# Virendra Kumar Revisionist v. State of U.P

- **Citation:** (2022) 6 ILRA 1155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Criminal Revision No. 340 of 2004
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-revisionist-v-state-of-u-p-48637
- **Pages:** 5

## Headnote

Criminal Law - Probation of Offenders
Act,1938 - Section 4- Prevention of Food
Adulteration Act, 1954-Impugned orderconviction for guilty of offence u/s 7/16
Prevention of Food Adulteration Act, 1954 -
admitted fact that provision of section 16 not
attracted-Revision is entitled of the relief of the
Act,1938-Provisions of Act,1938 is not excluded
in cases under Prevention of Food Adulteration
Act-such
application
is
subject
to
non
applicability of section 16 of the Act,1938.

Revision allowed. (E-9)

List of Cases cited:

## Text

6 All. Virendra Kumar Vs. State of U.P.
1155
probative value of the material on record
cannot be gone into and the material brought
on record by the prosecution has to be
accepted as true. The material available on
record goes to show prima facie the case
against the accused, therefore, he cannot be
discharged. The court does not give any right
to accused to produce any document at the
stage of framing of charges.

37. In my opinion, the court cannot
become an appellate court and appreciation
of evidence by finding inconsistency in the
evidences
cannot
become
ground
for
discharging the accused. It is well settled
proposition that power of quashing the
criminal proceeding at the time of framing of
charge should be exercised very sparingly
with circumspection and in the rarest of rare
cases. I have to apply the test as to whether
uncontroverted allegations as made from the
record and evidence prima facie established
the offence or not.

38. In view of the aforesaid discussion,
I do not find any infirmity, illegality,
perversity in the orders dated 26.02.2022 and
06.04.2022; thus, the revision being devoid of
merit is dismissed.

39. No order as to costs.

40. However, it is made clear that the
observations made above will not influence
the trial in any manner and revisionist is at
liberty to seek any remedy available to him
under the law.
----------
(2022)06ILR A1155
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.
Criminal Revision No. 340 of 2004

Virendra Kumar ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri H.N. Singh, Sri B. Narayan Singh, Fatma
Khatoon, Sri Satyendra Prakash Srivastava,
Sri Gajendra Pratap Singh (Senior Adv.)

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law - Probation of Offenders
Act,1938 - Section 4- Prevention of Food
Adulteration Act, 1954-Impugned orderconviction for guilty of offence u/s 7/16
Prevention of Food Adulteration Act, 1954 -
admitted fact that provision of section 16 not
attracted-Revision is entitled of the relief of the
Act,1938-Provisions of Act,1938 is not excluded
in cases under Prevention of Food Adulteration
Act-such
application
is
subject
to
non
applicability of section 16 of the Act,1938.

Revision allowed. (E-9)

List of Cases cited:

1. Badan Singh Vs St. of U.P. in Criminal
Revision No. 2066 of 1973 (decided on
31.03.1976).

2. Isher Das Vs St. of Pun. : AIR 1972 SC 1295.

3. Jai Narain Vs Municipal Coirporation of Delhi :
AIR 1972 SC 2607

4. Pyarali K, Tejani Vs Mahadeo Ramchandra
Dange & ors. : AIR 1974 SC 28
(Delivered by Hon'ble Shamim Ahmed, J.)

1. This revision has been filed
challenging the judgment and order dated
28.01.2004 passed by learned Additional
District and Sessions Judge (F.T.C.),
District Sonbhadra, dismissing Criminal
Appeal No. 5 of 1998 (Virendra Kumar Vs.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
State), preferred against the judgment and
order dated 18.02.1998 passed by learned
Special
Judicial
Magistrate,
Duddhi,
District Sonbhadra in Criminal Case No.
228 of 1987 (State Vs. Shyam Sundar
Agrahari and another), under Section 7/16
of Food Adulteration Act, Police Station
Shakti
Nagar,
District
Sonbhadra,
convicting and sentencing the revisionist
under Section 7/16 of Prevention of Food
Adulteration Act, 1954 (hereinafter referred
to as the, ''Act, 1954') with a punishment of
six months rigorous imprisonment along
with a fine of Rs. 1,000/- with default
stipulation.

2. Heard Shri Gajendra Pratap Singh,
the learned Senior Counsel, assisted by Shri
Satyendra Prakash Srivastava, the learned
counsel for the revisionist, Shri Suresh
Bahadur Singh, the learned A.G.A. for the
State and perused the record.

