State of U.P. vs Chand Sen

U.S. Tripathi, J.—The State of U.P. has preferred this revision against the judgment and order dated 21.6.1984 passed by the Sessions Judge, Jalaun at Orai, in Criminal Appeal No. 35 of 1984 dismissing the appeal filed by the opposite party, but releasing him on probation of good conduct u/s 4 of U.P. First Offenders Probation Act on furnishing a personal bond and two sureties of Rs. 2,000 for a period of one year and reducing the fine of Rs. 1,000 to Rs. 200.

The brief facts of the case are that on 7.5.1979 at about 11.30 a.m., the opposite party had exposed for sale mustard oil in his shop at Kasba Madhogarh, district Jalaun. The Food Inspector suspected adulteration and took sample of mustard oil. One of the samples was sent for chemical analysis. On analysis, the sample was found adulterated. Thereafter, Food Inspector filed complaint after obtaining usual sanction. The opposite party was, tried for the offence punishable u/s 7/16(1)(al(i) of Prevention of Food Adulteration Act, 1954. In the trial, the learned Magistrate found that offence against the opposite party was proved and, therefore, he convicted him u/s 7/16(1)(a)(i) of Prevention of Food Adulteration Act and sentenced him to undergo R.I. for a period of six months and fine of Rs. 1,000. The opposite party preferred Criminal Appeal No. 35 of 1984 against his conviction and sentence in the Court of Sessions Judge, Jalaun at Orai. Before the appellate court, the appeal was not pressed on merit, but only request for releasing the opposite party on probation was made. The learned Sessions Judge was of the view that in view of the facts and circumstances of the case as well as young age of the opposite party and the fact that there was no previous bad antecedents, the end of justice would meet, if the opposite party may be given chance to maintain peace and be of good conduct. With these findings, he dismissed the appeal and confirmed the conviction of the opposite party, but instead of sending him to jail, he directed that he shall be released on probation of good conduct u/s 4 of U.P. First Offenders Probation Act on his furnishing a personal bond and two sureties in the sum of Rs. 2,000 for a period of one year for good conduct and behaviour during the period of one year and fine imposed by the trial court was reduced to Rs. 200.

The State of U.P. has come up in this revision against the above order of the appellate court.

I have heard the learned A.G.A. appearing on behalf of State of U.P. and none appeared from the side of opposite party.

The only question, which arises for determination in this revision is whether the opposite party was entitled to benefit of Section 4 of U.P. First Offenders Probation Act.

Section 20AA of Prevention of Food Adulteration says that nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973(2 of 1974) shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

The wordings of above Section are clear to show that provisions of Probation of Offenders Act would apply to a person convicted of an offence under Prevention of Food Adulteration Act only if it is proved that the person is under 18 years of age. In the case of Nagar Swasthya Adhikari v. Nairn Chand XVI 1979 ACC 140, Hon''ble P.N. Bakshi, J., of this Court held that the relevant date to be taken into consideration while applying the provisions of Probation of Offenders Act would be the date on which the Trial Court pronounced its judgment. Relying on the above case law, Hon''ble M. Wahajuddin, J., of this Court in the case of Nafis v. State of U.P. XX 1983 ACC 226, held that to get benefit of the Probation of Offenders Act the age of the accused should be 18 years or less on the date of conviction and otherwise benefit of Probation of Offenders Act providing for release on probation would not be available.

Thus, it is clear that for applying the benefit of Probation of Offenders Act to a person convicted under Prevention of Food Adulteration Act, it must be proved that he was below 18 years of age on the date of conviction by the trial court. In the instant case, no plea was raised before the trial court that the opposite party was below the age of 18 years on the date of conviction. No doubt before the appellate court, prayer was made for releasing the opposite party on probation, but it was not shown that the opposite party was below 18 years of age on the date of his conviction. The learned Sessions Judge had also not considered this fact and had not recorded any finding regarding the age of the opposite party on the date of his conviction. The learned Sessions Judge had simply taken into consideration young age of the opposite party. The word "young age-does not mean the age below 18 years. It may be less or more than 18 years. In this way, learned Sessions Judge wrongly allowed the benefit of Probation of Offenders Act to the opposite party without ascertaining whether the provisions of Section 20AA of Prevention of Food Adulteration Act are applicable in his case or not. The age of opposite party cannot be ascertained at this stage by this Court as the relevant age is the age on the date of conviction by the trial court. Therefore, before allowing the benefit of Probation of First Offenders Act, the age of the opposite party on the date of conviction by the trial court is to be ascertained and for this purpose, this Court has no option but to remit the case to the appellate court.

The revision is, accordingly, allowed. Release of opposite party on probation is quashed and the case is sent back to the Sessions Judge, Jalaun at Orai, for ascertaining the age on opposite party on the date of conviction by the trial court and thereafter, to consider whether the opposite party is entitled to benefit of Probation of First Offenders Act or not. It is made clear that the conviction of the opposite party u/s 7/16 of the Prevention of Food Adulteration Act has already been confirmed and has not been challenged and, therefore, the question regarding confirmation of conviction of the opposite party under said Section has become final and shall not be opened again. The appellate court shall consider only the question of release of the opposite party on probation or sentence as the case may be.