Mohsin Ali Khan vs State Of U.P.
2017 Latest Caselaw 7592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 11									       A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 220 of 1991
 

 
Appellant :- Mohsin Ali Khan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.K. Verma,Mithilesh Kumar Gupta
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shailendra Kumar Agrawal,J.

1. This Criminal Appeal has been preferred by the appellant Mohsin Ali Khan against the judgment and order dated 07.02.1991 passed by the learned Special Judge, Ghazipur in Criminal Case No.9 of 1990 (State Vs. Mohsin Ali Khan), arising out of case crime no.122 of 1989, under Section 3/7 of the Essential Commodities Act, P.S. Kasamabad, District Ghazipur, whereby the appellant was convicted and sentenced under Section 3/7 of the Essential Commodities Act for six months' rigorous imprisonment.

2. Filtering out the unnecessary details, the prosecution story in brief is that a complaint was jointly made to the District Magistrate, Ghazipur by Sri Abdul Sattar Nomani, President, Nagar Congress Committee, Bahadurganj and Sri Imtiyaz Ahmad, Mohd. Murtaza, Mohd. Zakariya, A. Salam, Shivnath, Gayasuddin, Members of Town Area Bahadurganj against the appellant Mohasin Ali Khan, Dealer of Fair Price Shop Bahadurganj regarding the irregularities committed by him in distribution of sugar and on the basis of said complaint, an enquiry was conducted by the Supply Inspector regarding distribution of sugar. Finding certain irregularities in the distribution of sugar by making forged entries in the distribution register and black-marketing of the same, a report Ex. Ka-1 was made to the In-charge, Police Chowki, Bahadurganj, District Ghazipur. As the appellant/ Dealer of Fair Price Shop by showing forged sale of sugar, committed black-marketing, hence he has violated the provisions of U.P. Food Grains and other Essential Articles Distribution Order, 1977, which is an offence under Section 3/7 of the Essential Commodities Act, 1955 and it was requested to lodge an FIR against the appellant Mohasin Ali Khan.

3. On the basis of the written report Ex. Ka-1, a case in crime no.122 of 1989 was registered under Section 3/7 of the Essential Commodities Act against the appellant and the investigation was handed over to Sub-Inspector Gyan Prakash Tripathi. The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C., prepared the site plan Ex. Ka-41 of the place of occurrence, obtained sanction Ex. Ka-42 from the District Magistrate, Ghazipur and after completing other necessary formalities, submitted charge sheet Ex. Ka-43 against the appellant.

4. Thereafter, the learned trial judge recorded the statement of the appellant regarding the offence under Section 3/7 of the Essential Commodities Act, in which he has accepted that on 26.03.1989 and 08.04.1989 he was the licensee of Fair Price Shop, Bahadurganj, District Ghazipur and denied the factum of enquiry done by the Supply Inspector. He has also denied the factum of prosecution that any enquiry was made by the Supply Inspector on 26.03.1989 or 08.04.1989, in which it was found that the names of 18 card holders were twice entered in the same month regarding distribution of sugar and in the cards of some card holders, entries regarding distribution of sugar have not been made. He has also stated that this case has been initiated against him due to enmity by his enemies in collusion with the Supply Inspector.

5. To prove its case, the prosecution has examined as many as three witnesses namely PW-1 Yaar Mohammad; PW-2 Ram Daras Singh, Supply Inspector; and PW-3 S.I. Gyan Prakash Tripathi, Investigating Officer and also got proved the documents by respective witnesses as written report Ex. Ka-1, chik FIR Ex. Ka-22, copy of G.D. Ex. Ka-23, site plan Ex. Ka-41, sanction of District Magistrate, Ghazipur Ex. Ka-42, charge sheet Ex. Ka-43 and the pages of distribution register as Ex. Ka-26, Ka-27, Ka-20 & Ka-21 and the ration cards as Ex. Ka-2 to Ka-19.

6. The accused-appellant in his statements u/s 313 Cr.P.C. has denied all material facts of the prosecution and stated that this case has been initiated against him due to enmity.

7. After scrutinizing and appreciating the evidence available on record, the learned trial court recorded a finding of conviction of accused-appellant Mohsin Ali Khan for the offence under Section 3/7 of the Essential Commodities Act.

8. Heard Sri S.K. Verma, learned counsel for the appellant and Ms. Anjum Haq, learned A.G.A. for the State.

9. Learned counsel for the appellant did not make any argument regarding merit of the case and did not challenge the findings recorded by the learned trial court. Learned counsel for the appellant at the very outset conceded that so far as conviction part of the appellant is concerned, the opinion by the learned trial court does not suffer from any error.

10. Learned counsel for the appellant did not harp much so far as the conviction of the appellant under Section 3/7 of the Essential Commodities Act is concerned, hence the detailed examination of evidences is hereby eschewed. The main thrust of the arguments of the learned counsel for the appellant is that the sentence be reduced to the period of undergone imprisonment and to fine only as the matter is very old one.

11. It has also been stated that the incident took place on 26.03.1989 and 08.04.1989 and the judgment by the trial court was pronounced on 07.02.1991 and today this is December, 2017 and at the time of recording the statement u/s 313 Cr.P.C., the appellant was at the age of 24 years and presently he is aged about 50 years and moreover the appellant has spent in jail 86 days i.e. about half sentence awarded by the learned trial court.

12. Learned A.G.A. also had no serious arguments on the said score as she has also conceded to the fact that the appeal is very old one and the sentence is only for six months and more than 26 years have elapsed, but the appeal could not be decided.

13. Not pressing the criminal appeal after the conviction of the accused by the Court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

14. In case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:-

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

15. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:-

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

16. I have given a thoughtful consideration on the overall facts and circumstances. There is nothing on record that the appellant has any criminal history. Prosecution has failed to bring on record any material which disqualifies the appellant from his sentence being modified.

17. In these circumstances, I agree with the arguments of the learned counsel for the appellant that only by sending the appellant to jail will not serve the purpose and on an overall consideration of above and other attending facts and circumstance, I am of the view that the period of imprisonment awarded by the learned trial court for six months under Section 3/7 of the Essential Commodities Act, may be reduced to the period of imprisonment already undergone and also with a fine of Rs.20,000/-.

18. In view of the above, the appeal filed by the appellant is allowed in part, whereas the conviction of the appellant by impugned judgment and order is hereby maintained. His sentence is reduced to the period of imprisonment already undergone by him with fine of Rs.20,000/-. The appellant Mohsin Ali Khan is permitted to deposit fine within a period of one month from today, failing which he has to undergo three months' simple imprisonment. Concerned court will take all possible steps for realization of fine.

19. Let a certified copy of this judgment be sent to the concerned court immediately for intimation and immediate compliance. The concerned court shall send its report immediately after the compliance of the order of this Court.

Order Date :- 4.12.2017

SFH