ABDUL RAZACK Vs. FOOD INSPECTOR

JUDGEMENT

(1.) The revision petitioner was the Proprietor of Thevara Stores, Ernakulam. On 27-7-72 at 10 A. M., the Food Inspector, Cochin Corporation purchased 375 grams of tea from the petitioner following the formalities prescribed under the Prevention of Food Adulteration Act. A portion of the sample purchased was sent to the Public Analyst, Trivandrum. The report of analysis showed that the tea was adulterated and that it contained 40% of extraneous matter consisting of cashewnut endocarp and gram husk and also non permitted coaltar dyes. A complaint was thereupon filed implicating the sister of the revision petitioner as the proprietor of the concern as the first accused and the revision petitioner as the salesman and the second accused. The Trial Court acquitted the first accused and convicted the revision petitioner for an offence punishable under S.16 read with S.7 of the P. F. A. Act. He was sentenced to simple imprisonment for six months and a fine of Rs. 1000/- being the minimum prescribed for a first offender. Criminal Appeal No. 54 of 1975 was filed before the Sessions Judge, challenging the above conviction. The learned Sessions Judge confirmed the conviction. Though a prayer was made that the revision petitioner be released on probation of good conduct, the appellate Judge held that in view of the minimum punishment prescribed for offences under the P.F.A. act, it was not proper to apply the provisions of the Probation of Offenders Act unless there are exceptional circumstances. According to the learned Judge, the facts of the present case did not justify the application of the Probation of Offender, Act. The sentence passed by the Trial Court was accordingly confirmed. The revision petition is filed against the above order.

(2.) Shri. Rama Shenoi appearing for the revision petitioner did not challenge the conviction entered by the courts below. The gamut of his attack was the observation of the learned Sessions Judge that since a minimum sentence is prescribed for offences under the Prevention of Food Adulteration Act it would not be proper to apply the provisions of the Probation of Offenders Act. It is pointed out that neither the Prevention of Food Adulteration Act nor the Probation of Offenders Act restricts the application of the principles of probation to offences involving adulteration of food. The argument is that the revision petitioner in this case being a young man, detention in jail would only place him in the company of old offenders and there is always the risk of his returning from the jail as a confirmed criminal. The application of the provisions of the Probation of Offenders Act would only work to his reformation and would have also a beneficent effect on society.

(3.) The question of applying the provisions of the Probation of Offenders Act to offences involving a minimum sentence came up before the Supreme Court in A. M. Sinha v. A.K. Biswas AIR 1974 SC 1818 . The offence involved in that case was under S.135 of the Customs Act for being in possession of gold bars and sovereigns bearing foreign markings. The Trial Court convicted the accused for he offence charged, but directed them to be released on probation under S.4(1) of the Probation of Offenders Act. The matter was taken in appeal by the Assistant Collector of Customs. The High Court held that though R.126P(2)(ii) of the Defence of India Rules prescribed a minimum sentence of imprisonment for a term of not less than 6 months it did override the provisions of the Probation of Offenders Act and, therefore it was competent to the Trial Court to release the offenders under that Act The Supreme Court after referring to the cases Isher Das v. State of Punjab AIR 1972 SC 1295 and Jai Narain v. Delhi Municipality AIR 1972 SC 2607 both of which arose under the P.F.A. Act confirmed the order of the High Court. The facts of the case as mentioned therein disclose that the accused were young boys normally engaged in agriculture, who were carriers of gold for small tips.