The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.300 of 1994 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973.). Tarun Kumar Parida …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. S. Panda, Advocate For Respondent : Mr. S.S. Pradhan, AGA CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :21.02.2023 DATE OF JUDGMENT:27.02.2023 G. Satapathy, J. 1. An appeal having come to be filed U/S.374(2) of Cr.P.C. by the appellant assailing his conviction for offence U/S.7 of Essential Commodities Act, 1955 (in short the E.C. Act) and sentence to undergo Rigorous CRA No.300 of 1994 Page 1 of 11 Imprisonment for a period of three months and to a pay a fine of Rs.2,000/- in default whereof, to undergo further R.I. for 40 days as passed/recorded on 17.08.1994 by the learned Judge, Special Court, Phulbani in 2(c).C.C. Case No.1 of 1991. 2.
Legal Reasoning
In the course of hearing of the appeal, Mr. S. Panda, learned counsel for the appellant although seriously challenges the conviction of the appellant, but when this Court took him through the impugned judgment by analyzing the same and convinced him that the impugned judgment does not suffer from infirmity, he promptly submits that the appellant does not intend to challenge his conviction, but he craves for sympathetic consideration for his sentence and accordingly, learned counsel urges to modify the sentence of the convict- appellant by releasing him under the beneficial provision of Probation of Offenders Act, 1958 (in short, “P.O. Act”) CRA No.300 of 1994 Page 2 of 11 instead of sentencing him at once. Learned counsel for the State does not oppose such prayer of the appellant. 3. In view of the specific submission made by the learned counsel for the appellant, this Court clarifies it not to recapitulate the facts of the case in extenso, but limits itself to state the necessary facts for disposal of this appeal as, on 25.12.1990, the complainant-Marketing Inspector, Phulbani being assisted by other Government officials conducted raid in the house of convict-Tarun Kumar Parida and found him to have stocked 62 bags of rice weighing 42 Quintal 51 Kgs. & 300grams in his house without any authority and, accordingly, on completion of enquiry, the complainant filed a complaint against the appellant in the learned trial Court for violation of Clause- 3(2) of Orissa Rice(Movement) Control Order, 1964 amended in the year 1990, Clause-3(2) & 2(1) of the Orissa & Paddy Control Order, 1965 which are punishable U/S.7 of the E.C. Act and Section 9 of E.C. Act. After CRA No.300 of 1994 Page 3 of 11 appreciating the evidence upon conclusion of trial and hearing the parties, the learned Judge, Special Court, Phulbani while finding the appellant not guilty of offence U/S.9 of E.C. Act, found him guilty of offence punishable U/S.7 of E.C. Act for violation of the above Control Orders for unauthorizedly procuring and storing the above quantity of rice and, accordingly, the appellant was convicted and sentenced to the punishment indicated above. 4. In the above backdrop of case, since the appellant does not challenge his conviction, but prays for modification of sentence, this Court now proceeds to examine the position of law in this regard. Law is fairly well settled in respect of sentencing a convict for an offence not punishable with imprisonment for life or death by way of extending the beneficial provision of P.O. Act. In this regard, this Court considers it profitable to refer to the following decisions. CRA No.300 of 1994 Page 4 of 11 5. In Harivallabha and another Vrs. State of M.P.; (2005) 10 SCC 330, upon noticing the conviction of the appellant for Sec.7 of the E.C. Act and High Court reducing the sentence of imprisonment to three months, the Apex Court in Paragraph 3 has held that:- “A Court can refuse to release a person on probation of good conduct U/S.360 of the Cr.P.C., but in the facts and circumstances of the case, the appellants should have been dealt with under the provisions of Sec.360 of the Cr.P.C.” 5.1 In Som Dutt and others Vrs. State of Himachal Pradesh; (2022) 6 SCC 722, the Apex Court in Paragraph-6 has held as under:- “Having regard to sentence imposed by the Courts below on the appellants for the offence U/S.379 r/w Section-34 of IPC, and having regard to the fact that there are no criminal antecedents against the appellants, the Court is inclined to give them the benefit of releasing them on probation of good conduct.” 