RAMESH Vs. STATE OF U P

JUDGEMENT

(1.) S. R. Bbargava, J. In this revision the only point to be decided is Whether revisionist Ramesh is entitled to probation on ground of his age.

(2.) FACTS are that on 5th June, 1983 Food inspector purchased sample of mixed milk from the revisionists. Public Analyst found the milk adulterated because it did not conform to the prescribed standard. Revisionist was tried for offence under Section 7/16 of the Prevention of Food Adulteration Act. On 9th January, 1986 revisionist was examined by the Magistrate under Section 313, Cr. P. C. revisionist stated his age as 18 years. Learned Magistrate did not record that the age stated by the revisionist was under- estimate of age, nor did the Magistrate record his own estimate of the age of the revisionist. Learned Magistrate found the revisionist guilty of selling adulterated milk punishable under Section 7/16 of Prevention of Food Adulteration Act. He refused pro bation to the revisionist on the ground that he was more than 16 years of age. In appeal it was contended on his behalf that the age for granting probation is relevant with respect to date of offence and it is evident from the material on record that the revisionist was less than 16 years of age on the date of offence. When this contention was raised before the learned lower appellate court it recorded its own estimate of the age of the revisionist as 23 years and refused probation to the revisionist, who preferred this revision.

(3.) IT is evident in this case that the Magistrate was satisfied with the state ment of the accused that he was 18 years of age on the date of his statement under Section 313, Cr. P. C. and so Magistrate did not record his own eitimate of the age of the revisionist. The Magistrate even did not record that the age stated by the revisionst is under estimate. If the Magistrate would have recorded that the age stated by the revisionist is under estimate and that in his opinion the age of the revisionist is 22 or 23 years, the revisionist would have got an opportunity to adduce evidence regarding his age. As a matter of fact age stated by the revisionist was not challenged by the prosecution at all. When the pro secution did not challenge the age stated by the accused and the accused had no opportunity to adduce evidence regarding age, the lower appellate court could not substitute his own estimate of the age of the accused. I hold that the estimate of the lower appellate court that revisionist is aged 23 years is illegal and contrary to the procedure laid down in Rule 50, cited above.