P.N.Bakshi - (1.) THE applicant has been convicted under Section 16 (1) (a) (2; of the Prevention of Food Adulteration Act and sentenced to six months' R. I. and a fine of Rs. 1000/- by the Judicial Magistrate, Gyanpur, District Varanasi. His conviction and sentence have been confirmed, in appeal, by the Sessions Judge, Varanasi. Hence this revision.
(2.) ON 2nd of May, 1978 I admitted this revision on the question of sentence only. Today the learned counsel for the applicant has very strenuously argued this question and he has urged that having regard to all the circumstances of the case, the applicant should be given the benefit of the First Offender's Probation Act. The applicant is alleged to be selling sweets at his shop on 29- 4-1975 at 10 a. m. when a sample of Imarti was duly taken by the Food Inspector according to the formalities prescribed by law. This sample was sent to Public Analyst who reported that it was coloured with an unpermitted coal-tar dye, viz. 2C( No. 15510. ON these facts the applicant has been convicted and sentenced by both the courts below. I do not find any error or illegality in these findings to justify interference. The question of sentence, however, deserves serious consideration. Admittedly the shop in question where the Imarti was sold by the applicant, belonged to his father Sahdeo. There is nothing on record to indicate that the Imarti was prepared and the prohibited coal-tar dye was mixed therein by the applicant. An affidavit has been filed by Sahdeo, father of the applicant who states that neither he nor the applicant ha\e been prosecuted nor convicted for any such offence before. In para 12 of the affidavit it is also mentioned that the applicant is sincerely regretful and really penetant. On the facts, as they emerge from the findings of the courts below, there can be no doubt that the applicant was a student who had appeared in the year 1974 as a private candidate in the Intermediate Examination. The incident had taken place on 29-4-1975. The probability of his having sat at the shop on that date, casually in the absence of his father, cannot be totally ruled out. The learned Judicial Magistrate had the advantage of the personal presence of the accused applicant. While considering the question of age of the applicant, he has come to the conclusion that the applicant appears to be about 20 years old. The appellate Court, on a consideration of the High School certificate and the certificate of the principal of Intermediate College, Badhoi, was of the opinion that the applicant was more than 22 1/2 years of age It is not very safe to rely upon these certificates for determination of the age of the applicant, for it is not unusual for the dates of birth mentioned therein to be incorrect. As i have observed above, the learned Judicial Magistrate had the advantage of having the accused before him. The applicant has been presented before me today by the learned counsel for the applicant who has very strenuously urged that the assessment of age by the learned Sessions Judge, Varanasi is wholly incorrect. It is difficult for me to hazard any positive opinion, on the question of age but it must be observed that from the physical appearance of the applicant, the assessment of the age by the Judicial Magistrate appears to be nearer truth.
(3.) IT has been held by the Supreme Court in a decision reported in AIR 1972 SC 1295 (Ishwar Das v. State of Punjab), that the policy of law is that the benefit of the First Offenders Probation Act should not be refused to persons under the age of 21 years, even in the case of offences committed under the Prevention of Food Adulteration Act but should not be lightly resorted to in case of persons above that age. The above case was again referred to a later decision of the Supreme Court reported in 1977 SC 56 (Prem Ballabh v. Delhi Administration) and their Lordships re-affirmed the position that the First Offenders Probation Act should not be lightly applied in the case of offenders above 21 years of age. IT was observed that "the Adulterer is the social risk. IT might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him." The P. F. Act has been further modified by the Amendment Act 34 of 1976 which came into force on 17-2-1976. On the basis of this amendment, Section 20 (AA) has been added, which runs as follows : "Nothing contained in the Probation of First Offenders Act, 1958 (Act 20 of 1958) or Section 360 of the CrPC 1973 (Act 2 of 1973) shall apply to a person convicted of an offence under this Act unless that person is under 18 years of age." This will obviously imply that from the date of the amendment the applicability of the First Offenders Probation Act to offenders under the P. F. Act has been more restricted to persons of tender age ranging upto 18 years. However, in the instant case, this amendment would not be applicable since the offence in question was committed on 29-4-1975, much earlier than the coming into force of the Amendment Act 34 of 1976. Having regard to all the facts and circumstances of this case mentioned above, I am of the opinion that it is desirable, in the interest of justice, that the First Offenders Probation Act should be applied, and the benefit thereof should be extended to the applicant. While, therefore, confirming the sentence imposed upon the applicant, I hereby direct that instead of undergoing punishment he shall be released on probation of good conduct on entering into a bond with two sureties to appear and receive sentence when called upon during the: period of two years, from the date of the execution of the bonds. The said bonds shall be executed within one month from today.;