ORDER
Chandra Reddy, J.
1. The accused was charged before the Sub-Magistrate, Kamalapuram under Sections 4-A and 4(1)(b) of the Madras Prohibition Act. The case against him was that he was found in a state of drunkenness and was also distilling I. D. Arrack. In support of the prosecution case two witnesses were examined, P.W. 1, the Prohibition Sub-Inspector and P.W. 2, the Sub-Inspector of the Striking Force. The accused, while admitting that he was found in a state of drunkenness, denied that he was distilling ID Arrack at; the scene of offence. The Magistrate acquitted him under Section 4(1)(b) of the Madras Prohibition Act, as in his opinion it was not made out beyond reasonable doubt that he was manufacturing illicit arrack. He convicted him under Section 4-A of the Madras Prohibition Act having regard to his admission, But he passed no sentence on the accused as he thought that 'the accused was truthful from the beginning to the extent of his drunkenness and also by reason of the fact that a distillation case is put up against him, which he could successfully rebut,' In that view, he directed release of the accused on his executing a bond for Rs. 200/- With one surety in a like sum for good behaviour during a period of one year under Section 4(1) of the Madras Probation of Offenders Act. The State Government seeks to have this order revised.
2. It is urged in support of this petition (1) that Section 4(1) of the Madras Probation of Offenders Act could not be invoiced in favour of persons convicted under the Madras Prohibition Act; and (2) that the order is unsustainable as it does not conform to the requirements of Section 4(1) of the Madras Probation of Offenders Act.
3. In order to appreciate the contentions put forward on behalf of the State, it is necessary to refer to the terms of Section 4(1) of the Madras Probation of Offenders Act. The section says:
When any person not under 21 years of age is found guilty of an offence punishable with imprisonment for not more than seven years, or when any person under 21 years of age or any woman is found guilty 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 by which he is found guilty 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 surety 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.
The intendment of this seems to be the same as that of Section 562, Criminal Procedure Code and the language of this section is identical with Section 562(1), Criminal Procedure Code. It is seen that so far as persons above 21 years of age are concerned, the section is restricted to offences punishable with imprisonment for not more than seven years. There is no warrant for reading a restriction into this section as regards the nature of offences, excepting the one mentioned therein. The section does not show that it is applicable only to offences under particular enactments. If so, there is no reason why the benefit of this section cannot be extended to offences under the Madras Prohibition Act
4. Reliance is placed by the learned Public Prosecutor in support of the first contention on a ruling given by Justice Panchapakesa Iyer in State v. V. Papanna 1953 Mad W.N. (Cr.) 79 : : AIR1953Mad877 . One of the points for consideration in that case was whether the District Magistrate was justified in not applying the provisions Of Section 562(1), Criminal Procedure Code, to the case which also arose under the Madras Prohibition Act. The observations of the learned Judge in dealing with the question are pertinent:
I agree that this section should not be applied to cases like these normally. To apply Section 562(1), Criminal Procedure Code, to all first offences of drunkenness is neither the intention of the Law nor will it be consistent with sense or commonsense. Nor can all first offenders claim action under Section 562. Thus a man committing murder for the first time cannot invoke the aid of Section 5G2(1), Criminal Procedure Code, nor can normally offences under Prohibition Act be properly dealt with under Section 562(1), Criminal Procedure Code. There will of course be exceptional cases, as for instance, when a father or mother makes a son or daughter just Past 14 or 13, drunk. But in all such cases, the antecedents of the offenders and the circumstances of the offence must be considered individually and not in a kind of omnibus fashion as here.
The observations stated above cannot lend colour to the proposition that Section 562(1) of the Criminal Procedure Code cannot be attracted to cases under the Prohibition Act. All that the learned Judge remarked was that that section could not be applied to all cases and indiscriminately without considering the antecedents of the offenders and the circumstances under which the offense was committed. No other case has been brought to my notice which has taken the view that Section 562(1) Criminal Procedure Code or Section 4(1) of the Madras Probation of Offenders Act is not applicable to the Madras Prohibition Act cases or the offences under any other enactment. AS already stated, the only restriction that is laid down by that section is that the offender should not be liable to be punished with imprisonment exceeding seven years. I must, therefore, repel the contention that Section 4(1) of the Madras Probation of Offenders Act is not applicable to Section 4-A of the Madras Prohibition Act.
5. Coming to the second argument, I must give effect to it as there is substance in it. Before Section 4(1) of the Madras Probation of Offenders Act could be applied, the Magistrate should consider the age, character, antecedents, physical and mental condition of the offender and the circumstances in which the offence was committed. Here, the two reasons given for releasing the accused under Section 4(1) of the Madras Probation of Offenders Act were that he admitted the offence under Section 4-A of the Madras prohibition Act and that he was acquitted under Section 4(1) of the Madras Prohibition Act, I do not think that these two grounds are sufficient to entitle the Magistrate to act under Section 4(1) of the Madras Probation of Offenders Act. Merely because the accused had to admit the commission of one offence and the prosecution did not succeed in bringing home the guilt to the accused, under the other count, the Magistrate should not release the petitioner under that section.
6. In this connection, a passage from the Judgment of Justice Horwill in Titus v. Emperor 1941 Mad W.N. (Or.) 53 : AIR 1941 Mad 720(B) is appropriate:
Section 562 is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the Path of crime, and to help even men of more mature years who for the first time may have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.
With great respect, I adopt this reasoning of the learned Judge and hold that it is only in situations envisaged in the above paragraphs that Section 562(1) Criminal P. C. or the similar provision enacted in Section 4(1) of the Madras Probation of Offenders Act should be invoked. In this case the Magistrate was not justified, without finding out the antecedents or the circumstances in which the offence was committed, in releasing him under that section.
7. The Order of the Magisrate is, therefore, set aside. I think it is appropriate that a term of imprisonment should be awarded. In the circumstances, the accused is sentenced to two weeks rigorous imprisonment.