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PETITIONER: ISHAR DAS

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT31/01/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M.

CITATION:  1972 AIR 1295            1972 SCR  (3) 312  1973 SCC  (2)  65  CITATOR INFO :  R          1972 SC2434  (6)  RF         1972 SC2607  (6)  R          1973 SC 780  (6)  F          1974 SC 228  (20)  R          1974 SC1818  (15)  RF         1977 SC  56  (7)

ACT: Probation  of Offenders Act, 1958, s. 4(1) Conviction  under Prevention  of Food Adulteration Act, 1954-Accused below  20 years-Minimum  sentence of imprisonment and fine  prescribed as  punishment  for offence If Probation  of  Offenders  Act applicable.

HEADNOTE: The appellant, who was less than 20 years was convicted  for an  offence  under  s.  7(1)  of  the  Prevention  of   Food Adulteration  Act, 1954, and was ordered to furnish  a  bond under  s.  4 of the Probation of Offenders Act,  1958.   The High  Court  revised  the sentence, because  s.  16  of  the Prevention  of  Food Adulteration Act Prescribed  a  minimum sentence  of  imprisonment for 6 months and a  fine  of  Rs. 1000. Allowing the appeal to this Court, HELD  :  Section  4(1) of the  Probation  of  Offenders  Act contains  the non-obstante clause  notwithstanding  anything contained in any other law for the time being in force,  and hence  the  section would have overriding effect  and  shall prevail  if its other conditions are  fulfilled;  especially when  the  Probation of Offenders Act was  enacted  in  1958 subsequent  to  the enactment in 1954 of the  Prevention  of Food Adulteration Act. [317 A-C; 318 D-E] According  to s. 18 of the Probation of Offenders Act,  that Act shall not affect s. 5(2) of the Prevention of Corruption Act   which   also   prescribes  a   minimum   sentence   of imprisonment.   The fact that only one offence for  which  a minimum  sentence  of imprisonment is prescribed,  has  been specified shows that in the case of other such offenses, the provisions of the Probation of Offenders Act can be  invoked [317H; 318 A-C] Assuming  there  is  some ambiguity,  the  principle  to  be applied  in  construing a penal statute is that  such  doubt

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should  be  resolved in favour of the person  who  would  be liable to the penalty. [318 D] Adulteration  of food is a menace to public health  and  the Prevention  of  Food Adulteration Act has  been  enacted  to eradicate  the evil.  Therefore, courts should  not  lightly resort  to the provisions of the probation of Offenders  Act in  the case of persons above 21 years of age; but  the  Act makes  a  distinction between offenders below 21  years  and those above that age.  As regards person under 21 years, the policy of the law is that such a person, even in the case of conviction  under the Prevention of Food  Adulteration  Act, should not be deprived of the advantage of the Probation  of Offenders Act which is a beneficent measure and reflects and incorporates  the  modern  approach  and  latest  trend   in penology. [318 G-H; 319 A-C] As the object of the Probation of Offenders Act is to  avoid imprisonment  of a person covered by its provision,-,,  that object  cannot  be set at naught by imposing a  sentence  of fine  which  would entail imprisonment in case  of  default. [319 D] Rattan Lal v. State of Punjab [1964] 7 S.C.R. 676 and  Ramji Missir v. State of Bihar [1962] Supp. 2 S.C.R. 745, referred to. 313

