P.N. Bakshi, J.
1. Nairn Chand was convicted by the Special Judicial Magistrate, Allahabad for an offence under Sections 7(i), 16(1)(a)(i) of the Prevention of Food Adulteration Act, but has been released on probation under the provisions of the Probation of Offenders Act, 1958 and directed to execute a bond for a period of ten years to appear before the court if and when called upon to do so to take sentence of imprisonment on default. Aggrieved, thereby the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad filed an application under Section 377/378 Cr. P.C. for leave to Appeal. Leave was granted by this Court on 16th Oct. 1978. In these circumstances, this appeal has come up before me for decision.
2. None of the parties have argued this appeal on merits. It have been addressed only on the question of sentence and therefore, I shall confine myself to the point argued before me. The proved facts in the case are that the accused was selling mixed milk of cow and buffalo at about 1.30 p. m. on 24-11-1975 in Khuldadad. The Food Inspector Sri Rajendra Prasad, after disclosing his identity to the accused, purchased a sample of milk for analysis in accordance with the procedure prescribed by law. The milk was divided into three equal parts and duly packed, sealed and labelled in three separate phials. One phial was given to the accused. Out of the two phials in possession of the Food Inspector, one was sent for analysis. The public Analyst reported that the sample was deficient in fat contents by 100% while non-fatty solid contents were 9.2%. He thus found the milk adulterated. After obtaining necessary sanction for prosecution a complaint was filed against the accused, who has been prosecuted and convicted as above.
3. Counsel appearing on behalf of the Nagar Mahapalika, Allahabad has urged that the Judicial Magistrate has erred in law in giving the benefit of Probation of Offenders Act, 1958 to the accused-applicant. He has advanced a number of arguments in this connection, which, I shall deal with hereafter.
4. As already stated, the offence was committed on 24th Nov. 1975. The statement of the accused was recorded on 11th Aug. 1977, The trial court's judgment is dated 10-2-1978. The first argument advanced is that on the date when the offence was committed an offence under the Prevention of Food Adulteration Act, 1954 was punishable with imprisonment for life and as such the provisions of Probation of Offenders Act, were inapplicable. It appears that by Section 6 of U.P. Act 47 of 1975 Section 16(1B) was amended. Unamended Section 16(1B) ran as follows:
If any person in whose safe custody any article of food has been kept under Sub-section (4) of Section 10, sells or distributes such article and such article is found by the Magistrate before whom it is produced, to be adulterated with any poisonous or other ingredient under Sub-clause (h) of Clause (1) of Section 2, then, notwithstanding anything contained in Sub-section (1A) he shall be punishable with imprisonment for a term of six years and with fine which shall not be less than one thousand rupees.
By the aforesaid amendment the words 'shall be punishable with imprisonment for a term of six years and with fine which shall not be less than one thousand rupees, were substituted by the words, 'shall be punishable with imprisonment for life and shall be also liable to fine. It is to be noticed that this enhanced punishment was awarded only in cases which was covered by Section 10(4) of the P. F. A. Act. The instant case is not covered by that section. As already indicated above, the applicant has been convicted for the offence under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. For that offence the law as it existed on the relevant date awarded a punishment of imprisonment for a term which shall not be less than six months, but may extend to six years with a fine which shall not be less than rupees one thousand. The proviso to that section also permitted the imposition of the sentence of imprisonment for a term less than six months or a fine less than Rs. 1000/- for adequate and special reasons. In these circumstances, I do not find any substance in the first submission made by the learned Counsel that since the offence was punishable with imprisonment for life, the provisions of the Probation of Offenders Act does not apply.
4A. The second argument advanced is that while extending the benefit of the Probation of Offenders Act the relevant date to be taken into consideration is the date on which the trial court pronounces its judgment and neither the age given by the accused in his statement under Section 313 Cr. P.C. nor on the date of the offence can be taken into consideration. The judgment as already indicated was pronounced by the trial court on 10-2-1978. Prior to that date Amendment Act 34 of 1976 has already come into force. By this Amendment Act Section 20AA was introduced. Section 20AA runs as follows:
Application of the Probation of Offenders Act, 1958 and Section 360 of the Cr. P.C. 1973.
Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Cr. P.C. 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.
The offence was committed on 24-11-1975. In the statement of' the accused recorded on 11th Aug. 1977 he had given his age as 18 years. On 10-2-1978 when the trial court's judgment was pronounced he must be running his 19th year. Even as per his statement he cannot be said to be less than 18 years on 11th Aug. 1977. Since the requirement of Section 20AA is that the person convicted of the offence should be under 18 years of age, it would be material for the purpose of this case to consider whether the age of the accused on the date of the offence or on the date of the trial courts judgment is to be taken into consideration. On 10-2-1978 and 11-8-1977 he was certainly not less than 18 years, but if his age on the date of the offence is to be considered as the crucial date, then the Probation of Offenders Act could be made applicable to him.
