High Court · 2022

Judgment

1. Heard learned counsel for the appellant and learned A.G.A. for the State.

2. Vide order dated 03.08.2021, the appeal has been abated against the appellant no.1-Mansoor Ali.

3. This appeal arises out of impugned judgment and order dated 14.09.1993 passed by learned Special Judge, Bijnor in Special Case No.11 of 1991, under Section 3/7 of Essential Commodities Act, 1955 (hereinafter referred to as 'E.C. Act'), Police Station- Nagina, District- Bijnor, whereby accused-appellant Maqsood Ali has been convicted under Section 3/7 of E.C. Act and sentenced to imprisonment till the rising of the court along with fine of Rs.600/- and in default of payment of fine, he has to undergo three months rigorous imprisonment. As per order

4. Prosecution version is that the accused-appellant was running a shop at Nagina, Bijnor.

5. On 10.07.1990 PW-1 S.P. Saxena, Supply Inspector, Bijnor along with PW-3 Ram Lakhan Singh, SDM, Bijnor 2 conducted a raid at the shop of accused-appellant, where deficit of 71 Kg. in mustard refined oil was found, due to

which, an FIR was lodged and investigation was started against the appellant. After completion of investigation, police submitted a charge-sheet against the accused- appellant under Section 3/7 of E.C. Act.

6. In support of his case, prosecution has examined two witnesses viz. PW-1 S.P Saxena, Supply Inspector, and PW-3 Ram Lakhan Singh SDM, Nagina. After evidence, accused- appellant was examined under Section 313 Cr.P.C., wherein he has denied the evidence and claimed that he was falsely implicated. However, no evidence was led in defence.

7. After hearing and analyzing evidence on record, accused-appellant was convicted by the trial court under Section 3/7 of E.C. Act and was sentenced as stated in paragraph no.2 of this judgment. Being aggrieved of the same, accused-appellant has preferred the present appeal.

8. Scrutiny of evidence shows that PW-1 S.P.Saxena has made clear and categorical statements to effect that on

10.07.1990, there was deficit of 71 Kg. in mustard refined oil. Statement of PW-1 is clear and cogent. No such fact could emerge in his cross-examination so as to create any doubt about the credibility of his version. Version of PW-1 is corroborated by PW 3 Ram Lakhan Singh. No material contradiction or infirmity could be pointed out in statements of witnesses. Evidence clearly discloses that essential commodities was found in deficit possession in contravention of the order, issued under E.C. Act. Learned 3 trial court has discussed entire evidence and found that the act of accused-appellant contravenes provisions of Section 3 of E.C. Act and thus, accused-appellant was convicted under Section 7 of E.C. Act. After considering the entire evidence on record, it is apparent that the conviction of accused- appellant is based on evidence.

9. As far as the question of sentence is concerned, it was argued by learned counsel for accused-appellant that the alleged incident has been shown on 10.07.1990 and since then a period of 29 years have elapsed. Accused-appellant has no criminal antecedents. It was submitted that in view of above stated facts and circumstances, it would not be appropriate to send the accused-appellant in judicial custody, at this stage.

10. Learned A.G.A. has opposed the appeal and argued that keeping in view that a period of 29 years have elapsed since the incident, suitable sentence may be awarded.

11. Before proceeding further with the case, a cursory glance of Section 7 of E.C. Act is necessary for better appreciation of the case. “7. Penalties.—[(1) If any person contravenes any order made under section 3,— (a) he shall be punishable,— (i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, (ii) in the case of any other order, with imprisonment for a term which shall not be less 4 than three months but which may extend to seven years and shall also be liable to fine: [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;] (b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.] [(2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: 37[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.] (2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine: 38 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months.] [(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be an adequate 5 and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be.]] [(3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the order.]”

12. It is a well settled principle that sentences must be just and simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the court but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social 6 mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner.

13. It has been observed by the Hon'ble Apex Court that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. A court, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, 5 sentences can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances. (vide Raj Bala vs. State of Haryana & Ors passed in Special Leave Petition (Crl.) Nos. 4099-4100 of 2015).

14. In the instant case, the alleged incident took place about 29 years ago and the appellant is not a previous convict and that accused-appellant alone cannot be held responsible for the long delay in disposal of this appeal. Considering all aspects of the matter, no useful purpose 7 would be served by sending accused-appellant in judicial custody at this stage, rather it appears that ends of justice would be met if sentence of imprisonment of till the rising of the Court awarded by the trial court is set aside and sentence of fine of Rs.6,00/- is upheld.

15. Accordingly, conviction of accused-appellant- Maqsood Ali is upheld, but sentence of imprisonment of till the rising of the Court awarded by the trial court is set aside and accused-appellant is sentenced to fine of Rs.6,00/- (Six Hundred only). Accused-appellant is directed to deposit a fine of Rs. 6,00/- within forty five days from today. In default of payment of fine, accused-appellant shall undergo three months imprisonment.

14. The instant appeal is partly allowed in above terms.

15. A copy of this order be transmitted to the court concerned. Order Date :- 19.09.2022 SK Goswami GOSWAMI Reason: Location: High Court of Judicature at Allahabad