Kanwaljit Singh vs State of Punjab

S.S. Grewal, J. (Oral)

Kanwaljit Singh petitioner was convicted under Section 27(ii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act'') for commission of an offence under Section 1(a)(c) of the Act. He was sentenced to rigorous imprisonment for two years and to pay fine of Rs. 2,000/. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for six months by the Additional Chief Judicial Magistrate, Amritsar vide order dated April 29, 1987. Appeal filed against the order of conviction was dismissed except, that the sentence of imprisonment was reduced from two years'' rigorous imprisonment to one and, a half years'' rigorous imprisonment. Aggrieved against the order of conviction and sentence passed by the Courts below, Kanwaljit Singh Petitioner had filed this revision which was admitted only regarding the question of sentence to the awarded.

In brief, facts relevant for the disposal of this case, ''are that on July, 16, 1979,. Harbhajan Singh Drugs Inspector, Amritsar, conducted raid at the premises situated at village Bhakna Kalan. Prem Nath Pambani (since acquitted) was running a medical clinic at that village with the help of Kanwaljit Singh petitioner. Drugs of various types including paracetamol were found at the said clinic and they had been stocked for sale. The petitioner did not possess any licence for keeping those medicines nor he was a registered medical practitioner. After completing legal formalities, Drugs Inspector Harbhajan Singh drew a sample of 88 tablets of paracetamol for the purpose of analysis. Besides, some other drugs were also seized.

On behalf of the petitioner, it has rightly been submitted that the petitioner is below 21 years of age and may be released on probation of good conduct inasmuch as he is not a previous convict. Reliance in this respect has been placed on the authority in case Satyabhan Kishore and another v. The State of Bihar, AIR 1972 Supreme Court 1554 wherein it was observed that whenever a person under 21 years of age is found guilty of an offence punishable with imprisonment but not with imprisonment for life. Section 6 of the Probation of Offenders Act, 1958 lays down an injunction not to impose a sentence of imprisonment upon'' such an offender unless for reasons to be recorded by it, the Court finds it undesirable to proceed with him under Section 3 or Section 4 of the Probation of Offenders Act, 1958.

In the instant case, the learned trial Court merely refused to grant the benefit, of probation to the offender on the ground that offences under the Act which were likely to prove dangerous to the lives of patients who get treatment at the hands of such quacks, should be curbed with a heavy hand. It is pertinent to note that the learned trial Court has not taken into consideration either the age or the previous antecedents, or the character, of the offender, nor the trial Court called the report of the District Probation Officer as contemplated under subsection (2) of section 6 of the Probation of Offenders Act.

On behalf Of the State it was mainly contended that since the minimum sentence has been prescribed for commission of offences under the Act, the benefit of probation may not be granted to the petitioner, Such a plea was considered by their Lordships of the Supreme Court in Ishar Das v. The State of Punjab, AIR Supreme Court 1295 and it was observed that as regards persons under 21 years of age, however, the policy of the law appears to be that such a person inspite of his conviction under the Prevention of Food Adulteration Act, should not be deprived of the advantage of Promotion of Offenders Act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.

Reliance on behalf of the State has also been placed or the authority in case Yaduraj Singh and bothers v. State of U P., AIR 1977 Supreme Court 698 wherein it was observed that there being no reliable evidence showing true ages of accused, new plea claiming benefit under the Probation of Offenders Act could not be entertained. In that case, there was no credible evidence on the record showing that the appellants were less that 21 years of age when the offence was committed. Moreover, the question whether the said appellants were entitled to be ''released on probation, was not considered either by the trial Court or by the High Court. Since the trial Court had convicted those appellants under Section 307 read with Section 149 of the Indian Penal Code, the question of granting probation to the convicts hardly arose before the trial Court. At any rate, the facts and circumstances of Yaduraj Singh''s case (supra) were entirely different from the one in the case in hand. Authority in Yaduraj Singh''s case (supra) is not applicable to the facts and circumstances of the present case and the said authority is clearly distinguishable. Apparently, there does not seem to be any legal bar for giving the benefit of probation to the convict in the present case keeping in view his previous antecedents and the nature of the offence which was committed more than ten years back.

For the foregoing reasons, The petitioner is directed to be released on probation of good conduct under Section 4(3) read with Sec. 6 of the Probation of Offenders Act, 1958, for a period of two years subject to his furnishing personal bond in the sum of Rs. 5,000/ with one surety of the like amount to the satisfaction of the trial Court. The petitioner shall keep the peace, be of good behaviour and further undertake to appear before the Court as and when directed to receive sentence. The petitioner shall remain under the supervision of District Probation Officers, Amritsar during the aforesaid period of probation and shall appear before the District Probation Officer, Amritsar, within a fortnight from today. The District probation Officer shall send periodic reports concerning the conduct of the petitioner to the trial Court. Sentence of fine imposed against the petitioner is set aside in view of the judgment in Ishar Das''s case (supra). Fine, if paid, shall be refunded to the petitioner.

This petition is allowed to the extent indicated above.