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No  64  of 1969. Appeal  by special leave from the judgment and  order  dated December  10, 1968 of the Punjab and Haryana High Court  in. Criminal Revision No. 1200 of 1967.  R. L. Kohli, for the appellant. V. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Khanna, J. Ishar Das appellant was convicted by the judicial magistrate  1st class Patiala for an offence  under  section 7(1)  of the Prevention of Food Adulteration Act, 1954  (Act No. 37 of 1954) read with section 16(1) (a) (i) of that  Act and  was  ordered  to furnish bond under section  4  of  the Probation  of  Offenders Act.  Bedi, J. of  the  Punjab  and Haryana  High Court during the course of the  inspection  of the  Court  of  trial  magistrate, took  the  view  that  an improper  order  had  been made in the  above  case  by  the magistrate.   The  High Court thereupon of  its  own  motion directed that a notice be issued to the appellant.  The case was  thereafter  posted before Bedi, J.  The  learned  judge referred to the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000 had been prescribed   by  section  16  of  the  Prevention  of   Food Adulteration Act.  It was also observed that offenses  under the  Prevention  of Food Adulteration Act were  against  the public  and  called  for deterrent  punishment.   Order  was consequently  made  that  the  appellant  instead  of  being released  on his furnishing a bond, should be  sentenced  to undergo  simple imprisonment for a period of six months  and to pay a fine of Rs. 1,000.  In default of payment of  fine. the appellant was ordered to undergo simple imprisonment for a  further  period of one and a half month.   The  appellant thereafter filed this appeal by special leave to this Court. At  the time the leave was granted. it was ordered that  the appeal would be limited to the question of sentence only. The  prosecution  case is that on August 1,  1966  the  Food Inspector  Patiala took- a sample of two cups of  ice  cream

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from  the appellant from Phul Cinema canteen on  payment  of three  rupees.  Part of the ice cream was sent for  analysis to Public Analyst Chandigarh.  The Analyst reported that the ice  cream  was  adulterated, being deficient  in  milk  fat contents  to  the  extent of 77 per  cent  and  total  solid contents  to the, extent of 7 per cent.  The  appellant  was thereafter   prosecuted  on  the  allegation  that  he   had committed an offence under section 7(1) of the Prevention of Food  Adulteration Act read with section 16 (1 ) (a) (i)  of that 314 Act.  Charge was framed on that count against the  appellant and  he  pleaded guilty to the same.  The  trial  magistrate took  the  view that the appellant, who was  aged  about  20 years,  was in a repentant mood.  The appellant was, in  the circumstances,  directed to furnish bond under section 4  of the  Probation  of Offenders Act.  The bond  was  thereafter furnished  by the appellant.  On revision, the sentence  was altered by the High Court as mentioned above. In appeal Mr. Kohli on behalf of the appellant has  referred to  the  matriculation  certificate which  was  produced  on behalf  of the appellant and according to which the date  of birth  of the appellant was May 8, 1947.  It is argued  that as the age of the appellant on the date of his conviction by the  trial magistrate was less than 20 years, the  appellant was  rightly  given  the benefit of the  provisions  of  the Probation  of Offenders Act.  The High Court,  according  to the  learned counsel, was in error in awarding the  sentence of imprisonment and fine to the appellant.  As against  that Mr.  Mahajan on behalf of the respondent has contended  that the  provisions of the Probation of Offenders Act cannot  be invoked by an accused convicted of an offence under  section 7  read with section 16 of the Prevention of Food  Adultera- tion Act.  Mr. Mahajan has not disputed that the age of  the accused was less than 20 years on the date of his conviction by  the  trial  magistrate, but, according  to  the  learned counsel, that fact could make no difference. There  is, in our opinion, considerable force in  the  stand taken on behalf of the appellant by his learned counsel  and we find ourselves unable to accede to the submission made on behalf of the respondent State.  The Probation of  Offenders Act  received ,the assent of the President on May  16,  1958 and  was  published in the Gazette of India  dated  May  19, 1958.  According to subsection (3) of section 1 of that Act, it  shall  come into force in a 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.  The fact that the Act was  in force in the State of Punjab before the sample of ice  cream was  taken from the appellant has not been  disputed  before us.   ’Section  3  of the Act gives power to  the  court  to release  certain offenders after admonition.   According  to that  section,  where any person is found guilty  of  having committed an offence punishable under section 379 or section 380  or  section 381 or section 404 or section  420  of  the Indian   Penal   Code  or  any   offence   punishable   with imprisonment  for not more than two years, or with fine,  or with both under the Indian Penal Code or any other law,  and no  previous conviction is proved against him and the  Court by   which  the  person  is  found  guilty  is  of   opinion that,  .having  regard  to the  circumstances  of  the  case including the nature 315 of  the  offence and the character of the  offender,  it  is expedient so to do, then, notwithstanding anything contained

