State v. Kishori Lal), under Section
Case Details
1 Court No. - 92 Case :- CRIMINAL APPEAL No. - 343 of 1994 Appellant :- Kishori Lal Respondent :- State of U.P. Counsel for Appellant :- Govind Sharan,Narsingh Pandey Counsel for Respondent :- A.G.A. Hon'ble Gajendra Kumar,J. 1. Heard learned counsel for the appellant and learned A.G.A. for the State. 2. This appeal arises out of impugned judgement and order dated 17.2.1994 passed by learned Special Judge, Basti in Special Case No. 34 of 1991 (State Vs. Kishori Lal), under Section 3/7 of Essential Commodities Act, 1955 (hereinafter referred to as 'E.C. Act'), Police Station Parshurampur, District Basti, whereby accused-appellant Kishori Lal has been convicted under Section 3/7 of E.C. Act and sentenced to 3 months rigorous imprisonment along with fine of Rs.500/- and in default of payment of fine, he has to undergo one month rigorous imprisonment. 3. Learned counsel for the appellant has not disputed the
Legal Reasoning
findings rendered by learned trial court regarding conviction of accused-appellant and confined his arguments only regarding the sentence. However, I have gone through the entire evidence carefully. 4. Prosecution version is that the accused-appellant was running a fair price shop at village Kohraya. Parshurampur, 2 Basti. On 15-12-1990, Regional Food Officer along with other Officers conducted raid at shop of the appellant. During inspection, they found that the stock of the Diesel was nil, however 400 litres of mobil oil was kept in two drums whose stock and rate was not mentioned on the stock and price board. Accused was failed to present the stock-sale register, cash memo or everything related to sale of diesel and stock of mobil oil. Afterwards, an FIR was lodged and investigation was started against the appellant. After completion of investigation, police submitted a charge-sheet against the accused-appellant and charged him under Section 3/7 of E.C. Act. 5. In support of his case, prosecution has examined witness
Legal Reasoning
PW-1 Shri Ram Sharan Ram, Regional Food Officer, PW 2 Shri Dilip Kumar Supply Inspector, PW 3 Ramgaj, PW 4 Shanti Bhusan, PW 5 Jokhu Kha- Head Constable, PW 6 Candra Bhusan Upadhya, Sub- Inspector. The accused himself signed his statement attached as Ex.-Ka-1. He himself says that he used to sell mobil oil @ Rs.20 per liter which he stored in drum no.1 and the mobil oil which was stored in drum no.2, used to sell @ Rs.11 per litre. He didn't maintain the records regarding accounts, stock and sale register, slip etc. 6. After hearing and analysing evidence on record, accused- appellant was convicted by the trial court under Section 3/7 of E.C. Act and was sentenced. Being aggrieved of the same, accused-appellant has preferred the present appeal. 7. Scrutiny of evidence shows that PW-1- Shri Ram Sharan Ram has made clear and categorical statements to the effect that on 15-12-1990 accused was also failed to present the 3 stock-sale register, cash memo of sale of diesel and stock of mobil oil. Statement of PW-1 is clear and cogent and no such fact could emerge in his cross-examination so as to create any doubt about the credibility of his version. 8. 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 to be taken place on 15-12- 1990 and since then a period of 32 years have elapsed. It is further argued that the accused-appellant has no previous criminal antecedents. It was argued 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. 9. Learned A.G.A. has opposed the appeal and argued that keeping in view that a period of 32 years have elapsed since the incident took place, suitable sentence may be awarded. 10. I have heard rival submission of the parties and perused the material on record. 11. Before proceeding further, a cursory glance of Section 3/7 of E.C. Act is necessary for better appreciation of the case. “ 7 Penalties. — 1 (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, and 4 (ii) in the case of any other order, 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: [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 and special reason for awarding a sentence of imprisonment for a 5 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 mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. 6 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 32 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 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 3 months imprisonment awarded by the trial court is reduced to imprisonment till the rising of the court and along with fine of Rs.2,000/-. 7 15. Accordingly, conviction of accused-appellant, Kishori Lal is upheld, but sentence of three months imprisonment, awarded by the trial court, is modified accordingly and accused- appellant is sentenced to imprisonment till the rising of court along with fine of Rs.2,000/- (two thousands only). Accused- appellant is directed to deposit a fine of Rs.2,000/- within forty five days from today. In default of payment of fine, accused- appellant shall undergo three months imprisonment. 16. The instant appeal is partly allowed in above terms. 17. A copy of this order be transmitted to the court concerned. Order Date :- 20.9.2022 SK Goswami Digitally signed by SHIVAKANT GOSWAMI Date: 2022.10.17 18:03:49 IST Reason: Location: High Court of Judicature at Allahabad