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1983 DIGILAW 171 (RAJ)

Ramjani v. State of Rajasthan

1983-04-05

S.N.BHARGAVA

body1983
BHARGAVA, J.—This is a revision petition arising out of the judgment passed by the learned Addl. Sessions Judge No. 2, Kota on 19/3/1983, confirming the sentence passed by the learned Addl. Munsiff And Judicial Magistrate No. 1 Kota, under Sec. 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months rigorous imprisonment and a fine of Rs. 1,000/-and in default of payment of fine to further imprisonment for one month (S. I.). 2. The petitioner was checked by the Food Inspector on 11/10/1973 sample of milk was collected, which was found to be adulterated on analysis and, on trial he was found guilty and sentenced to six months rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months simple imprisonment, by the trial Court by its judgment dated 20/4/1977. On appeal, the learned Addl. Sessions Judge, Kota remanded the case for ascertaining the age of the accused-petitioner before and then award the sentence. On remand, the trial Court found that the accused-petitioner was below 20 years of age on the date of occurrence, but declined to give him the benefit of Sec. 4&6 of the Probation of Offenders Act and sentenced the accused-petitioner to undergo 6 months rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default of payment, to further undergo one months simple imprisonment vide his judgment dated 5/11/1981. The appeal filed by the petitioner was dismissed by the Addl. Sessions Judge No. 2, Kota. Hence, this revision petition. 3. Mr. Tyagi, learned counsel for the accused-petitioner, has submitted that the report from the Probation officer was also obtained and who had recommended the case of the petitioner for being released on probation and as the accused-petitioner was neither a prior convict nor any other case was pending against him, but in simple spite of favourable report by the Probation Officer neither the benefit of the Probation of Offenders Act was granted to him, nor the benefit of sec. 360, Cr.P.C was afforded to him the incident is of 1973. The petitioner has been facing trial since 1974. He has also submitted that the petitioner is not a regular milk vendor and has no licence for selling the milk. 360, Cr.P.C was afforded to him the incident is of 1973. The petitioner has been facing trial since 1974. He has also submitted that the petitioner is not a regular milk vendor and has no licence for selling the milk. The defence of the petitioner was that he was carrying the milk for his own use required for the feast on the occasion of the birth day of his nephew. However, he has not challenged the conviction of the petitioner and this Court would not like to go into the merits of the case in its revisional jurisdiction. He has only submitted that he should be granted benefit of the Probation of Offenders Act. 4. The learned counsel for the petitioner has relied on Chunni vs. The State of Rajasthan (1), in which it has been held that Section 20AA could not apply if the incident is before the amendment. He has also relied on Ghanshyam Das vs. Delhi Municipality (2), in which case the Supreme Court granted benefit of the Probation of Offenders Act when the accused was convicted under Section 7/16 of the Prevention of Food Adulteration Act, as the incident was of 10 years old. He has further relied on A. M. Sinha vs. A. K. Biswas (3), and Ishar Das vs. State of Punjab(4), in which their Lordships Lave observed as under— "Adulteration of food is a menace of public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for period of six months and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act. As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the Prevention of Food Adulteration Act, should not be deprived of the advantage of the Probation of Offenders Act which is a beneficial measure and reflects and incorporates the modern approach and latest trend in penology." 5. The Supreme Court in this case has further held that the Probation of Offenders Act was enacted in 1958. Subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act, as the Legislature enacted the Probation of Offenders Act despite the existence on the statute book of the Prevention of Food Adulteration Act the operation of the provisions of the Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactment, viz, the Prevention of Food Adulteration Act. The non-obstance clause in Section 4 of the Probation of Offenders Act is a clear manifestation of the intention of the Legislature that the provisions of the Probation of Offenders Act would have effect notwithstanding any other law for the time being in force. 6. On the other hand, the learned Public Prosecutor has relied on Chhagan Lal vs. The State (5) in which this Court did not give benefit of Probation of Offenders Act to the accused who was sixty years old. The facts of that case are different, because in the present the accused was below 21 years of age on the date of occurrence. 7. The petitioner has already remained in jail for more than 15 days. The incident is of the year 1973 and the accused has been facing trial since 1974. He is not a previous convict and the report of the Probation Officer was also in his favour. Petitioner is admittedly below 21 years of age on the date of occurrence. The incident relates to the period 1976 amendment, in the Prevention of Food Adulteration Act and hence, Section 20AA is not applicable in view of Chunni vs. The State of Rajasthan (Supra). The Supreme Court also in Ghanshyam Das vs. Delhi Municipality (Supra) granted benefit of the Probation of Offenders Act in a case in which the accused was convicted under the Prevention of Food Adulteration Act as the incident was of 10 years old. The Supreme Court also in Ghanshyam Das vs. Delhi Municipality (Supra) granted benefit of the Probation of Offenders Act in a case in which the accused was convicted under the Prevention of Food Adulteration Act as the incident was of 10 years old. Here, also, the sample was collected in 1973 and now we are in 1980. The Supreme Court in Ishar Das vs. State of Punjab (Supra) has discussed in detail and has come to the conclusion that if the accused is below 21 years of age he is entitled to the benefit of the Probation of Offenders Act. Honble Lodha J. in Kauda vs. State of Rajasthan 6 after considering several authorities in this case has come to the conclusion that merely because the minimum sentence is prescribed for the offence, it is not sufficient to refuse the benefit of the provisions of the Probation of Offenders Act. It will depend on the facts and circumstances of each case as to whether benefit should be extended to the accused or not, unless any Act excludes the applicability of Section 360, Cr.P.C. or the provisions of the Probations of Offenders Act, it cannot be said that the benefit should not be given. 8. Hence, I am inclined to grant benefit of the Probation of Offenders Act and it is hereby granted to the accused petitioners. He shall be released under section 4 of the Probation of Offenders Acton his entering into a bond in a sum of Rs. 2,000/- and a surety in the like amount to appear and receive sentence whenever called upon during the period of two years and to keep peace and be of good behaviour and not to repeat the same offence. 9. The revision petition is partly allowed as indicated above.