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4. Mr. M.A. Bukhari, learned A.P.P. while making serious grievance against unduly lenient and manifestly illegal and unjust order of sentence, submitted that the same was ex-fade illegal being contrary to the minimum sentence as prescribed under the relevant clauses of Section 27 of the said Act. The learned A.P.P. further submitted that when the Statute has prescribed the minimum sentence, this legislative mandate should not have been ignored by the learned Magistrate, even if the accused pleaded guilty to the charge. The learned A.P.P. further submitted that having regard to the facts, circumstances and the law governing the case of plea of guilty, the resultant sentence till rising of the Court only and fine of Rs. 2,500 being ex-fade illegal, the case deserves to be at once remanded to the trial Court for de-novo trial. In support of this contention, the learned A.P.P. has relied upon the decision of This Court rendered in case of State of Gujarat v. Thakorlal Keshavlal Rana and Anr. reported in 1991 (1) XXXII (1) GLR 71. The learned A.P.P. further submitted that this decision, of course, is under me Prevention of Food Adulteration Act, 1955, but at the sametime, die principle involved, namely, when the Statute has prescribed die minimum sentence and yet, the learned Magistrate if in contravention of die same awarded a sentence which was less than minimum on the plea of guilty by the accused, then in that case, the same is applicable with all force to the facts and circumstances of the present case. Thus, the present case apparently being a case of plea-bargaining, it deserves to be remanded. The learned A.P.P. on the basis of the above submissions finally urged that instant case also apparently being a case of plea-bargaining, the same deserves to be remanded to the trial Court for fife novo trial.

(c) any drug deemed to be spurious under Section 17B, but not being a drug referred to in Clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years but not less than one year.

6. Now taking into consideration the above provision regarding sentence under Section 27(c), the respondents were liable to be punished at least for a term not less than three years and fine which shall not be less than Rs. 5.000/-, and even if at all they could be believed to have made out some case with 'adequate and special' reasons warranting any lenient view to be taken, then even, they were liable to be punished for the minimum sentence of one year (Emphasis supplied). This material aspect unfortunately has been totally lost sight of by the learned Magistrate while accepting the plea of guilty and in sentencing the respondents till rising of the Court and to pay fine of Rs. 2,500/-. When such is an unescapable factual and legal position, merely because the respondents pleaded guilty that by itself did not invest the trial Court with any special power to take charitable view of the matter by short-circuiting the entire trial and awarding unduly lenient sentence. Further the reasons given by the learned Magistrate for taking absolutely undeserving charitable view of the matter in imposing a flee-bite sentence is totally unsustainable. On going through the judgment, it appears that the learned Magistrate has misdirected himself in observing that the discretion is vested in the Court to award less than the minim am sentence after assigning reasons for the same. Now this observation per se is unwarranted and contrary to the provision contained in Section 27(c) which even for the adequate and special reasons, prescribes the minimum sentence of not less than one year! ! It is indeed difficult to understand as to how the learned Magistrate failed to read the black and white provision contained in Section 27(c) of the Act pertaining to the minimum sentence? It appears that while taking lenient view of the matter, following circumstances have weighed with the learned Magistrate:

7. Now with due respect to the learned Magistrate, it may be stated mat except bare assertions in the joint purshis [Exh. 26] submitted by the respondents to the effect that the respondents No. 2 was sick old man and was not attending the shop at the relevant time, there was absolutely nothing on the record to testify and support the same for the Court to satisfy its judicial conscience regarding genuineness of the same to accept it. In the said joint purshis there is neither any specific age mentioned nor any specific disease described, nor any medical certificate produced in support of the alleged sickness of respondent No. 2! Thus, except bald assertion and mere ipsi-dixit in the written purshis, there is absolutely nothing on the record to justify alleged grounds for taking any lenient view of the matter, even if it was legally possible to be availed of! It is to be mentioned that when Legislature vests any discretion in Courts to award less than the minimum sentence prescribed under the particular Statute then such a discretion should be exercised with the utmost care and circumspection. If on the contrary, the Court remains relaxed and unattentive, it is very likely that in a given case some scheming accused trickily invoking false sympathy of Court may get away with light sentence defeating the very object of the sentencing process ! Further still, it is indeed not a valid and justifiable defence open to the respondent No. 3 that he had purchased 'Borolin' from unknown vendor, and therefore, he had no intention to commit any offence. As a matter of fact, having regard to the Rule 65(3)(i) of the Drugs & Cosmetics Rules, 1945, not only such a defence is not available to any accused but to take the same is suicidal and virtually admitting guilt. The said Rules 65(4)(3)(i) and 65(4)(4)(i) of the Rules reads as under:

(Emphasis supplied)

8. Thus, the defence taken by the respondents No. 3 itself is thus chargeable under Section 18(a)(vi) which is punishable under Section 27(d) of the Act. Thus taking into consideration the aforesaid discussion, it is very clear that the trial Court has committed an obvious error in accepting the plea of guilty by not awarding the minimum sentence as prescribed under Section 27(c) of the said Act. In fact, had indeed the learned Magistrate been careful enough to point out to the respondents that despite their pleading guilty, the Court as per the Statutory mandate was going to impose a sentence of not less than three years and fine of Rs. 5,000 as provided under Section 27(c) of the Act, unless a case for lesser sentence was made out as provided in proviso to Section 27(c) of the said Act, for which also, the minimum sentence is of one year, perhaps, the respondents would not have dared to plead guilty ! It appears that the respondents probably thinking that by pleading guilty, they would be let-off with light sentence, they were tempted to plead guilty. It is indeed unfortunate that though respondents were represented by the learned Advocate, the learned Advocate in his turn did not care to point out and impress upon them that pleading guilty to the charge was fraught with irreversible consequences of being visited with the minimum sentence of imprisonment and fine which the trial Court was bound to impose in view of the express Legislative mandate given Section 27(c) of the Act. When both - the learned Advocate and the learned Magistrate, despite express provision in the Law failed to warn, and thereby discharge their duties to the respondents about the danger of being visiting with minimum sentence, no fault of pleading guilty can be fastened on the respondents alone. It is hoped that henceforth both the learned Magistrate and Advocate, in such cases, will take due and necessary care in informing accused/clients properly before they plead guilty to the charge where minimum sentence is prescribed. In the instant case, since the credulous respondents for no fault of their own apparently have been lead to believe that by pleading guilty, they will be let-off by some nominal sentence, it would not be fair and just on the part of This Court to spring surprise in this appeal by enhancing their sentence by imposing the least minimum sentence of imprisonment and fine, as prescribed under Section 27(c) of the Act, without the respondents being actually tried on merits. In this view of the matter, this matter deserves to be remanded to the trial Court for de-novo trial.