The judgment established the principle that the State is bound to file an appeal against orders under the Probation of Offenders Act, 1958, and emphasized the duty of the trial court to consider the nature and gravity of the offence when applying the provisions of the Probation of Offenders Act.

MOIDU, J.

The respondent in each of the petitions has been convicted under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954) - hereinafter referred to as 'the Act' - and the respondent in the first of the two petitions was released on admonition under Section 3, and the respondent in the other petition was released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 (Central Act 20 of 1958), without awarding any sentence. The State has filed these two revision petitions questioning the impropriety and illegality of the order.

2. The Food-Inspector in the first case purchased gingili oil from the respondent and it was found to be adulterated on analysis by the Public Analyst. The purchase of gingili oil, the procedure adopted by the Food-Inspector in sampling and the final result of the analysis by the Public Analyst were not disputed. On analysis it was found that the standard of the sample of gingili oil was not in conformity with the standard prescribed under the Prevention of Food Adulteration Rules 1955. Under Rule A. 17-11 of the Rules, the Butyro-refractometer reading at 40 degree C shall be 58.0 to 61.0 while the sample in question was found to be 54.2. Under the same Rule, saponification value shall be 188 to 193. But the sample showed 203.5. The Iodine value should have been 105 to 115 under the Rule, but the sample showed 87.4. Apart from these variations there was also the additional circumstance that the the admixture contained 19 per cent of coconut in holding that the respondent is guilty of the offence under Section 7(1) read with Section 16(1)(a)(i) of the Act.

3. In the other case the article of food was tea infusion, which, on analysis, was found to contain coal-tar dye which was identified as Orange II (Colour Index 151). Under Rule 29(g) of the Rules, addition of coal-tar dye to the tea beverage is prohibited. In this case also it was not disputed that the Food-Inspector purchased the article of food in question, that he followed the correct procedure in sampling and that the Public Analyst gave his opinion in accordance with the provisions of the Act and the Rules made thereunder. It can therefore be held that the respondent in this case has correctly been convicted under Section 7(1) read with Section 16(1)(a)(i) of the Act.

4. The main question argued by the learned counsel of the respondent in each of these cases was that the revision against the order passed either under Section 3 or under Section 4 of the Probation of Offenders Act, is not maintainable as the remedy of the State, if any, under that Act is to file an appeal against the order and so long as the right to file an appeal subsists, the State cannot circumvent the procedure by invoking the powers of the High Court under Section 439 Cr.P.C. So the question is whether the remedy of the State, in the circumstances of these cases, is to file an appeal against the orders or not.

5. There is no difficulty in finding an answer to this question as Section 11(2) of the Probation of Offenders Act itself provides for a right of appeal. It reads :

"Notwithstanding anything contained in the Code, where an order under Sec. 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentence of the former court."

This provision does not run counter to the provisions of the Code of Criminal Procedure, as Section 404, Criminal Procedure Code provides :

"No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force."

Where there is a provision to file an appeal under a special statute as required in Section 404, Criminal Procedure Code, and if no appeal is filed under that statute, it is open to a party to that proceeding to question the order, judgment or conviction