5. In Kamronnisa v. State of Maharashtra 1974 ACC 374, the Supreme Court while applying the provisions of the Probation of Offenders Act, 1958 had called for a report from the Probation Officer. That was a case in which the accused had been convicted under Section 379 I.P.C. and the question was whether he was less than 21 years on the date of the conviction. After a perusal of the report of the Probation Officer even though the age given therein was less than 21 years, the Supreme Court having regard to other circumstances of the case did not consider it proper to apply the provisions of the Probation of Offenders Act.
6. In Maqbulan v. State of U.P. 1977 ACC 45 a learned Judge of that Court held that the benefit of the Probation of Offenders Act, 1958 could be claimed ordinarily before the trial court which passes sentence. In any case, benefit cannot be given to an accused person without giving the prosecution an opportunity to show whether facts and circumstances exist which may deprive even an accused below 21 years of its benefit.
7. In Yaduraj Singh v. State of U.P. : 1977CriLJ340 the question of applicability of the Probation of Offenders Act again came up for consideration before the Supreme Court. It was held by Justice Chandrachud, who spoke for the Bench that the age given by the accused in their statements under Section 342, Cr. P.C. (now Section 313, Cr. P.C. 1974), has no special significance in the absence of a proper plea being taken under the Act. There was no reliable evidence showing the true ages of the accused. This new plea claiming benefit under the Act cannot be entertained.
8. On the facts of the case his Lordship has observed that if a proper plea of Probation of Offenders Act had been taken before the trial Judge, then that court could have got the accused medically examined in order to ascertain his true ages, if it doubts the correctness of the statement of the accused under Section 342 Cr. P.C.
9. In Raisul v. State of U.P. 1977 Cri LJ 1555 (SC) Justice Bhagwati while considering the question of age with regard to the accused, who has been convicted under Section 302, I.P.C. appears to have accepted the age given by the accused in his statement under Section 342, Cr. P.C. In that case the Sessions Judge after looking at the accused appellant thought that he must not be less than 24 years of age and the High Court also appeared to have accepted the estimate of the age given by the Sessions Judge as correct. His Lordship of the Supreme Court was of the view that neither the Sessions Judge nor the High Court were right in substituting their own estimates with regard to the age of the applicant and on the basis of such estimates rejecting the statement of the age as given by the applicant. He was of the view that appearance can be often deceptive. It was in these circumstances that the age of the accused as given in statement under Section 342 was accepted.
10. All these cases were prosecutions under the different provisions of the I.P.C., wherein the relevant age to be taken into consideration was 21 years. However, the observations made in those cases are of assistance in the instant case, in deciding the question whether the age given in the statement under Section 342, Cr. P.C. should be accepted or not, as the correct age of the applicant.
11. A more direct case of the Supreme Court which clarified the entire position has been reported in : AIR1963SC1088 , Ramji Missar v. State of Bihar. In this case Justice Ayyangar has very clearly and specifically laid down, that the crucial date for reckoning the age, where an appellate court modified the judgment of the trial Judge and when Section 6 becomes applicable to a person only on the decision of an appellate or a revisional Court, was the date upon which the trial court had to deal with the offender.
12. On a consideration of the above case law it appears to be clear that the relevant date to be taken into consideration while applying the provisions of the Probation of Offenders Act would be the date on which the trial court pronounces its judgment and not the date on which the accused got his statement recorded under Section 313, Cr. P.C. or the date of the offence. That appears to be reasonable also because ages as given by the accused in their statement under Section 313, Cr. P.C. are just approximate. If a plea of Offenders Act is specifically taken before the trial court in those circumstances an opportunity is provided to prosecution to contest the same and to the trial court to get the age of the accused tested and verified by his medical examination. But if such a plea is not taken then the rough estimate of age given in the statement under Section 313, Cr. P.C. cannot be taken as the guiding factor for extending the benefit of the Probation of Offenders Act. In the instant case, there is no satisfactory material on the record to indicate the exact age of the accused on the date when the trial court gave its judgment. Even if the age given by the accused in his statement recorded on 11th Aug. 1977 is taken into account, he would certainly be over 18 years of age, when the trial court delivered its judgment. In these circumstances, the benefit of the Probation of Offenders Act has been erroneously extended to the accused-applicant. The order of the Special Judicial Magistrate, Allahabad, therefore, suffers from an illegality on the question of imposition of sentence.
13. This appeal by the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad is hereby allowed. The conviction of the applicant is maintained for the offence under Section 7(i)/16(1)(a)(i) of the P. F. A. Act and he is sentenced to six months R. I. and a fine of Rs. 1000/-. The adulteration in fat contents has been cent per cent, as per report of the Public Analyst, and as such no lesser sentence can be imposed. In default of payment of fine he shall suffer further six months rigorous imprisonment. The applicant shall be taken into custody forthwith to serve out the sentence as awarded by this Court. The fine shall be deposited in the trial court within three months from today. The record of the case shall be sent down to the court below within three weeks from today.