M.Wahajuddin, J. - (1.) THIS revision has been admitted on the point of sentence and the arguments urged are also on that very point. The revisionist Nafis on being convicted under Section 7/16 of the Prevention of Food Adulteration Act was awarded one year's R. I. and a fine of Rs. 1000/- was imposed awarding further six months' S. I. in default by the trial court. A sentence of further two months' R. I. and a fine of Rs. 250/- was awarded under that Section read with Rule 50 of the P. F. Act by the trial court. In appeal the latter sentence was set aside on the latter count and further on the former count sentence of one year's R. I. was reduced to six months' R. I. while the sentence of Rs. 1000,'- fine and six months' simple imprisonment in its default waff maintained.
(2.) THE first point urged in this revision is that the courts below should have given benefit of probation to the revisionist as he was 18 years of age at the time of the commission of the offence. Section 20-AA of the Prevention of Food Adulteration Act lays down as follows ;- 20-AA 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, 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." Under that Section 360 of the CrPC aswell as Probation of Offenders Act have been rendered inapplicable to a person convicted of offence under the Food Adulteration Act unless he was under 18 years of age. Initially learned counsel for the revisionist referred to two Supreme Court cases, one relating to conviction under Section 411 IPC and other relating to conviction for causing hurt in which probation was granted but on being pointed out that as the Food Adulteration Act contains a specific provision rendering the Probation of Offenders Act and Section 360 Of the CrPC inapplicable I am concerned with the interpretation of Section 20-AA of the Probation of Offenders Act he did not rely upon them. He has relied upon the case of Kanhaya Lal v. State of U. P., (Part I) of F.A.C. page 15 by a Single Judge of this Court. What has been held in this case is that the amendment that the benefit should not be given if the person happened to be of 18 years of age was made much later to the committing of the offence and earlier such benefit was available upto 21 years of age, when offence was committed and the amendment cannot operate retrospectively. The point as to on which date the age is material was not considered as such. Reliance was further placed upon another case of Riyazudain v., State of U. P., 1982 (Part I) of the Prevention of Food Adulteration Cases 192, Hon'ble V. N. Misra, J. in that case observed that it is admitted that at the time when sample was taken applicant seemed to be of 15 or 16 years of age and provisions of Section 20-AA of the Act would apply. In that case neither any argument was urged regarding the age at the time of conviction nor that matter was considered as such The age on the date of conviction was material or not under Section 20-AA of the Prevention of Food Adulteration Act was not raised nor considered. On the other hand there are two pronouncements of this Court in which this point was expressly dealt with and they are directly on the point, namely, the case of Nagar Swasthya Adhikari v. Naim Chand, 1979 AWC 507 in which Hon'ble P. N. Bakshi, J. held that the relevant date to be considered under Section 20-AA of the Prevention of Food Adulteration Act is the date on which the trial court pronounces its judgment, and the other case is Sheesh Pal v. The State, 1981 (Part 1) Prevention of Food Adulteration Cases 417 in which Hon'ble R. B. Lal, J. held that in view of the language of Section 20-AA of the Prevention of Food Adulteration Act the age of the accused on the date of conviction is to be seen. Both these pronouncements are directly on the point, considering the language of Section 20-AA of the said Act, I may add that the expression used is............. shall apply to a person convicted of an offence under this Act, unless that person is under eighteen years of age or less. Emphasis, therefore, is clearly on the date of conviction and this Section does not refer to the age of the accused on the date of the commission of the offence. I, therefore, hold that to get benefit of Probation of Offenders Act the age: of the accused should be 18 years or less on the date of conviction and otherwise the benefit of Probation of Offenders Act providing for release on probation would not be available. I am fortified in this view by the aforesaid two pronouncements directly on the point in which the matter was expressly considered and adjudicated upon.
(3.) LEARNED counsel for the revisionist relied upon the case of Ghanshyam v. State, 1982 ACrR 175. That was a case under the Children Act and it is expressly stated in that Act that the age of the accused at the time of committing the offence itself is to be considered to determine whether he is covered under the Children Act or not. It is a Division Bench Case of which I was also one of the members of the Bench. That ruling relates to Children Act. In view of the language of that Section while the language of Section 20-AA of the Prevention of Food Adulteration Act is different so this ruling will not help. I, however, after considering all the circumstances and after also taking into account the present age of the convict as well his age when he committed the offence and taking it as a mitigating circumstance reduce the substantive sentence of six months' R.I. given by the appellate court to three months' R. I. only while the sentence of Rs. 1000/- fine and six months' simple imprisonment in its default is maintained.;