STATE OF KERALA Vs. KHADER

JUDGEMENT

(1.) This revision is by the State and is directed against the correctness of the sentence passed by the court below. The prosecution was for the offence punishable under S.16(1)(a)(i) of the Prevention of Food Adulteration Act and R.50 of the Prevention of Food Adulteration Rules. The prosecution case was that the accused, a vendor in milk, had sold 660 m. ls. of milk to Pw. 1 for analysis and that in terms of Est. P5 report of the Public Analyst it was found to contain not less than 16 percent of added water. Though the accused contested the matter, the court below found that the offence was proved. However, in the matter of sentence a lenient view was taken by the court below. Having noted that the accused was placed in very difficult circumstances in life and was under an obligation to look after his family, let him off under S.4(1) of the Probation of Offenders Act on his executing a bond for Rs. 1000/- with a surety for the like sum, to be of good behaviour for a period of two years and prepared in the meanwhile to receive the sentence if and when found necessary.

(2.) Sri. P. N. Rajan, the learned State Prosecutor, contends that leniency shown by the court below in the matter of awarding sentence is not in keeping with the guideline given by the Supreme Court; the practice of the Trial Courts giving light punishments in food adulteration cases has been deprecated by the Supreme Court. However, in view of the reasons stated by the learned District Magistrate I find that all the relevant facts have been taken note of by him and it is after applying his mind to the effect of a drastic punishment on the accused that he ordered the release of the accused under the Probation of Offenders Act. In particular it has been observed by the learned District Magistrate that if the accused is sentenced to imprisonment and fine in terms of the minimum sentence prescribed under the Act that will result in great injury to the accused and the members of his family who are placed in very poor circumstances in life. It is not as though the learned District Magistrate let off the accused without applying his mind and in a light hearted manner. The pros and cons of the matter have been considered and examined by the learned District Magistrate and his discretion has been exercised in favour of the accused. I do not think that sitting in revision this Court should interfere with the order that has been passed by the learned District Magistrate.

(3.) Sri.C. P. Sudhakara Prasad, the learned counsel for the accused respondent submits that the interference by this Court cannot be possible for another reason also. The learned counsel submits that under S.11(2) of the Probation of Offenders Act, orders passed under the provisions of the said Act are appealable, and therefore where the State has not appealed against the order it is not open to the State to file a revision. It is also submitted that this is not a f it case where the court should exercise its revisional jurisdiction under S.439 Cr. P. C. suo motu. I find considerable force in this contention raised by the learned counsel for the respondent; the view taken in Rajkishore v. Kalasi Sabu (AIR 1971 Orissa 193); State v. Raghbir Singh ( 1972 CriLJ 1580 ); and State of Haryana v. Ramji Lal ( 1972 CriLJ 796 ) is the same. In this view I am in agreement with the view of the Orissa and Punjab and Haryana High Courts that in terms of the provisions under S.11(2) of the Probation of Offenders Act an appeals lies against the orders passed under that Act, and that where the aggrieved party has not filed an appeal it is not open to that party to file a revision. The revision is accordingly dismissed.