M.R. Hariharan Nair, J.

The significant question that is to be decided in this revision is the applicability of the benefit of Sec. 4 of the Probation of Offenders Act to a convict under Sec. 51(a) of the Kerala Police Act which attracts a minimum imprisonment of 15 days.

2. The petitioner herein was convicted for the said offence by the Judicial First Class Magistrate's Court, Kuthuparamba, in STC No. 1284/92 and sentenced to undergo simple imprisonment for 15 days and fine of Rs. 100/-. The judgment to the above effect was confirmed by the court of Session, Thalassery, in Crl. A. 340/1993.

3. During arguments, the learned counsel for the petitioner submitted that the evidence adduced is inadequate to sustain a conviction and also that this is a fit case where probation should have been allowed invoking Section 360 of the Cr.P.C.

4. It is true that in support of the prosecution case that the accused was found in front of K.K. Tourist Home, Peravoor Bazaar, at 1.50 p.m. on 11.11.1992, under the influence of liquor, uttering obscene words and in a condition incapable of taking care of himself, spoken to by P.W. 3-A.S.I., corroboration is forthcoming only from the medical evidence given by P.W. 1, who was the Assistant Surgeon of the Government Hospital. PW2 who was the independent witness cited by the prosecution turned hostile and did not support the prosecution case. The two courts of fact which went into the acceptability of the evidence have chosen to accept the evidence of PW3. It cannot be stated that the said view is perverse. On the other hand, clear and cogent evidence of the medical expert is forthcoming indicating probability of the version of PW3. As such I am not inclined to disturb the finding that the accused was found drunk; incapable of taking care of himself and behaving in a disorderly manner in a public place at the time and date mentioned in the charge.

5. What remains to be considered then is only the request for extension of the benefit of probation. Eventhough Sec. 360 of the Cr.P.C. is inapplicable in this State as found in the decision in State of Kerala v. Chellappan George (1983 K.L.T. 811), this claim can be considered under sec. 4 of the probation of Offenders Act, 1958, according to which :-

"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 record 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 behaviour.

6. The question still remains as to whether this is a fit case for extension of the said benefit. The fact that the accused was aged 40 years is certainly not sufficient to take the case out of the applicability of Sec. 4.

7. The learned counsel for the petitioner could not bring to my notice any judicial precedent where the benefit of the probation of Offenders Act was extended to a convict under the Police Act. However, certain principles appear to be well settled in the matter of extension of the benefit though they were considered in connection with certain other offences. In Mathew John v. State of Kerala (1978 KLT 154) it was found that extension of the benefit is not barred in the case of conviction under Sec. 55of the Kerala Abkari Act though the offence attracts a minimum sentence of imprisonment as well.

8. During hearing, the learned counsel for the petitioner brought to my notice the decision in Commandant, 20th Battalion, ITB