The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.148 of 1994 (In the matter of application under Section 374 of the Criminal Procedure Code, 1973.). Jagannath Mandal …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. D. Sethy, Advocate For Respondent : Mr. M.S. Rizvi, ASC (Vig.) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:03.05.2023 G. Satapathy, J. 1. This is an appeal U/S.374 of the Code of Criminal Procedure, 1973 (in short the Code) by the appellant calling in question the judgment of conviction and order of sentence passed on 08.04.1994 by learned Special Judge, Balasore in Special Case No.23 of 1992 CRA No.148 of 1994 Page 1 of 14 convicting him for offence under section 7 of Essential Commodities Act, 1955 (in short the E.C. Act) and sentencing him to the punishment of Rigorous Imprisonment(RI) for a period of six months and to pay a fine of Rs.1,000/- (Rupees One Thousand) in default whereof, to undergo R.I. for a further period of one month. 2. The prosecution case in brief is, on a tip off, the Officers of Vigilance Department, Cuttack inspected the
Legal Reasoning
premises of M/s. Sri Jagannath Fertiliser and Cycle Shop located at Remuna belonging to the appellant on 09.11.1989 in between 5.30 P.M. to 6.30 P.M., but on demand, the appellant failed to produce any certificate of registration/dealer’s license authorizing him to carry on business of fertilizers. Finding the certificate or license to have not displayed in a prominent and conspicuous place of his shop and also finding the appellant to have not maintained the stock books or records relating to business in fertilizers, it was considered to be violation of CRA No.148 of 1994 Page 2 of 14 provisions of Fertilizer (Control) Order, which is punishable U/S.7 of EC Act and, accordingly, different/various brands of fertilizers were seized and left in the zima of the appellant. On the incident, P.W.6, Mr. S.R. Singh, lodged a FIR before the Superintendent of Vigilance, Balasore Division, Cuttack, which was accordingly registered as Balasore Vigilance P.S. Case No.35 of 1989 and P.W.6 on being permitted, continued with the investigation and he, on completion of investigation, submitted charge-sheet against the appellant resulting in trial in the present case. The appellant, accordingly, faced the trial for offence U/S.7 of EC Act for contravention of Rules 3(3),4(a) and 4(b) and Rule 35(2) of the Fertilizer (Control) Order, 1985. In the course of trial, the prosecution examined six witnesses and relied upon documents under Ext.1 to 7/2 as against oral evidence of two witnesses and one document under Ext.A by the defence. On completion of trial, after appreciating CRA No.148 of 1994 Page 3 of 14 evidence on record upon hearing of the parties, the learned Special Judge, Balasore by the impugned order, convicted the appellant for offence U/S.7 of EC Act and sentenced him to the punishment indicated supra. Hence, this appeal. 3. In the course of hearing of appeal, Mr. D. Sethy, learned counsel for the appellant submits that since the conviction has been recorded around 30 years back, he does not wish to challenge the conviction, but he, however, prays for clemency in sentence. Learned counsel for the appellant accordingly, prays to extend the benefit of P.O. Act to the appellant. On the other hand, Mr. M.S. Rizvi, learned ASC however, does not oppose the prayer as advanced on behalf of the appellant for leniency in the sentence. 4. Although the appellant has not seriously challenged his conviction for offence U/S.7 of EC Act, but this Court considers it imperative to examine the legality of the impugned judgment. Since P.W.6 being CRA No.148 of 1994 Page 4 of 14 accompanied by P.W.5, had conducted raid in the premises of the shop of the appellant at the relevant time of commission of offence, this Court considers it imperative to examine the evidence of P.W.5 and P.W.6 prior to scrutinizing the evidence of other witnesses. P.W. 5 in his evidence, has stated that on 09.11.1989 at about 5.30 P.M., they arrived and found the shop of the appellant M/s. Sri Jagannath Fertiliser and Cycle Shop open and accused was present there and they then asked the accused to produce the license for selling fertilizers and book of accounts, but he could not produce the same before them. It is his further evidence that they inspected the shop and found the accused selling fertilizers and they seized two packets of MOPT fertilizers having 10Kgs each along with two packets of DAPE fertilizers having 10Kgs each, four packets of Amonia Sulphate having 50Kgs each, one bag of Gromor fertilizer having weight of 40Kgs and loose urea fertilizers of 35Kgs vide seizure list under Ext.1. P.W.5 was thoroughly cross examined, but CRA No.148 of 1994 Page 5 of 14 nothing was elicited from his mouth to discredit his evidence. 