3. Learned counsel for the revisionist
submits that the complaint was filed in the
year 1986 and the revisionist was convicted
and sentenced by the trial court for six
months rigorous imprisonment in the year,
1998, which judgment and order was
affirmed by the learned appellate court in
the year, 2004. The date of birth of the
revisionist is 25.10.1968 and on the date of
alleged incident he was aged about 17
years, 07 months 23 days and as such at
that time he was minor and by now 36
years have already been elapsed. The delay
in trial deprives the right of the revisionist
of speedy trial and he may be given benefit
of first offender under the provisions of the
U.P. First Offenders Probation Act, 1938
(hereinafter referred to as the, ''Act, 1938').
In support of his submission he placed
reliance upon a judgment given by this
Court in the case of Badan Singh Vs. State
of U.P. in Criminal Revision No. 2066 of
1973 (decided on 31.03.1976).

4. From perusal of impugned order of
conviction it appears that the accusedrevisionist was held guilty for an offence
punishable
under
Section
7/16
of
Prevention of Food Adulteration Act as he
was found keeping exposed for sale Gram
Pulses which was found adulterated with
9.86% Khesari which is prohibited. The
article was thus adulterated within the
meaning of clause (f) of sub-Section (1) of
Section 2 of the Act, 1954. It was not
disputed that the provision to Section 16 of
the Act was not attracted and as such he
was
liable
to
be
punished
with
imprisonment for a term not less than six
months and with fine of Rs. 1,000/-.

5. The relevant portion of sub-section
(1) of Section 4 of the Act, 1938 reads as
under:

(1) When any person is convicted
of an offence not punishable with death or
transportation for life, and no previous
conviction is proved against the offender, if
it appears to the court before which he is
convicted, regard being had to the age,
character, antecedents or physical or mental
condition of the offender and to the
circumstances in which the offence was
committed that it is expedient that the
offender should be released on probation of
good conduct 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 behaviour :
6 All. Virendra Kumar Vs. State of U.P.
1157

Provided ..........

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.

6. Sub-section (1) of Section 4 of the
Act is applicable to persons of all ages
subject to conditions which have been
specified therein. It is applicable to a
person convicted of an offence not
punishable with death or transportation of
life provided that no previous conviction is
proved against him and further if it appears
to the court before which is convicted that
it is expedient that he be released on
probation of good conduct regarding had to
the age, character, antecedents or physical
mental condition of the offender and to the
circumstances in which the offence was
committed. Section 4(1) of the Act, 1938 is
applicable to all offences punishable with a
less severe sentence than death or life
imprisonment. It is clear that there the
conviction is for an offence of less than a
certain degree of gravity, the degree of
gravity being measured by maximum
punishment which can be imposed for the
offence, the benefit of the section can be
extended to such an offender. No other
exception with regard to the nature of the
offence is contemplated by the provision.

7. The second proviso to Section 4(1)
of the Act, 1938 lays down that if a person
under 21 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 and the maximum punishment
provided for the offence does not exceed
six months, the court shall extend the
benefit of the section unless, for special
reasons to be recorded in writing, the court
does not consider it proper to extend the
benefit of the provision to him. While in
the case of offenders above the age of 21
years, absolute discretion is given to the
court, in the case of the offenders below the
age of 21 years, an injunction is issued to
the court not to sentence the young
offenders to imprisonment unless the court
for special reasons does not consider it
proper to extend to him the benefit of the
First Offenders Probation Act.

8. Sub-section (1) of Section 16 of the
Act, 1954 provides the punishment which
may be awarded to a person found guilty of
the various offences under that Act. In
addition the penalty to which he may be
liable under Section 6, he shall be
punishable with imprisonment for a term
which shall not be less than six months, but
it may extend to six years and with fine
which shall not be less than Rs. 1,000/-.
The proviso lays down that in case of the
offences specified therein, a lesser sentence
may be imposed for adequate and special
reason be mentioned in the judgment.

9. As observed above, Section 4 of
the First Offenders Probation Act does not
contemplate any exception other than those
specifically mentioned therein, i.e., (1) the
offence is not punishable with death or
transportation for life, (2) no previous
conviction is proved against the offender,
(3) the court finding him guilty is of the
opinion that having regard to the age,
character, antecedents or physical and
mental condition of the offender and to the
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances in which the offence was
committed, it is expedient to release him on
probation of good conduct and (4) 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 behaviour.
In case of a person under 21 years of age,
the proviso imposes a duty on the court not
to sentence him to imprisonment unless for
special reasons to be recorded in writing, it
does not consider it proper to extend the
benefit of the First Offenders' Probation
Act. There is nothing in the Offenders Act
to indicate that its operation is excluded in
the case of persons found guilty of offences
undo the Prevention of Food Adulteration
Act. In the absence of a clear indication to
that effect, the provisions of the Offenders
Act would be applicable to a person found
guilty of offences under the Prevention of
Food Adulteration Act in spite of the fact
that a minimum sentence is provided for in
respect of certain offences committed under
that Act.

