Allahabad High Court
Virendra Kumar vs State Of U.P. on 30 May, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 93 Reserved on 12.04.2022 Delivered on 30.05.2022 A.F.R. Case :- CRIMINAL REVISION No. - 340 of 2004 Revisionist :- Virendra Kumar Opposite Party :- State of U.P. Counsel for Revisionist :- H.N. Singh,B. Narayan Singh,Fatma Khatoon,Satyendra Prakash Srivastava Counsel for Opposite Party :- Govt. Advocate Hon'ble Shamim Ahmed,J.
1. This revision has been filed challenging the judgment and order dated 28.01.2004 passed by learned Additional District and Sessions Judge (F.T.C.), District Sonbhadra, dismissing Criminal Appeal No. 5 of 1998 (Virendra Kumar Vs. State), preferred against the judgment and order dated 18.02.1998 passed by learned Special Judicial Magistrate, Duddhi, District Sonbhadra in Criminal Case No. 228 of 1987 (State Vs. Shyam Sundar Agrahari and another), under Section 7/16 of Food Adulteration Act, Police Station Shakti Nagar, District Sonbhadra, convicting and sentencing the revisionist under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the, ''Act, 1954') with a punishment of six months rigorous imprisonment along with a fine of Rs. 1,000/- with default stipulation.
2. Heard Shri Gajendra Pratap Singh, the learned Senior Counsel, assisted by Shri Satyendra Prakash Srivastava, the learned counsel for the revisionist, Shri Suresh Bahadur Singh, the learned A.G.A. for the State and perused the record.
3. Learned counsel for the revisionist submits that the complaint was filed in the year 1986 and the revisionist was convicted and sentenced by the trial court for six months rigorous imprisonment in the year, 1998, which judgment and order was affirmed by the learned appellate court in the year, 2004. The date of birth of the revisionist is 25.10.1968 and on the date of alleged incident he was aged about 17 years, 07 months 23 days and as such at that time he was minor and by now 36 years have already been elapsed. The delay in trial deprives the right of the revisionist of speedy trial and he may be given benefit of first offender under the provisions of the U.P. First Offenders Probation Act, 1938 (hereinafter referred to as the, ''Act, 1938'). In support of his submission he placed reliance upon a judgment given by this Court in the case of Badan Singh Vs. State of U.P. in Criminal Revision No. 2066 of 1973 (decided on 31.03.1976).
4. From perusal of impugned order of conviction it appears that the accused-revisionist was held guilty for an offence punishable under Section 7/16 of Prevention of Food Adulteration Act as he was found keeping exposed for sale Gram Pulses which was found adulterated with 9.86% Khesari which is prohibited. The article was thus adulterated within the meaning of clause (f) of sub-Section (1) of Section 2 of the Act, 1954. It was not disputed that the provision to Section 16 of the Act was not attracted and as such he was liable to be punished with imprisonment for a term not less than six months and with fine of Rs. 1,000/-.
5. The relevant portion of sub-section (1) of Section 4 of the Act, 1938 reads as under:
(1) When any person is convicted of an offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct the court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and be of good behaviour :
Provided ..........
Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government, which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.
6. Sub-section (1) of Section 4 of the Act is applicable to persons of all ages subject to conditions which have been specified therein. It is applicable to a person convicted of an offence not punishable with death or transportation of life provided that no previous conviction is proved against him and further if it appears to the court before which is convicted that it is expedient that he be released on probation of good conduct regarding had to the age, character, antecedents or physical mental condition of the offender and to the circumstances in which the offence was committed. Section 4(1) of the Act, 1938 is applicable to all offences punishable with a less severe sentence than death or life imprisonment. It is clear that there the conviction is for an offence of less than a certain degree of gravity, the degree of gravity being measured by maximum punishment which can be imposed for the offence, the benefit of the section can be extended to such an offender. No other exception with regard to the nature of the offence is contemplated by the provision.
7. The second proviso to Section 4(1) of the Act, 1938 lays down that if a person under 21 years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government and the maximum punishment provided for the offence does not exceed six months, the court shall extend the benefit of the section unless, for special reasons to be recorded in writing, the court does not consider it proper to extend the benefit of the provision to him. While in the case of offenders above the age of 21 years, absolute discretion is given to the court, in the case of the offenders below the age of 21 years, an injunction is issued to the court not to sentence the young offenders to imprisonment unless the court for special reasons does not consider it proper to extend to him the benefit of the First Offenders Probation Act.
8. Sub-section (1) of Section 16 of the Act, 1954 provides the punishment which may be awarded to a person found guilty of the various offences under that Act. In addition the penalty to which he may be liable under Section 6, he shall be punishable with imprisonment for a term which shall not be less than six months, but it may extend to six years and with fine which shall not be less than Rs. 1,000/-. The proviso lays down that in case of the offences specified therein, a lesser sentence may be imposed for adequate and special reason be mentioned in the judgment.
