Case: Ram Parkash Vs. State of Himachal Pradesh

and should be reduced. In that connection an alternative argument was raised to persuade the Court to give the benefit of the probation of Offenders Act of 1958 (hereinafter called the Probation Act) to the appellant. It was observed by the High Court that the provisions of the Act were of such a nature that the matter could not be treated lightly. As regards the benefit of the Probation Act it was observed that Section 4 thereof was not meant to cover cases of the present nature. Moreover it was for the Trial Court to take action without expressing any opinion as to whether Section 4 was applicable the Court unhesitatingly expressed its view that no action should be taken in a case of this kind under the Probation Act. The Revision was dismissed. No notice for enhancement of the sentence relating to fine was issued although the minimum fine that had to be imposed under the Act the Act was Rupees 1000/-. The reason for not doing so was that the State had not moved for enhancement of the sentence of fine.5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23, sub-section (2) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have been accepted.None of these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6. The only question which requires consideration is whether the provisions of the Probation Act could be applied to the appellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/- 31-1-1972 = (reported in AIR 1972 SC 1295 )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under the Act. Counsel for the appellant agrees that since the age of the appellant was over 21 years, namely, 26 years his case could fall only under Section 4 of the Probation Act. Sub-section (1) of Section 4 of that Act is in the following terms :"When any person is found guilty of having committed an 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 keepd the peace and be of good behaviour :Provided........ ......... ........ ........ ..."It was, however, observed in that case that adulteration of food is a menace to public health. The 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 and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Our attention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act. These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing 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 age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, 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 (Rattan Lal v. State of Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444 ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088 .)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. The learned counsel for the appellant has sought to raise a number of points before us. These points are :1. The Rule 44 (k) framed under the Act as amended was not placed before the Parliament in accordance with the provisions of Section 23,) of the Act.2. No offence had been made out for contravention of Rule 44 (k) of the Rules.3. The charges as framed was defective and it prejudiced trial of the appellant.4. The report of the Public Analyst was not clear and ought not to have beenof these points was either raised or agitated before the Courts below and we see no reason or justification in entertaining the same for the first time here in this appeal.6.The only question which requires consideration is whether the provisions of the Probation Act could be applied to theappellant. The matter is no longer res integra and this Court has in a case (Isher Das v. The State of Punjab, Cri. A. No. 64 of 1969, D/= (reported in AIR 1972 SC 1295  )) under the Act laid down that benefit could be given of the provisions of the Probation Act to persons who are found guilty of offences under thewas, however, observed in that case that adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating thatevil 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 and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied. Ourattention has been drawn to certain decisions which deal with a different point altogether, namely, the meaning of the word may under Section 11 of the Probation Act.These decisions are of a different nature altogether and involve different points. But even according to those decisions the benefit that it is to be given under Section 3 or Section 4 of the Probation Act is subject to the limitations laid down in those provisions. These decisions do not support the proposition that the word may in Section 4 of the Probation Act means must. On the contrary, it has been made clear in categorical terms in these judgments that the provisions of the Probation Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing 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 age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct, 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 (Rattan Lal v. State of Punjab, (1964) 7 SCR 676   = (AIR 1965 SC 444  ) and Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR 745 = (AIR 1963 SC 1088  .)