10. The question of the applicability
of the Probation of Offenders Act, 1938, to
the case of a person found guilty of an
offence under the Prevention of Food
Adulteration Act came up for consideration
before the Supreme Court in Isher Das v.
State of Punjab : AIR 1972 SC 1295. The
Supreme Court held that the provisions of
the Probation of Offenders Act is not
excluded in the case of the persons found
guilty of the offences under the Prevention
of Food Adulteration Act. No distinction
was made between a case which entails the
minimum
sentence
prescribed
under
Section 1(c)(1) and a case to which the
proviso to that section was attracted. The
court,
however,
cautioned
that
the
provisions of the Probation of Offenders
Act should not be lightly resorted to in
view of the fact that 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. It
is true that the decision of the Supreme
Court was influenced by the fact that
Section 4(1) of the Probation of Offenders
Act contained the non obstinate clause
"notwithstanding anything contained in any
other law for the time being in force" and
that Section 18 of the Act excluded from its
operation only the offence under Subsection (2) of Section 5 of the Prevention of
Corruption Act and further that the First
Offenders' Probation Act was enacted
subsequent to the enactment of the
Prevention of Food Adulteration Act, but
that
would
make
no
difference
in
determining the question whether the
operation of the Offenders Act is excluded
in the case of persons found guilty of
offences under the Prevention of Food
Adulteration Act, The underlying object of
both the Central and the State Acts
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 associated with hardened
criminals. That object is further emphasised
in enacting that a person who is less than
21 years of age and is convicted for an
offence punishable with imprisonment not
exceeding six months, the court is under a
duty not to sentence him to imprisonment
unless there exists special reasons which
justify such a course.

11. In Jai Narain v. Municipal
Coirporation of Delhi : AIR 1972 SC
2607, the court reiterated the principle that
the
provisions
of
the
Probation
of
Offenders Act apply to persons found
guilty under the Prevention of Food
6 All. Sachin Vs. State of U.P. & Anr.
1159
Adulteration Act, although on the facts and
circumstances of the case, the court came
to the conclusion that it was neither
expedient nor in consonance with the
object with which the Prevention of Food
Adulteration Act was passed to apply
Section 4 of the Probation of Offenders Act
to the case in hand. The principle laid down
in Isher Das's case (supra) was again
affirmed in Pyarali K, Tejani v. Mahadeo
Ramchandra Dange and others : AIR
1974 SC 28. In the words of Iyer, J.:

"The rehabilatory purpose of the
Probation of Offenders Act, 1958, is
pervasive enough technically to take within
its wing? an offence even under the Act."

12. The principle that emerges from
these decisions is that the Probation of
Offenders Act apply to offences under the
Prevention of Food Adulteration Act, Its
operation cannot be whittled down or
circumscribed by the fact that a minimum
sentence is provided for certain offences
and no discretion is left to the court in that
matter.

13. In view of above, this Court is of
the view that the benefit of the First
Offenders Probation Act can be allowed to
an accused who is found guilty of an
offence under the provisions of Prevention
of Food Adulteration Act (Act No. 37 of
1954), to which the proviso to Section 16
of the Act does not apply.

14.

Considering
the
fact
and
circumstance of the case, I am of the view
that the benefit of provision of Probation of
Offender Act, 1958 should be provided to
the accused/appellant.

15. Thus, the revision is partly
allowed. The judgment and order dated
28.01.2004 passed by learned Additional
District and Sessions Judge (F.T.C.),
District Sonbhadra, dismissing Criminal
Appeal No. 5 of 1998(Virendra Kumar Vs.
State), preferred against the judgment and
order dated 18.02.1998 passed by learned
Special
Judicial
Magistrate,
Duddhi,
District Sonbhadra in Criminal Case No.
228 of 1987 (State Vs. Shyam Sundar
Agrahari and another), under Section 7/16
of Food Adulteration Act, Police Station
Shakti Nagar, District Sonbhadra, so far as
it relates with the conviction of revisionist
is maintained, but the sentence is modified.
Instead of sending the revisionist, Virendra
Kumar, to jail, he is given benefit of
Section 4 of the Probation of Offenders
Act, 1938. He is directed to file two
sureties bonds of Rs.20,000/- and a
personal bond of same amount to the effect
that he shall maintain peace and good
behaviour and shall not commit any
offence during the period of one year. The
bonds aforesaid be filed by him within two
months from the date of this judgment
before
District
Probation
Officer,
Sonbhadra.

16. Copy of this judgment along with
lower court record be sent to the District
Judge, Sonbhadra with immediate effect for
compliance.
----------
(2022)06ILR A1159
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 119 of 2022

Sachin ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties