Suresh Kumar vs The State of Haryana

S.S. Dewan, J.—Suresh Kumar petitioner was convicted u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, by Judicial Magistrate 1st Class, Jagadhari, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, or in default to undergo rigorous imprisonment for three months. On appeal, the learned Sessions Judge, Ambala, maintained his conviction and the sentence. Aggrieved by the conviction and sentence as aforesaid, the petitioner has preferred this revision.

The facts of the case, briefly stated, are that on 7th November, 1973 at about 9.00 a.m., Government Food Inspector Shri Harbhajan Singh accompanied by Dr. P.N. Chhabra, Chief Medical Officer, Ambala, went to the karyana shop of the petitioner and purchased 375 grams of dhania from him in the presence of Rameshwar Dass P.W. 1 on payment of Rs. 1.25 against a receipt Ex. P B. The dhania purchased was divided into three parts and each part was transferred in a dry and clean bottle. The bottles were property stoppered, labelled and sealed one bottle was given to the accused-petitioner, one was sent to the Public Analyst, Haryana, Chandigarh, alongwith the requisite memo for analysis. The Public Analyst found that the sample was infested with as many as 10 living insects and also contained two rat-droppings. Consequently the Food Inspector filed the complaint against Suresh Kumar petitioner.

The Food inspector Harbhajan Singh P. W. 1, Dr. P.N. Chhabra, Chief Medical Officer P.W. 2 and Rameshwar Dass P.W. 3 deposed about the facts of this case.

The accused petitioner in his statement recorded u/s 313, Code of Criminal Procedure, denied the prosecution allegations and pleaded his false complicity in this case. He denied to have sold any dhania to the Govt. Food Inspector.

Feeling satisfied with the prosecution evidence the trial Court convicted and sentenced the petitioner for the offence 28 indicated above.

The main contention of the learned counsel for the petitioner is that at the time the offence was committed, the petitioner was below 21 years of age and, therefore, could not be sentenced to imprisonment and was required to be released on probation u/s 6 of the Probation of Offenders Act (hereinafter called the Act).

Shri V.K. Bali, Advocate, appearing on behalf of the Advocate-General, Haryana, in reply contended that at the time of conviction, the age of the petitioner was more than 21 years and, therefore, he cannot be given the benefit of probation. He further pointed out that since it is a case of adulteration and the petitioner was more than 21 years, so as held in Prem Ballab and another v. The State (Delhi Admn) 1976 C.A.R. 341 (S.C.), the petitioner should be given the benefit of probation.

In this care the crucial point to be determined is as to whether the petitioner was a first offender and what was the age of the petitioner at the time of the occurrence and as to whether the age of the petitioner will be taken into consideration when he committed the offence or when he was convicted and sentenced by the trial Court. To know the antecedents of the petitioner, this Court called for the report of the Probation Officer, Ambala, who, vide his report dated 24th April, 1979 reported that the petitioner was not a previous convict. The trial court mentioned the age of the petitioner in the judgment as 20/21 years. Section 20 AA was added in the Prevention of Food Adulteration Act in the year 1976 which reads as under:�

Application of the Probation of Offenders Act, 1958, and section 360 of the Code of Criminal Procedure, 1973�Nothing contained in the Probation of Offenders Act, 1959 (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 occurrence in this case took place on 7th November, 1973 and therefore, section 20-AA of the Prevention of Food Adulteration Act will not apply in this case. As such, we have to see at to whether the petitioner was below 21 years of age at the time of the commission of the offence at the time of his conviction. The learned counsel for the petitioner cited Darshan Kumar v. Secretary, Municipal Corporation Jabalpur AIR 1973 S.C. 906, in which it has been held that:

When an accused is found to be below 21 years of age at the time of the commission of the offence the High Court ought to make an order under this section (under section 6 of the Probation of Offenders Act) or remand the case for doing so.

The learned counsel for the petitioner also cited Mohamed Aziz Mohamed Nasir Vs. State of Maharashtra, and Musakhan and Others Vs. State of Maharashtra, . The case Mohammed Asiz Mohammed Nasir v. State of Maharashtra (supra) is not helpful in the present case as the appellant in that case was only 17� years at the time of commission of the offence. In other case, Muskhan and others v. State of Maharashtra (supra), accused No. 9 was aged 20 years in 1968 when the offence was committed and in the year 1976 when the appeal was decided by the Hon''ble Judges of the Supreme Court, he along with his other accused, who were below 20 years in 1968; allowed the benefit of Section 6 of the Act and their sentence were set aside and they were directed to be released on furnishing their bonds in the sum of Rs. 500/- each with two sureties in the like amount for a period of one year. In the said ease the benefit of section 6 of the Act has been given to the three appellants although at the time of the judgment of the Supreme Court, all of them were over 21 years.

In view of the aforesaid authorities, the age of the accused at the time of the commission of the offence shall be taken into consideration for giving him the benefit of probation. It is not disputed that at the time of the commission of the offence the petitioner on the present cage was below 21 years of age He is, therefore, entitled to the benefit of section 6 of the Act. The conviction of the petitioner u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act is maintained but the sentence awarded to him is set aside and it is directed that he should be released on bail by entering into bond for a sum of Rs. 2,000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Ambala and to appear and receive sentence when called upon during the period of one year from the date he furnishes the bond and to keep peace and be of good behaviour meanwhile. The fine if paid, shall be refunded to the petitioner.