Essay on Applicability of Probation Law in Public Welfare Offences

Essay on Applicability of Probation Law in Public Welfare Offences !

The judiciary has taken shifting stands in administering probation law to public welfare offences such as food adulteration, smuggling and violation of customs and excise laws, etc. A chronological survey of the cases relating to public welfare offences would bear testimony to the fact that till early seventies, the courts responded favourably to the inclusion of these offences within the purview of the probation law and were quite liberal in admitting such offenders to the benefit of probation regardless of the age and nature of the offence. This trend is clearly noticeable from the case law discussed in the succeeding pages.

In Salem Govinda Chetty v. State of Andhra Pradesh, the accused was convicted under Section 16 (1) read with Sections 7 and 2 (1) (g) of the Prevention of Food Adulteration Act, 1954 for selling “Mysore Pak” adulterated with metanil yellow coaltar dye and kesari dal, which was prohibited. Keeping in view the advanced age of 60 years of the accused who was a petty shopkeeper, the learned Judge set aside the order of sentence passed by the trial Court and released him on probation.

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In yet another case, namely, Municipal Corporation, Delhi v. Rattan Lal the respondent, on a complaint from the Municipal Corporation Delhi, was charged under Section 7 of the Prevention of Food Adulteration Act, 1954, for selling adulterated cream-biscuits and was convicted by the trial court for six months and a fine of rupees one thousand or four months’ simple imprisonment in default.

On appeal, the Additional District Judge upheld the sentence. The Municipal Corporation filed a revision to the High Court for enhancement of the sentence of the respondent keeping in view the gravity of the offence of adulteration. The respondent pleaded for the benefit of Section 4 of the Probation of Offenders Act. Allowing the benefit of release on probation, the Supreme Court observed that there was no legal bar to release offenders convicted for food adulteration on probation under the Act.

Again, in Vishnu Moorthi v. State of Mysore, the Court observed that even in an offence of smuggling which is an anti-social activity affecting the economy of the State, the offender can be released on probation of good conduct if there are special circumstances to believe that he has potentialities for reformation.

In re Oil case, the petitioner was guilty of an offence under the Gold Control Act, 1968 read with Section 61 of the Tamil Nadu Excise Act, 1971. Allowing the benefit of release on probation, the Madras High Court observed that the petitioner in the instant case was the first offender and the only bread winner of the poor family therefore, he could be admitted to the benefit of Section 4 of the Probation of Offenders Act and the sentence of imprisonment was set-aside.

In Rahmatulla v. State, the High Court of Karnataka ordered the release of the appellant on probation despite the fact that minimum sentence of three month’s rigorous imprisonment and a fine not less than Rs. 100 was prescribed by the Karnataka Excise Act for an offence under Section 32 of that Act.

The benefit of release on probation was also admitted to an accused who was convicted for an offence punishable under Section 27 (a) (ii) of the Drugs and Cosmetics Act, 1940. Taking a liberal view the Court in Delhi Administration v. Оm Prakash, allowed the benefit of probation to the accused with a note of caution as follows:

“The provisions of Section 4 of the Probation of Offenders Act are applicable when a person is convicted under the Drugs and Cosmetics Act. Although aware of the provisions of Section 27(a) of the Act, the legislature did not in its wisdom exclude the application of the Probation Act.”

The Supreme Court in Arvind Mohan v. Anil Kumar Biswas decided whether the offenders convicted under the Customs Act and the Defence of India Rules, 1962 could be allowed the benefit of Probation of Offenders Act. Answering in the affirmative, the Court observed that keeping in view the young age of offenders who were engaged in agriculture and purpose of purchasing smuggled gold being marriage of the sister of the appellant, the offenders could be released on probation and the High Court’s contention that the Probation of Offender Act has no application of offences involving contravention of the Customs Act or Gold Control Rules contained in Part III of the Defence of India Rules, 1962 could not be accepted.

The historic decision in Ishwer Das v. State of Punjab, however, made a departure from the Court’s liberal approach to offenders found guilty of offences involving public welfare. A tendency to keep such anti-social activities outside the purview of the probation law is clearly noticed in the subsequent decisions. Although the Supreme Court allowed the benefit of probation in the instant case, but leaving a note of caution, it observed:

“Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act, 1954, has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. 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 offences under the Prevention of Food Adulteration Act.”

In Jai Narayan v. Delhi Municipality, the Supreme Court refused to release on probation the offender who was found guilty of an offence of adulterating ‘patisa’ with unpermitted coaltar dye on the ground that it was an anti-social activity which was deleterious to consumer’s health.

In the case of Ram Prakash v. State of Himachal Pradesh, the Supreme Court ruled that there is no specific bar to extend the application of probation law to an offence under the Prevention of Food Adulteration Act, 1954, but it could not be granted if the offender was above twenty-one years of age. In this case, the appellant was convicted for selling adulterated milk of cow and buffalo and was sentenced to six months’ rigorous imprisonment and a fine of rupees two hundred under the Prevention of Food Adulteration Act.

The High Court denied the benefit of probation to the appellant on the plea that Section 4 of Probation of Offenders Act did not cover adulteration cases. The Supreme Court, however, repelled this contention of the High Court and allowed the benefit of probation to the appellant.

In Piyarey Lai v. State, the High Court of Allahabad stressed that the courts should not lightly resort to the provisions of the Probation of Offenders Act, particularly in case of offenders above twenty-one years of age.

