CRA/1003/2004 of SHANTILAL Vs THE STATE OF M.P. on 29 December 2023

JUDGMENT

This Criminal appeal has been filed under section 374 (2) of the Cr.P.C.being aggrieved by judgement dated 29.09.2004 passed by the Special Judge,Ujjain in Special Case No.11/1994 whereby the appellant/accused has beenconvicted under section 3 read with section 7 (1)(a)(iii) of the EssentialCommodities Act, 1995 for violation clause 3(1) of Madhya Pradesh ScheduledCommodities Dealers (Licensing and Restriction on Hoarding) Order, 1991sentenced to undergo R.I. for a period of 6 months, in addition to a fine ofRs.5,000/- and in default of payment of fine, appellant/accused shall further undergo R.I. for a term of one and a half month.

2. Brief fact of the case is that during inspection dated 28.12.1992 by Assistant Food Officer, Jaora the truck no.MOU-1449 was carrying 119 quintal30 kg. maize in 120 bags without license from the godown of appellant/accusedShantilal who was transporting the produced to Sagwara, District Dungarpur,Rajasthan. On completing the proceedings the appellant/accused put to trialbefore the Special Judge, Ujjain.

3. The Special Judge, Ujjain convicted the appellant/accused on relyingthe testimony of S.I. Daulat Singh Ranawat (P.W.-5), driver of the vehicleChotte Khan (P.W.2-), Constable Suresh Singh Soni (P.W.-4), Assistant FoodOfficer P.N. Sharma (P.W.-6), Head Constable Ganpat Singh (P.W.-7), A.S.I.,Prempal Singh Choudhary (P.W.-8) and documents (Exhibit P/2 to P/16).

4. Challenging the conviction and sentence this appeal has been preferredon the ground that learned trial court has committed error in believing theprosecution witnesses and discarding the defence witnesses.

5. The learned Panel Advocate for the respondent/State has supported the conviction and sentence.

6. Heard counsel for the parties and perused the record.

7. On appreciation of testimony of S.I. Daulat Singh Ranawat (P.W.-5), driver of the vehicle Chotte Khan (P.W.2-), Constable Suresh Singh Soni(P.W.-4), Assistant Food Officer P.N. Sharma (P.W.-6), Head ConstableGanpat Singh (P.W.-7), A.S.I., Prempal Singh Choudhary (P.W.-8) anddocuments (Exhibit P/2 to P/16), the conviction and sentence under section 3read with section 7 (1)(a)(ii) of the Essential Commodities Act, 1995 forviolation clause 3(1) of Madhya Pradesh Scheduled Commodities Dealers(Licensing and Restriction on Hoarding) Order, 1991 is affirmed.

8. Considering the fact that incident is of 1992 and the trial court hasconsidered the fact that the appellant is first offender but mentioning minimumsentence for offence under section 3 read with section 7 of the EssentialCommodities Act, 1955 has awarded sentence of imprisonment.

9. Section 7 (1) of the Essential Commodities Act, 1955 is reproduced below:- 7 Penalties. — (1) If any person contravenes any order made undersection 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 termwhich may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term whichshall not be less than three months but which may extend to sevenyears and shall also be liable to fine:- Provided that the court may, for any adequate and special reasons to bementioned in the judgment, impose a sentence of imprisonment for aterm of less than three months;

(b) any property in respect of which the order has been contravenedshall be forfeited to the Government;

(c) any package, covering or receptacle in which the property is foundand any animal, vehicle, vessel or other conveyance used in carryingt he commodity shall, if the court so orders, be forfeited to theGovernment."

10. The matter comes within section 7(1)(ii) of the Essential Commodities Act, 1955. Apex Court in case of Taraknath Kesari Vs. State of West Bengal reported in 2023 Latest Caselaw 462 SC has considered the legal positionregarding invocation of Probation of Offenders Act, 1958 in matters where minimum sentence is prescribed in paragraph 10 which is reproduced below:- "10. Even if there is minimum sentence provided in Section 7 of theEC Act, in our opinion, the appellant is entitled to the benefit ofprobation, the EC Act, being of the year 1955 and the Probation ofOffenders Act, 1958 being later. Even if minimum sentence isprovided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of OffendersAct, 1958. Reference can be made to a judgment of this Court inLakhvir Singh etc vs. The State of Punjab & Another reported in2021 SCC OnLine SC 25."

11. In this case, there is no criminal antecedent of the appellant/accused.

He is facing the trial from 1992. Looking to the nature of the incident, havingregard to the facts and circumstances of the case and the character ofappellant/accused as first offender, it is expedient to release him on probationof good conduct under section 4 of the Probation of Offenders Act, 1958.

12. The appeal is partly allowed and the finding of the trial courtregarding the sentence is modified and instead of sentencing theappellant/accused at once it is directed that appellant/accused be released onbail entering into bond with surety of Rs.50,000/-(Rupees Fifty Thousand Only) to the satisfaction of the trial court within a period of 30 days to appearand receive sentence when called upon by the trial Court during a period of 3years and in the meantime to keep the peace and be of good behavior.

13. Under Section 5 of Probation Of Offenders Act, 1958 theappellant/accused shall also pay Rs.25,000/-(Rupees Twenty Five ThousandOnly) to the State as compensation for the loss suffered for the commission ofoffence. The appellant/accused shall deposit the compensation amount within30 days failing which the said amount shall be recovered fromappellant/accused in accordance with law. The amount of fine deposited by theappellant/accused before the trial court shall be adjusted towards in amount ofcompensation.

14. With the aforesaid, the criminal appeal is disposed off.

ajit

(GAJENDRA SINGH)JUDGE