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in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on  probation of good conduct under section 4,  release  him after due admonition.  The relevant part of sub-section  (1) of  section  4 and sub-section (1) of section 6 of  the  Act read as under :               "4(1)  When  any  person is  found  guilty  of               having  committed  on offence  not  punishable               with  death or imprisonment for life  and  the               Court  by which the person is found guilty  is               of   opinion  that,  having  regard   to   the               circumstances of the case including the nature               of  the  offence  and  the  character  of  the               offender,  it is expedient to release  him  on               probation     of    good    conduct,     then,               notwithstanding  anything  contained  in   any               other  law  for the time being in  force,  the               Court  may, instead of sentencing him at  once               to any punishment, direct that he be  released               on  his entering into a bond, with or  without               sureties, to appear and receive sentence  when               called upon during such period, not  exceeding               three  years, as the Court may direct, and  in               the meantime to keep the peace and be of  good               behavior."               "6(1)  When any person under twenty-one  years               of age is found guilty of having committed an,               offence punishable with imprisonment (but  not               with  imprisonment  for life),  the  Court  by               which  the  person is found guilty  shall  not               sentence  him  to imprisonment  unless  it  is               satisfied   that,   having   regard   to   the               circumstances of the case including the nature               of  the  offence  and  the  character  of  the               offender,  it would not be desirable  to  deal               with him under section 3 or section 4, and  if               the Court passes any sentence of  imprisonment               on  the offender, it shall record its  reasons               for doing so." The Probation of Offenders Act, as observed by Subba Rao, J. (as  he then was) speaking for the majority in the  case  of Rattan  Lal  v. State of Punjab(1), is a  milestone  in  the progress  of the modem liberal trend of reform in the  field of  penology.   It is the result of the recognition  of  the doctrine  that the object of criminal law is more to  reform the individual offender than to punish him.  Broadly stated, the  Act distinguishes offenders below 21 years of  age  and those above that age, and offenders who are guilty of having committed  an offence punishable with death or  imprisonment for  life  and  those who are guilty of  a  lesser  offence. While in the case of offenders who are above the (1) [1964] 7 S.C.R. 676. 316 age of 21 years absolute discretion is given to the court to release  ,them  after  admonition or on  probation  of  good conduct,  subject  to  the  conditions  laid  down  in   the appropriate provisions of the Act, in the case of  offenders below  the age of 21 years, an injunction is issued  to  the court  not  to sentence them to imprisonment  unless  it  is satisfied  that, having regard to the circumstances  of  the case, including the nature of the offence and the  character of  the  offenders, it is not desirable to  deal  with  them under sections 3 and 4 of the Act. It  is  Manifest from plain reading of sub-section (1  )  of section  4 of the Act that it makes no  distinction  between

