1. Nawal Singh, revisionist, was convicted and sentenced by Sri B. Lal, Chief Judicial Magistrate, Bulandshahr, on 8-9-1980 in Criminal Case No. 1140 of 1979 for offence under Section 7/16 of the Prevention of Food Adulteration Act to six months' R.I and fine of Rs. 1,000/- or, in default of payment thereof, to further 4 months' R.I His Criminal Appeal No. 156 of 1980 was dismissed by Sri R.P Singh, Vth Additional District and Sessions Judge, Bulandshahr on 29-7-1981 and the sentence imposed upon him was confirmed. Nawal Singh has, therefore, filed the present criminal revision.
2. His above conviction and sentence arose out of an incident of 15-5-1977 when the Food Inspector had taken a sample of milk which was subsequently found adulterated by the public analyst inasmuch as the milk sample was found deficient in non-fatty solids by 12 percent. Hon'ble V.N Misra, J. by his order dated 27-8-1982 found difficulty in agreeing with some of the decisions referred to in his said order and desired constitution of a larger Bench by the Hon'ble the Chief Justice for an authoritative decision on the following question:
“Whether milk in which non-fatty solids alone are found deficient and less than prescribed standard would be deemed to be adulterated or not?”.
3. The matter was referred to the Division Bench and the Hon'ble Judges by their order dated 29-11-1984 placing reliance on the Full Bench decision in Prem Das v. State, AIR 1961 All 590 and Division Bench decision by this Court in State of U.P v. Safri Ram, 1964 All LJ 59, were of the opinion that “milk must be held to be adulterated even if it is found to be deficient only in non-fatty solids.”
4. Accordingly, the milk sample in question which is the subject matter of the present criminal revision was adulterated.
5. Learned counsel for the revisionist has submitted that Nawal Singh, revisionist, in his statement under Sec. 313, Cr. P.C recorded on 13-6-1980 gave out his age as 18 which fact was not challenged by the prosecution, so on the date of the offence, i.e on 15-5-1977 he was a minor boy of 15 only. Learned counsel argued that the appellant should be given the benefit of Sec. 20-AA of the Prevention of Food Adulteration Act The said section runs 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.”.
6. This section means that in cases to which the Probation on Offenders Act, 1958 or section 360 of the Code of Criminal Procedure, 1973, apply; then, benefit thereunder would be given to the person convicted of an offence under the Prevention of Food Adulteration Act only if he is under 18 years of age.
7. Probation of Offenders Act, 1958 is a Central Act. Section 1(3) thereof provides, that it shall come into force in State on such date as the State Government may, by notification in the official gazette, appoint and different dates may be appointed for different parts of the State.
8. No notification has been made by the Government of State of Uttar Pradesh. Accordingly, the said Probation of Offenders Act, 1958 is not applicable in Uttar Pradesh. Sec. 15 of the U.P First Offenders' Probation Act, 1938 repealed Ss. 562, 563 and 564 of the Code of Criminal Procedure, 1898 (old Code). Sec. 360 of the Code of Criminal Procedure 1973 (2 of 1974) (new Code) corresponds to the said three sections, 562, 563, and 564 of the old Code. Accordingly, section 360 of the new Code of 1973 by implication stands deleted in Uttar Pradesh. Accordingly, the said Sec. 20AA of the Prevention of Food Adulteration Act seems to have no application in Uttar Prades Moreover, before benefit of the said Sec. 20-AA is available to any person, convicted of an offence under Prevention of Food Adulteration Act, he should be under 18 years of age on the date of the conviction and not on the date of the offence. The same view was expressed in a decision, Sheesh Pal v. State, (1981) 1 FAC 417 (All). It was held therein that the “wording of the said section are clear and go to indicate that the age of the accused on the date of conviction is to be seen. Since on the date of conviction, the appellant was admittedly above 18 years of age, section 20-AA could have no application in his case.”
9. In the pesent case, the applicant in his statement before the learned Magistrate recorded on 18-10-1979 before framing of the charge on that date had given his age as 18 years. Again at the time of the statement under Sec. 313, Code of Criminal Procedure recorded on 13-6-1980 he again gave out his age as 18 years. If he was of 18 years old on 18-10-1979 then, in all probability, he was over 18 years on 13-6-1980 and was certainly above 18 when he was convicted by the Chief Judicial Magistrate on 8-9-1980. Obviously then, he was not entitled to the benefit of the said Sec. 20-AA of the Prevention of Food Adulteration Act.
10. However, the learned counsel for the applicant has then argued that the applicant-revisionist should be given the benefit of Sec. 4 of the U.P First Offenders' Probation Act, 1938. Second proviso of said Sec. 4 runs as, follows:
“Provided also that if a person under twenty one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government, which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless for special reasons to be recorded in writing, it does not consider it proper to do so.”
11. The present offence falls under the words “any other enactments prescribed in this behalf under rules made by the State Government which is punishable with imprisonment not exceeding six months.”.
12. Rule 28 of the U.P First Offenders' Probation Rules, 1939 provides that:
“The second proviso to sub-section (1) of section 4 of the Act shall, subject to the conditions mentioned therein apply to every person convicted for any offence under any enactment, except the Criminal Tribes Act, 1924, if the offence is punishable with imprisonment not exceeding six months:
Provided that if the Manager of a Criminal Tribes Settlement is willing to act as a probation officer, the court may give the benefit of the second proviso of sub-section (1) of section 4 of the Act to the offender even if-he is convicted under the Criminal Tribes Act, 1924.”
13. Thus, it is a pre-condition that the offence should be punishable with imprisonment not exceeding six months.
14. The present offence falls under Sec. 16(1)(a) (i) read with sub-cl. (m) of Cl. (i-a) of S. 2 of the Prevention of Food Adulteration Act which is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine which shall not be less than one thousand rupees.
15. However, Cl. (i) of the first proviso thereto provides that if the offence is under sub-clause (i) to clause (a) and is with respect to an article of food, being primary food which is adulterated due to human agency the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees.
16. Milk is a “primary food” as defined in Sec. 2(xii-a) of the said Act and under the above-quoted clause (i) of the first proviso is punishable with imprisonment which may extend to two years and with a fine which shall not be less than five hundred rupees. This punishment was made valid with effect from 20-3-1976 by Prevention of Food Adulteration (Amendment) Act No. 34 of 1976. The present offence was committed on 15-5-1977 and the conviction was recorded by the learned Chief Judicial Magistrate on 8-9-1980.
17. Obviously then, the benefit of Sec. 4 of U.P First Offenders' Probation Act will also not be available to the revisionist-applicant.
18. Nevertheless, as the offence was committed on 15-5-1977 about eight years ago when the revisionist-applicant was less than 18; so, I feel, the cause of justice would be met if the sentence imposed upon the revisionist-applicant is reduced to 3 months' R.I The fine imposed upon him shall stand. The revision is accordingly partly allowed. While maintaining his conviction the sentence of imprisonment is reduced to 3 months' R.I The fine imposed shall stand. The applicant is on bail. He shall be taken into’ custody to serve out his sentence.
19. Revision partly allowed.