5. On the other hand, the evidence of P.W.5 is fortified by the evidence of P.W.6, whose evidence transpires that the appellant was found selling fertilizers without maintaining any books of account. A careful reappraisal of the evidence of prosecution witnesses would go to reveal that the appellant was found selling fertilizers without any proper license and records. On the other hand, the defence had examined two witnesses, but that is of no avail to the appellant to discredit the evidence adduced by the prosecution. P.W. 1 albeit had not supported the prosecution case, but that appears to be insignificant when the evidence of P.Ws. 2 to 4 transpire about seizure of fertilizers from the shop of the appellant. In such circumstance, especially when there appears strong and reliable evidence against the appellant and the learned trial Court having not CRA No.148 of 1994 Page 6 of 14 committed any illegality in appreciating evidence, the conviction of the appellant cannot be faulted with. 6. Besides, the sentence of the appellant to the punishment can be checked out in the light of submission made by the appellant and whether any leniency in the punishment can be extended to the appellant. In the above backdrop, especially when the appellant does not seriously challenge his conviction and prays for modification of sentence, this Court now proceeds to examine the position of law in this regard. Law is fairly well settled that before sentencing a convict for an offence not punishable with imprisonment for life or death, it needs to be examined whether the beneficial provision of Probation of Offenders Act, 1958 (in short P.O. Act) can be extended to the convict instead of sentencing him to imprisonment at once. In this regard, this Court considers it profitable to refer to the following decisions. CRA No.148 of 1994 Page 7 of 14 7. 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.” 7.1. 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.” 7.2. In Lakhvir Singh Vrs. State of Punjab; (2021) 2 SCC 763, while extending the benefit of Sec. CRA No.148 of 1994 Page 8 of 14 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 7.3. 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 antecedent of the the offence circumstances committed. If satisfied, it can release the the leading convict with to CRA No.148 of 1994 Page 9 of 14 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.” 7.4. 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:- in “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 under the criminal procedure code or even CRA No.148 of 1994 Page 10 of 14 under the relevant Sections of the Probation of Offenders Act.” 8. In scrutinizing the facts and evidence 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 possessing and selling different fertilizers unauthorizedly in his shop in contravention of Rules 4(a) and 4(b) of the Fertiliser (Control) Order, 1985 which is CRA No.148 of 1994 Page 11 of 14 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 38 years on the date of his conviction and now he would be 67 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.1,000/- appears to be harsh when he had already found to have suffered the rigmarole of the trial and appeal for more than 30 years, which was like the “Damocles sword” 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 CRA No.148 of 1994 Page 12 of 14 incorrigible and cannot be reformed and as has already been discussed that the object of punishment is also reformative, the appellant deserves to be released under Sec. 4 of the P.O. Act. 9. 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 him on probation of good conduct. 10. In the result, the appeal is dismissed on contest, but in the circumstance, there is no order as to cost. As a logical sequitur, the conviction of the appellant is maintained, but instead of sentencing him to suffer any punishment of imprisonment, 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/- CRA No.148 of 1994 Page 13 of 14 (Rupees Ten Thousand) with one surety to appear and receive the sentence, when called upon during such period and in the meantime, to keep 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 SUBHASMITA DAS Digitally signed by SUBHASMITA DAS Date: 2023.05.04 13:30:38 +05'30' Orissa High Court, Cuttack, Dated the 3rd day of May, 2023/Subhasmita CRA No.148 of 1994 Page 14 of 14