to prove a previous conviction not only by acting upon Section 511 but by following any other law.
5. Now, the Indian Evidence Act is such a law. Under that Act a fact can be proved by oral evidence or by documentary evidence or by admission. In the case before us there is no doubt no documentary evidence to establish Piarey Lai's previous conviction. But there is clear oral evidence, for, as mentioned earlier, the Food Inspector testified to it on oath and his testimony was left unchallenged. There is also the admission of Piarey Lai himself on the point, for in his statement at the trial he admitted being fined for milk adulteration; no doubt he tried to make out that he did not remember the amount of the fine, but what was material was not the amount of the fine but the fact of the previous conviction: on the latter there was no ambiguity in his statement. It clearly follows that the previous conviction has been proved both from unchallenged oral testimony and from the admission of Piarey Lai himself.
6. It would also be instructive to refer to the definition of "proof given in Section 3 of the Evidence Act. This provision enacts that a fact is said: to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Now, in the complaint the full particulars of Piarey Lal's previous conviction were clearly given. The same were stated on oath by the Food Inspector. There was no denial on Piarey Lal's part; on the contrary he admitted being fined for milk adulteration but allege" that he did not remember the amount. The charge framed against him decided the previous conviction. He pleaded guilty to it and declined to adduce evidence in defence. It is inconceivable that with all these matters present before the Court, there could be the slightest justification for the view that the previous conviction was not "proved" according to law.
7. Having failed on these points, Piarey Lai's learned Counsel has argued before us that he is an uneducated person, hence he might not have under-stood the question put to him with regard to his-previous conviction, and learned Counsel has suggested that in order to place the matter beyond dispute his retrial should be ordered. We cannot agree. Earlier in this judgment we have set out all the material facts. We cannot believe that there could have been any doubt in Piarey Lai's mindand we cannot omit to note that he was represented by counsel throughoutwith regard to the true position-. Nor could there be any possibility of misunderstanding on his part when the question put to him specifically was whether or not he had been fined on the 31st August 1956 by Sri R. P. Srivastava for adulteration of milk. His trial was a perfectly fair one. and nothing occurred in the course of it which, might have prejudiced his defence in the slightest. Consequently we cannot for a moment endorse the proposal that ho be tried afresh.
8. Section 16 provides that for a second offence the offender shall be liable to imprisonment for a term which may extend to two years and to fine, and a Proviso is added that in the absence of special and adequate reason 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 Rs, 2,000/-. In his- judgment the learned Magistrate has given reasons justifying the imposition of a lesser sentence, to wit, a sentence of 6 months' rigorous imprisonment and a fine of Rs. 1,000/-. We are unable to hold that in fixing the quantum of punishment he has not used his discretion judicially. We therefore consider that, in view of the fact that this was Piarey Lai's second offence, the sentence which the learned Magistrate passed was a perfectly reasonable one. The Additional Sessions Judge's finding to the contrary is perverse and must be set aside.
9. Accordingly we allow this Revision, set aside the order of the learned Judge in respect of the punishment, and restore that of the trial Magistrate. Piarey Lai shall surrender forthwith and serve out his sentence of imprisonment. He must also pay up his fine without delay.