Noor Mohammad vs State of U.P. and Others

V.P. Mathur, J.—This revision is directed against the judgment and order passed on 25-7-84 by Mr. Sushil Kumar, Sessions Judge, Muzaffarnagar. The learned Judge dismissed Criminal Appeal No. 77 of 1984 and upheld the order of conviction and sentence passed against the present revisionist by the learned Magistrate. The case was one u/s 7 read with Section 16 of the Prevention of Food Adulteration Act and the trial Court judgment was delivered by Mr. J.C. Misra, Judicial Magistrate, Muzaffarnagar on 13-3-1984. He found the revisionist guilty, convicted him accordingly and sentenced him to rigorous imprisonment for six months and a fine of Rs. 1000/-. It was also provided that in the event of failure to pay the amount of fine, the accused was also further to undergo three month''s rigorous imprisonment.

The occurrence allegedly took place on 17-11-1978 at about 5 in the evening, when it is said that the revisionist was going to sell milk. He was accosted near the Jansath Cinema Hall by the Food Inspector who obtained 660 ml. of sample of milk on payment at Rs. 1.60 P. This was sent to the Analyst and was found to be short in fatty contents by 13 percent. The case was, therefore, started.

Revision has been admitted on the question of sentence only. Therefore, the concurrent finding of the two Courts below about the factum of occurrence has not been disputed nor could be disputed. It was brought out in the statement of the accused recorded u/s 313 Code of Criminal Procedure that his age at the time of his statement was 21 years. This fact was not disputed and the learned Sessions Judge has mentioned it in the last but one paragraph of the judgment, wherein he has noted that an argument was advanced before him that since the revisionist was a minor on the date of the commission of the offence, he may be granted the benefit of Section 4 of the U.P. First Offenders Probation Act. This plea was, however, rejected by the learned Sessions Judge on the ground that on the date of the judgment the applicant was a major, and hence the benefit u/s 4 was not to be granted to him.

It will thus appear that on the date when this occurrence was committed i.e. 17-11-1978, the revisionist was a minor aged less than 18 years. In the case of Rajveer v. The State Criminal Appeal No. 1890 of 1977 disposed of by this Court on 16-2-82, the Court was considering a case in which the accused was allegedly responsible for committing a riot. At the time of the occurrence he was only 17 years of age and, therefore, benefit of Section 6 of the Probation of Offenders Act was extended to him. It means, therefore, that it is not necessarily the date of the judgment, which is to be the guiding factor in determining as to what sentence should be awarded, but the date of the occurrence, and if the accused is found to be a minor on that date, the Court may extend to him the benefit of Probation Act. Therefore, I think that it was a case fit enough to attract provisions of Section 4 of the U.P. First Offenders Probation Act and the revision has therefore to be allowed to this extent that the conviction of the Appellant as made by the learned Trial Magistrate, vide order dated 13-3-84 and confirmed by the learned Sessions Judge, Muzaffarnagar, vide order dated 25-7-84 is upheld, but instead of sentencing the revisionist Noor Mohammad son of Nasira at once to the punishment awarded to him, I direct that he shall be released on his entering into a bond in the sum of Rs. 4000/- with two sureties each in the like amount to the catisfaction of the Trial Court, to appear and receive sentence when called upon during the period of one year and in the meantime to keep the peace and be of good behaviour.

Let a copy of the order be forthwith transmitted to the learned Magsitrate for compliance.