The Court further observed that although the application of Probation of Offenders Act is not expressly barred under the Prevention of Food Adulteration Act, 1954, but the courts should not brush aside the consideration that the sale of adulterated articles of food have deleterious reaction upon the public health and therefore, should be sternly dealt with.

In the instant case, the accused Piyarey Lai was found guilty of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act selling Kampats (a variety of sweets) which were coloured red, yellow, orange and white by coaltar dye containing rhodamine.

The argument of the accused that he was not the manufacturer of the sweets and hence did not know about the impurity was not accepted by the Court. Dismissing the revision filed by the revisionist, the Court enhanced the sentence to six months with fine of rupees one thousand and in default to further suffer rigorous imprisonment for six months.

The Supreme Court’s decision in Pyarali K. Tejani v. M. R. Dange further supports the judicial trend for cautious approach to the application of probation law to adulteration cases. In this case, the accused was convicted for selling adulterated “supari” with prohibited sweetner saccharin and cyclamate under the Prevention of Food Adulteration Act, 1954. Disallowing the benefit of probation to the appellant, Mr. Justice V. R. Krishna Iyer (as he then was) observed:—

“The kindly application of the probation principle is negatived by the imperatives of social defence and the probabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations guised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, those economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process.”

In Public Prosecutor v. Nalan Suryanarayanamurthy the High Court of Andhra Pradesh taking a strict view held that in a case where the activity of the accused was distinctly anti-social, it would not be expedient to release the offender on probation. The accused in this case was found guilty of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954.

The Supreme Court took a firm stand in disallowing the benefit of probation to cases involving smuggling activities. Thus in Maharashtra v. Natwar Lal, the Court refused to extend the benefit of Probation of Offenders Act to a person convicted for smuggling under Section 135 (1) and (2) of the Customs Act, 1962 because smuggling of gold not only affects public revenue and public economy but it is also a menace to society.

The above contention also finds support in the Supreme Court’s decision in State of Maharashtra v. Kapoor Chand Kesarmal Jain, In this case, the appellant aged 24 years at the time of occurrence of crime, was tried for the offence of smuggling of gold and convicted by the trial court. On appeal, the High Court ordered the appellant to be released on probation for the reason that the gold recovered from his possession had already been confiscated and that he had stood trial for a long period of more than seven years and that he was financially not in a position to pay the fine imposed on him.

The State of Maharashtra, however, went in appeal to the Supreme Court against this judgment of the High Court. Allowing the appeal, the Supreme Court observed that keeping in view the nature of the offence, the character of the accused and the circumstances under which the offence was committed; it was not desirable to allow the benefit of probation law to such professional offenders.

In a subsequent case, namely, State of Gujarat v. V. A. Chauhan, the Supreme Court ruled that the benefit of probation cannot be extended to the accused convicted in an offence punishable with imprisonment for life. In the instant case, the accused was convicted under Sections 409, 467 and 471, I.P.C. and Section 5(1) (c) read with Section 5(2) of the Prevention of Food Adulteration Act, 1954.

The High Court of Gujarat allowed benefit of probation to the accused and he enjoyed the benefit for the past six years. In appeal, the Supreme Court observed that “the benefit of probation cannot be allowed to an accused convicted of an offence punishable with imprisonment for life but in the instant case, as the respondent is already given the benefit of the Probation of Offenders Act, we do not think it in the interest of justice to interfere with it at this stage, after so many years. The appeal was therefore, dismissed and the High Court’s decision was maintained by the Supreme Court.

In M/s Precious Oil Corporation & Ors. v. State of Assam, the accused was convicted for manufacture of lubricating oil and greases without licence under Section 3 of the Essential Commodities Act, 1955 read with Sec. 7 of the Lubricating Oils and Greases (Processing Supply & Distribution (Regulation) Order, 1987. His products and manufactured oil and greases were found to be adulterated, The Supreme Court dismissed the appeal of the appellant (accused) and denied him benefit of release on probation under clauses (3) and (4) on the ground that his activity was anti-social and he was a potential security risk.

The Apex Court in this case, inter alia observed:

“The Kindly application of the probation principles is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade imperil numerous innocents. He is a security risk. Secondly, these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process.”

The Court noted that the 47th Report of the Law Commission of India had also recommended exclusion of the Probation Act to social and economic offences.

An appraisal of the aforesaid cases involving socio-economic offences would reveal a remarkable change in the attitude of Courts towards these crimes. The Courts, while accepting in principle the need for liberal application of probation law, have not lost sight of the dangers involved in mild treatment of socio-economic offenders.

These offenders cannot be treated at par with other offenders in matters of punishment because of peculiar nature of their offence and the consequences flowing there from. These offences being injurious to public at large, need to be tackled sternly. Commenting on this aspect, Mr. Justice V.R. Krishna Iyer, the former Judge of the Supreme Court of India observed:

“Economic offences are often subtle murders practised on the community, sabotaging the national economy. They have to be tackled with a new seriousness…”

The above cases make it abundantly clear that liberal and kindly application of probation law to public welfare offences would hardly serve the ends of social justice. The Law Commission in its Forty-seventh Report has also reiterated that the Probation of Offenders should not be applicable to the socio-economic offences. The Commission, inter alia, observed:—

“…the justification of all sentencing is the protection of society. There are occasions when an offender is so anti-social that his immediate and sometimes prolonged confinement is the best assurance of society’s protection. The consideration of rehabilitation has to give way because of the paramount need for the protection of society.”