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persons  of the age of more than 21 years and those  of  the age  of less than 21 years.  On the contrary, the said  sub- section  is  applicable to persons of all  ages  subject  to certain conditions which have been specified therein.   Once those  conditions are fulfilled and the  ,other  formalities which are mentioned in section 4 are complied with, power is given  to the court to release the accused on  probation  of good conduct.  Section 6 of the Act deals specifically  with persons  under twenty-one years of age convicted by a  court for  an  offence  punishable with  imprisonment  other  than imprisonment  for  life.  In such a case  an  injunction  is issued  to the court not to sentence the young  offender  to imprisonment,  unless the court is of the view  that  having regard to the circumstances of the case including the nature of  the offence and the character of the offender (it  would not  be  desirable  to release him  after  admonition  under section 3 or on probation of good conduct under section 4 of the Act. Sub-section  (1)  of section 16 of the  Prevention  of  Food Adulteration  Act  provides  the  punishment  which  may  be awarded  to  a person found guilty of the  various  offenses under that Act.  According to the above sub-section, such  a person,  in addition to a penalty to which he may be  liable under  section  6,  with  which we  are  not  concerned,  be punishable  with imprisonment for a term which shall not  be less  than six months but which may extend to six years  and with fine which shall not be less than one thousand  rupees. There  follows a proviso, according to which the court  May, in case of some of the offenses under the Act, for  adequate and special reasons to be mentioned in the judgment,  impose a  sentence  of  imprisonment for a term of  less  than  six months  or  of fine of less than one thousand rupees  or  of both  imprisonment  for a term of less than six  months  and fine of less than one thousand rupees. The  question  which  arises for  determination  is  whether despite the fact that a minimum sentence of imprisonment for a  term of six months and a fine of rupees one thousand  has been  prescribed  .by  the legislature for  a  person  found guilty of the offence under 317 the  Prevention  of  Food Adulteration Act,  the  court  can resort to the provisions of the Probation of Offenders  Act. In this respect we find that sub-section (1) of section 4 of the   Probation   of  Offenders  Act  contains   the   words "notwithstanding anything contained in any other law for the time being in force".  The above non-obstante clause  points to  the conclusion that the provisions of section 4  of  the Probation of Offenders Act would have overriding effect  and shall  prevail  if  the  other  conditions  prescribed   are fulfilled.   Those conditions are (1) the accused  is  found guilty  of having committed an offence not  punishable  with death  or imprisonment for life, (2) the court  finding  him guilty  is  of  the  opinion  that  having  regard  to   the circumstances  of  the  case, including the  nature  of  the offence  and the character of the offender, it is  expedient to  release  him on probation of good conduct, and  (3)  the accused in such an event enters into a bond with or  without sureties  to  appear and receive sentence when  called  upon during  such period not exceeding three years as  the  court may direct and, in the meantime, to keep the peace and be of good  behavior.  Sub-section (1) of section 6 of  the  above mentioned  Act, as stated earlier, imposes a duty  upon  the court  when it finds a person under 21 years of age,  guilty of  an  offence  punishable  with  imprisonment  other  than imprisonment  for life, not to sentence him to  imprisonment

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unless  the  court is satisfied that, having regard  to  the circumstances  of  the  case, including the  nature  of  the offence  and the character of the offender, it would not  be desirable to deal with him under sections 3 or 4 of the  Act but to award a sentence of imprisonment to him.  The  under- lying  object of the above provisions obviously is  that  an accused person should be given a chance of reformation which he  would  lose  in case he is incarcerated  in  prison  and associates  with hardened criminals.  So far as persons  who are  less  than  21  years of  age  are  concerned,  special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility  of their  being  subjected  to  the  pernicious  influence   of hardened criminals.  It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted  for an offence not punishable  with  imprisonment for  life, he shall not be sentenced to imprisonment  unless there  exist  reasons  which justify such  a  course.   Such reasons have to be recorded in writing. According  to section 18 of the Probation of Offenders  Act, the  aforesaid  Act shall not affect the provision  of  sub- section  (2)  of section 5 of the Prevention  of  Corruption Act,  1947 (Act 2 of 1947).  The last  mentioned  provision, namely,  sub-section (2) of section 5 of the  Prevention  of Corruption  Act,  prescribes,  in  the  absence  of  special reasons,  a minimum sentence of imprisonment for a  term  of not less than one year for those convicted 318 under  section  5  of  that  Act.   If  the  object  of  the legislature  was  that the provisions of  the  Probation  of Offenders Act should not apply to all cases where a  minimum sentence of imprisonment is prescribed by the statute, there was no reason to specify subsection (2) of section 5 of  the Prevention of Corruption Act in section 18 of the  Probation of Offenders Act.  The fact that out of the various offenses for  which  the  minimum sentence is  prescribed,  only  the offence under sub-section (2) of section 5 of the Prevention of  Corruption Act has been mentioned in section 18  of  the Probation  of Offenders Act and not the other  offenses  for which the minimum sentence is prescribed, shows that in case of  such  other  offenses the  provisions  of  Probation  of Offenders Act can be invoked. The  provisions  of  Probation  of  Offenders  Act,  in  our opinion, point to the conclusion that their operation is not excluded  in  the case of persons found guilty  of  offenses under  the  Prevention of Food Adulteration  Act.   Assuming that there was reasonable doubt or ambiguity, the  principle to  be applied in Construing a penal act is that such  doubt or ambiguity should be resolved in favour of the person  who would   be   liable   to  the  penalty   (see   Maxwell   on Interpretation of Statutes, p. 239, 12th Edition).  It ha,,; also to be borne in mind that the Probation of Offenders Act was  enacted in 1958 subsequent to the enactment in 1954  of the Prevention of Food Adulteration Act.  As the legislature enacted the Probation of Offenders Act despite the existence on  the statute book of the Prevention of Food  Adulteration Act,  the  operation  of  the  provisions  of  Probation  of Offenders  Act  cannot  be whittled  down  or  circumscribed because  of  the provisions of the earlier  enactment,  viz. Prevention  of Food Adulteration Act.  Indeed, as  mentioned earlier,  the  non-obstante  clause  in  section  4  of  the Probation  of Offenders Act is a clear manifestation of  the intention  of  the legislature that the  provisions  of  the Probation of Offenders Act would have effect notwithstanding any  other law for the time being in force.  We may also  in

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this context refer to the decision of this Court in the case of  Ramji  Missir v. State of Bihar(1)  wherein  this  Court while  dealing with the Probation of Offenders Act  observed that   its  beneficial  provision,,  should   receive   wide interpretation and should not be read in a restricted sense. Adulteration  of  food is a menace to  public  health.   The Prevention  of Food Adulteration Act has been  enacted  with the  aim  of  eradicating  that  anti-social  evil  and  for ensuring  purity  in the articles of food.  In view  of  the above object of the Act and the intention of the legislature as  revealed  by  the  fact  that  a  minimum  sentence   of imprisonment for a period of six months (1) [1962] Suppl. 2 S.C.,R. 745. 319 and  a fine of rupees one thousand has been prescribed,  the courts  should not lightly resort to the provisions  of  the Probation of Offenders Act in the case of persons above,  21 years  of age found guilty of offenses under the  Prevention of Food Adulteration Act.  As regards persons under 21 years of  age, however, the policy of the law appears to  be  that such  a  person  in  spite  of  his  conviction  under   the Prevention of Food Adulteration Act, should not be  deprived of  the advantage of Probation of Offenders Act which  is  a beneficent measure and reflects and incorporates the  modern approach and latest trend in penology. Mr. Mahajan has argued that if the trial magistrate took the view  that the accused-appellant in view of Ms  age,  should not  be  sentenced  to  undergo  imprisonment,  the  learned magistrate should still have imposed the sentence of fine as prescribed  by subsection (1) of section 16 of the Act.   In this  respect we are of the opinion that a sentence of  fine also carries with it the consequence of imprisonment in case the  accused  fails  to  pay the fine.   As  the  object  of Probation  of Offenders Act is to avoid imprisonment of  the person  covered  by  the provisions of that  Act,  the  said object  cannot  be set at naught by imposing a  sentence  of fine  which  would necessarily entail imprisonment  in  case there is a default in payment of fine. The High Court in the present case did not consider the pro- visions of the Probation of Offenders Act and its  attention does  not  appear  to, have been invited  to  the  mandatory provisions  of section 6 of that Act.  In view of  the  fact that the accused was less than 20 years of age and  appeared to be in a repentant mood, the trial court took action under section  4  of  the Probation of Offenders  Act.   The  High Court,  in  our view, was in error in interfering  with  the above order of the trial magistrate.  We, therefore,  accept the  appeal,  set  aside the order of  the  High  Court  and restore that of the trial magistrate. V.P.S.                Appeal allowed. 8-L887SupCI/72 320