9. As observed above, Section 4 of the First Offenders Probation Act does not contemplate any exception other than those specifically mentioned therein, i.e., (1) the offence is not punishable with death or transportation for life, (2) no previous conviction is proved against the offender, (3) the court finding him guilty is of the opinion that having regard to the age, character, antecedents or physical and mental condition of the offender and to the circumstances in which the offence was committed, it is expedient to release him on probation of good conduct and (4) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and be of good behaviour. In case of a person under 21 years of age, the proviso imposes a duty on the court not to sentence him to imprisonment unless for special reasons to be recorded in writing, it does not consider it proper to extend the benefit of the First Offenders' Probation Act. There is nothing in the Offenders Act to indicate that its operation is excluded in the case of persons found guilty of offences undo the Prevention of Food Adulteration Act. In the absence of a clear indication to that effect, the provisions of the Offenders Act would be applicable to a person found guilty of offences under the Prevention of Food Adulteration Act in spite of the fact that a minimum sentence is provided for in respect of certain offences committed under that Act.
10. The question of the applicability of the Probation of Offenders Act, 1938, to the case of a person found guilty of an offence under the Prevention of Food Adulteration Act came up for consideration before the Supreme Court in Isher Das v. State of Punjab : AIR 1972 SC 1295. The Supreme Court held that the provisions of the Probation of Offenders Act is not excluded in the case of the persons found guilty of the offences under the Prevention of Food Adulteration Act. No distinction was made between a case which entails the minimum sentence prescribed under Section 1(c)(1) and a case to which the proviso to that section was attracted. The court, however, cautioned that the provisions of the Probation of Offenders Act should not be lightly resorted to in view of the fact that the Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. It is true that the decision of the Supreme Court was influenced by the fact that Section 4(1) of the Probation of Offenders Act contained the non obstinate clause "notwithstanding anything contained in any other law for the time being in force" and that Section 18 of the Act excluded from its operation only the offence under Sub-section (2) of Section 5 of the Prevention of Corruption Act and further that the First Offenders' Probation Act was enacted subsequent to the enactment of the Prevention of Food Adulteration Act, but that would make no difference in determining the question whether the operation of the Offenders Act is excluded in the case of persons found guilty of offences under the Prevention of Food Adulteration Act, The underlying object of both the Central and the State Acts obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associated with hardened criminals. That object is further emphasised in enacting that a person who is less than 21 years of age and is convicted for an offence punishable with imprisonment not exceeding six months, the court is under a duty not to sentence him to imprisonment unless there exists special reasons which justify such a course.
11. In Jai Narain v. Municipal Coirporation of Delhi : AIR 1972 SC 2607, the court reiterated the principle that the provisions of the Probation of Offenders Act apply to persons found guilty under the Prevention of Food Adulteration Act, although on the facts and circumstances of the case, the court came to the conclusion that it was neither expedient nor in consonance with the object with which the Prevention of Food Adulteration Act was passed to apply Section 4 of the Probation of Offenders Act to the case in hand. The principle laid down in Isher Das's case (supra) was again affirmed in Pyarali K, Tejani v. Mahadeo Ramchandra Dange and others : AIR 1974 SC 28. In the words of Iyer, J.:
"The rehabilatory purpose of the Probation of Offenders Act, 1958, is pervasive enough technically to take within its wing? an offence even under the Act."
12. The principle that emerges from these decisions is that the Probation of Offenders Act apply to offences under the Prevention of Food Adulteration Act, Its operation cannot be whittled down or circumscribed by the fact that a minimum sentence is provided for certain offences and no discretion is left to the court in that matter.
13. In view of above, this Court is of the view that the benefit of the First Offenders Probation Act can be allowed to an accused who is found guilty of an offence under the provisions of Prevention of Food Adulteration Act (Act No. 37 of 1954), to which the proviso to Section 16 of the Act does not apply.
14. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the accused/appellant.
15. Thus, the revision is partly allowed. The judgment and order dated 28.01.2004 passed by learned Additional District and Sessions Judge (F.T.C.), District Sonbhadra, dismissing Criminal Appeal No. 5 of 1998(Virendra Kumar Vs. State), preferred against the judgment and order dated 18.02.1998 passed by learned Special Judicial Magistrate, Duddhi, District Sonbhadra in Criminal Case No. 228 of 1987 (State Vs. Shyam Sundar Agrahari and another), under Section 7/16 of Food Adulteration Act, Police Station Shakti Nagar, District Sonbhadra, so far as it relates with the conviction of revisionist is maintained, but the sentence is modified. Instead of sending the revisionist, Virendra Kumar, to jail, he is given benefit of Section 4 of the Probation of Offenders Act, 1938. He is directed to file two sureties bonds of Rs.20,000/- and a personal bond of same amount to the effect that he shall maintain peace and good behaviour and shall not commit any offence during the period of one year. The bonds aforesaid be filed by him within two months from the date of this judgment before District Probation Officer, Sonbhadra.
16. Copy of this judgment along with lower court record be sent to the District Judge, Sonbhadra with immediate effect for compliance.
Order Date :- 30.05.2022 Mustaqeem.