5.2 In Lakhvir Singh Vrs. State of Punjab; (2021) 2 SCC 763, while extending the benefit of Sec. CRA No.300 of 1994 Page 5 of 11 4 of P.O. Act to the convict, the Apex Court has held the following in Para-6:- “We may notice that the Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. the Thus, reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved.” increasing emphasis on 5.3 In Vipul Vrs. State of Uttar Pradesh; (2022) SCC Online SC 1686, the Apex Court at Paragraph-30 has held as under:- “Section 360 pertains to an order after conviction, to be passed by the Court after admonition, facilitating a release and also probation of good conduct. It is to be exercised on two categories of persons. The first category consists of persons attaining 21 years and above with the proposed punishment for a term of 7 years or less. While the other for a larger term except punishable with death or imprisonment for life. This is made applicable to a convict aged under 21 years or any woman. The Court has to weigh the age, character and the antecedent of the offence circumstances the leading convict with to CRA No.300 of 1994 Page 6 of 11 committed. If satisfied, it can release the convict entering into a bond while a direction to keep the peace and maintain good behavior can be ordered during the said period. As discussed, this provision can be pressed into service while dealing with chapter-XXIA other than convicting a person after trial. Like the other two provisions involving plea bargaining and compounding, Sec. 360 of the Code is also a forgotten one.” 5.4. In T. Sushila Patra Vrs. State; (1987) SCC Online Ori 144, while extending the benefit of Sec. 360 of the Cr.P.C. to the convict-petitioner after confirming her conviction in a case where she was sentenced to undergo RI for six months with payment of fine of Rs.1,000/- (Rupees One Thousand) in default whereof to undergo further RI for one month for offence U/S.7(1)(a) of the E.C. Act, this Court has held in Paragraph-8 as under:- “There is no doubt that the provisions of the Essential Commodities Act certain circumstances prescribed imposition of a minimum sentence and it is undoubtedly a special statute, but neither of those two conditions totally bars the discretion of the Court to grant probation to the convict either in CRA No.300 of 1994 Page 7 of 11 under the criminal procedure code or even under the relevant Sections of the Probation of Offenders Act.” 6. In scrutinizing the facts of the case in the backgrounds of the scope and object of P.O. Act and authoritative pronouncements made in the cases referred to above, it appears that the learned trial Court had not delved the fact and situation in the case for not extending the beneficial provision of P.O. Act to the appellant in the impugned judgment, nor the learned trial Court had assigned any reason for withholding the benefit of P.O. Act to the appellant, but the fact remains that the appellant was convicted in this case for commission of offence U/S.7 of E.C. Act without specifying the particular clause of the penalties prescribed in the aforesaid Sections of the E.C. Act. However, taking into consideration the guilt of the convict for offence U/S.7 of E.C. Act for found stocked 62 bags of rice unauthorizedly in his house in contravention of Clause-3(2) of Orissa CRA No.300 of 1994 Page 8 of 11 Rice(Movement) Control Order, 1964 amended in the year 1990, Clause-3(2) & 2(1) of the Orissa & Paddy Control Order, 1965 which is punishable U/Ss.7(1)(a)(ii) of E.C. Act which prescribes with minimum punishment of three months, but which may extend to seven years and fine and, therefore, the benefit of Sec.3 of P.O. Act cannot be extended to the convict-appellant. However, the convict is first time offender and no previous conviction of the appellant has been proved against him and approximately 29 years have elapsed in the meantime after conviction of the appellant and the convict was aged about 31 years on the date of his conviction and now he would be 60 years. This Court, therefore, considers it unnecessary to send the convict- appellant to jail custody to suffer his sentence at this point of time. Besides, the sentence of the appellant to pay fine of Rs.2,000/- appears to be harsh when he is already found to have suffered the rigmarole of the trial CRA No.300 of 1994 Page 9 of 11 and appeal for more than 30 years, which was like the sword of Damocles dangling over his head all through these years. The State, however, has not come up with any convincing materials to show that the convict is incorrigible and cannot be reformed and as has already been discussed that the object of punishment is also reformative. 7. Hence, in the above circumstances, this Court considers it proper to give the benefit of Sec.4 of P.O. Act to the convict-appellant inasmuch as the offence with which the appellant is convicted does not prescribes punishment for life or death, and having regard to the circumstances of the cases including the nature of offence and the character of the appellant, it is considered expedient to release the appellant on probation of good conduct. 8. In the result, the appeal is dismissed on contest, but in the circumstance, there is no order as to CRA No.300 of 1994 Page 10 of 11 cost. As a logical sequitur, the conviction of the appellant is maintained, but instead of sentencing him to suffer any punishment, it is directed that the appellant be released U/S.4 of the P.O. Act for a period of one year upon his entering into a bond of Rs.10,000/-(Rupees Ten Thousand) with one surety to appear and receive sentence, when called upon during such period and in the meantime, to keep the peace and be of good behavior. The appellant shall remain under the supervision of the concerned Probation Officer during the aforesaid period. The sentence is, accordingly, modified. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 27th day of February, 2023/Subhasmita CRA No.300 of 1994 Page 11 of 11