State by Public Prosecutor vs Chellammal

Maheswaran, J.—The respondent Chellammal has been convicted of an offence punishable under S. 4(J)(b) of the Tamil Nadu Prohibition

Act and was released after due admonition under S. 3 of the Probation of Offenders Act, by the Judicial Second Class Magistrate, Cooncor. He

also directed the respondent to pay a sum of Rs. 250 as cost of proceedings under S. 5(1)(b) of the Probation of Offenders Act. The State has

filed this appeal for enhancement of sentence on the ground that the sentence is inadequate.

The allegation against the respondent-accused was that on 22nd July, 1976, at about 20.45 hours at Badugan Thottam Forest Solai, she was

found distilling arrack. On her admission, which was voluntary the learned Magistrate passed the order referred to already.

It is contended for the State that when a minimum sentence is prescribed for the offence under the Act, the order of the Magistrate releasing the

respondent-accused under the provisions of the Probation of Offenders Act, is illegal. This contention is well-founded for, the Supreme Court in

Superintendent of Central Excise Bangalore v. Bahubali 1979 M.L.J. Cri. 241 : 1979 L.W. (Crl.) (12 S.N.) observed.

In cases of offences under a special Act enacted after the Probation of Offenders Act which prescribes a minimum sentence of imprisonment the

provisions of the Probation of Offenders Act cannot be invoked.

The minimum sentence prescribed under S. 4(1)(b) of the Act is imprisonment for six months and fine of not less than Rs. 1,000. The only

reason given by the Magistrate for not awarding the minimum sentence, is that ""there is no record to show that the accused is an old offender"". This

special reason is not an adequate reason. In Criminal R.C. No. 440 of 1965, Ananthanarayanan Officiating Chief Justice, as he then was, was of

the view that S. 4(1) of the Probation of Offenders Act (Act 20 of 1958) does not apply to a case of a person convicted for an offence punishable

with death or imprisonment for life, but in every other case ""not withstanding anything contained in any other law for the time being in force"" the

Court has the power to exercise the beneficial discretion embodied in the section. The ruling of the Supreme Court referred to above was reported

only in the year 1979 after the deli very of the judgment by the learned Magistrate. The offence was committed in the year 1976. Under those

circumstances, I feel that it would cause great hardship to the accused if she is sent to jail now. I therefore, dismiss this appeal with an observation

that in future, the Magistrates in dealing with cases under the amended Act, will scrupulously follow the ruling of the Supreme Court while awarding

sentence under the special Act which prescribes a minimum sentence.