Prem Chandra Gupta vs State
2022 Latest Caselaw 10560 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 1128 of 1987
 

 
Appellant :- Prem Chandra Gupta
 
Respondent :- State
 
Counsel for Appellant :- Swaraj Prakash,Vikas Mishra
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.

1. Present appeal has been filed by accused appellant- Prem Chandra Gupta against the judgment and order dated 9.4.1987 passed by Special Judge/ Economic Offences, Allahabad in Criminal Case No.2 of 1984, arising out of Crime No.140 of 1983 State vs. Prem Chandra Gupta convicting the appellant under section 3/7 Essential Commodities Act read with U.P. Kerosene Control Order, 1962 and imposing sentence for six months rigorous imprisonment with fine of Rs.500/- and in default of payment of fine three months additional rigorous imprisonment and under Section 3/7 E.C. Act read with U.P. High Speed Diesel Oil (Maintenance of Supplies and Distribution) Order 1980 imposing sentence for six months rigorous imprisonment with fine of Rs.500/- and in default of payment of fine three months additional rigorous imprisonment. The aforesaid sentences were ordered to run consecutively.

2. The brief facts arising out of this appeal are as follows :-

On 5.7.1983 P.W.1 R.C. Sharma, the then Sub-Divisional Magistrate, Handia on some reliable information that accused- Prem Chandra Gupta was dealing in the sale of kerosene oil and high speed diesel oil without any permit, along with police officials made a raid on the shop of the accused who tried to run away from the spot but got caught over there. A search was made and the huge stock of kerosene oil and diesel oil along with other articles and note-book were recovered. The accused could not show any license for keeping the aforesaid oil and after completing necessary legal formalities on spot, the FIR was lodged against the accused. After investigation and after obtaining prosecution sanction from the District Magistrate, Allahabad, charge-sheet was filed before the Court.

3. The prosecution in order to prove its case examined P.W.1/ complainant, R.C. Sharma, and P.W.2, S.I. Kaushal Kumar Misra, Investigating Officer. The facts of the case were proved by P.W.1 in his deposition and P.W.2 proved the proceedings of the investigation and also the FIR and G.D. of the case. Relevant documents were also filed by the prosecution.

4. The appellant/accused in his statement under section 313 Cr.P.C. categorically denied the truthfulness of the evidence produced against him and no defence evidence was adduced.

5. The trial Court after perusing the record and analysing oral and documentary evidence produced against the accused-appellant recorded a finding that the evidence rendered by the prosecution is trustworthy.

6. It was found that the prosecution has succeeded to prove its case beyond reasonable doubt and the accused-appellant was found guilty of storing for sale high speed diesel oil in excess of the limit specified by U.P.H.S.D. Oil (Maintenance of Supplies and Distribution) Order 1980 and thereby he contravened the provisions of U.P. Kerosene Control Order 1962 and U.P. High Speed Diesel Oil (Maintenance of Supplies and Distribution) Order 1980 which was punishable under section 3 read with Section 7 of Essential Commodities Act and a conviction was recorded accordingly and the accused-appellant was sentenced to rigorous imprisonment for a period of six months and a fine of Rs.500/- for each of the two offences.

7. During the course of argument, the learned counsel for the appellant submits that there is no error in the conviction recorded by the trial court but the imposition of sentence by the trial court is too harsh. The attention of this Court has been drawn towards the provisions of section 7(1)(a)(ii) of the Essential Commodities Act which provides that for adequate and special reasons mentioned, the sentence imposed may be less than three months. It has been submitted that at present the appellant is aged about 64 years and the appeal was filed in the year 1987 and about 35 years have passed. It has been further submitted that the appellant has already suffered since long on account of the pendency of the present criminal proceedings going on against him. It has also been submitted that the appellant in this case has been detained in jail for some days and fine imposed upon him for Rs.500/- for each of the two offences has already been paid which is evident from the order-sheet of the trial Court and the trial Court has passed a sentence of rigorous imprisonment for six months. It has been submitted that the sentence as imposed by the trial court may be modified to the extent of the period already undergone.

8. The learned A.G.A. has made no objections to the submissions of the learned counsel for the appellant on the question of sentence and submitted that in view of the long pendency of the criminal proceedings against the appellant, the sentence imposed by the trial Court may be reduced.

9. From the perusal of the record, it is evident that the finding and conclusion given by the trial Court are on the basis of the evidence and facts on record which require no interference. On the basis of the facts and evidence on record, the conviction of the appellant has been correctly recorded by the trial Court.

10. The principle of law is well settled that the principle of proportionality between the punishment and crime cannot be brushed aside and the sentence must be just and proper. No doubt the concept of proportionality permits of discretion to the court but the same has to be guided by certain principles. Hon'ble Supreme Court in Raj Bala vs. State of Haryana & Ors (passed in Special Leave Petition (Crl.) Nos.4099-4100 of 2015) in this context, has observed that neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. There can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. 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, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances.

11. In the instant case, criminal machinery came into motion about 39 years ago and the present appeal has been pending for 35 years. There is nothing on record to show that the appellant is a previous convict or having any criminal antecedents. Also the accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. He is an old person. It has been submitted and also finds support from the record that the appellant remained in custody for some days during trial. Total amount of fine has been deposited by him. Hence, considering all aspects of the matter, no useful purpose would be served by sending accused-appellant in judicial custody at this stage, rather in the aforesaid special circumstances, it appears that ends of justice would be served if sentence imposed upon the appellant by the trial court be modified to the extent that the sentence of the period already undergone is imposed and as such the appeal is liable to be partly allowed accordingly.

12. Therefore, the conviction of accused-appellant Prem Chandra Gupta is upheld, but sentence of six month imprisonment for each of the two offences, awarded by the trial court, is modified to the period of sentence already undergone by him.

13. The instant appeal is party allowed in above terms.

14. A copy of this order be transmitted to the court concerned.

Order Date :- 18.8.2022

Shiv