Rama Ram vs State Of U.P.
2022 Latest Caselaw 12113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 89
 

 
Case :- CRIMINAL APPEAL No. - 1980 of 1988
 

 
Appellant :- Rama Ram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amar Saran,Mahendra Singh Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Mahendra Singh Yadav, learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.

2. This criminal appeal under Section 374(2) Cr.P.C. has been filed by the appellant against the judgment and order dated 30.08.1988 passed by Special Judge, Ghazipur, in Criminal Case No.20 of 1986, Crime No.38 of 1986, under Section 7 of Essential Commodities Act convicting the appellant to undergo three months simple imprisonment and to pay a fine of Rs.500/- and in default of fine he will undergo one month rigorous imprisonment.

PROSECUTION STORY:

3. As per the allegations in the F.I.R., on 06.02.1986 at about 1:30 pm, the appellant-accused was found selling fertilizer without licence in his village Baraha, P.S. Shadiabad, District Ghazipur. At the time of checking, the appellant-accused had produced an authority letter of the District Agriculture Officer dated 24.08.1985, but the place where the District Agriculture Officer had permitted the sale of fertilizers to the appellant-accused was different from the place where he was found selling the fertilizer and thus, the appellant was found guilty of the violation of the provisions of the Fertilizer Control Order, 1957. The F.I.R. was lodged by S.I. Rajendra Singh at P.S. Shadiabad and investigation was undertaken by the Investigating Officer and after taking up the statements of the witnesses, preparing the site plan, taking on record the memo and other documents, a charge-sheet was filed against the appellant-accused.

TRIAL:

4. The present case is a summary trial as provided under the provisions of Essential Commodities Act, 1955. The prosecution had examined four witnesses to prove its case.

5. PW-1 Ram Prasad and PW-2 Basu Yadava are the public witnesses. They have not supported the prosecution story. They have resiled from their earlier statements recorded by the Investigating Officer under Section 161 Cr.P.C. and were declared hostile by the public prosecutor and were cross-examined by him.

6. PW-3 is the Constable Sant Ram Yadav, who is the scribe of F.I.R., which is proved as Ex.Ka.1 and also entered the institution of the said F.I.R. the same day on 06.08.1986 at 5:30 pm.

7. PW-4 is the Sub Inspector Rajendra Singh, the informant. He had stated that on the said fateful date of occurrence i.e. 06.02.1986 at about 1:30 pm, he alongwith Constables Bhava Nath Pandey, Purushottam Singh and Gorakh Yadava, had checked the shop of the appellant and had found him selling the fertilizers and one and half bag of Urea was found in the stock. The stock register indicated that he was supposed to have seven bags of fertilizers. There was nothing on record to suggest about the sale of five and half bags of fertilizer. The entries in stock register was not made properly and thus, the appellant has flouted the provisions of the Fertilizer Control Order, 1957 and has committed an offence under Section 7 read with Section 3 of the Essential Commodities Act.

8. The licence shown by the appellant was of a different shop in the same village and he was selling the said fertilizer in another shop. Thus, has categorically flouted the provisions of the Fertilizer Control Order, 1957.

9. The memo of recovery of the registers has been proved as Ex.Ka-6. The registers have been proved as Ex.Ka.3, Ex.Ka.4 and Ex.Ka.5. The said recovered fertilizer was given in possession of a person of the locality and the said Supurdaginama has been proved as Ex.Ka.7. The other documents were also filed by the prosecution i.e. site plan, the sanction of the District Magistrate and the charge-sheet. The formal proof of these documents has been dispensed with by the counsel for the appellant, as such, they were also exhibited as Ex.Ka.8, Ex.Ka.9 and Ex.Ka.10 respectively.

10. The trial court after perusal of the statements of the witnesses and the documentary evidence had found the appellant guilty under Section 7 of Essential Commodities Act and had given a finding to the fact that the appellant had a valid licence to sale the said fertilizers. The only offence attributed to the appellant was that he was selling the said fertilizers in a shop adjacent to the place where he was provided a licence to sell it and also that he had not properly maintained the stock register. The appellant was convicted to undergo three months of simple imprisonment and a fine of Rs.500/- vide order dated 30.08.1988.

RIVAL CONTENTIONS:

11. Learned counsel for the appellant, at the outset, has stated that the offence is a petty offence and is of 1988 and more than three decades have passed since the said offence and the appellant is living with a stigma of a convicted person since last 34 years. Learned counsel has further stated that he has obtained instructions from his client and he does not propose to challenge the impugned judgment and order on merits although he has prayed for modification of the order of sentence to the period already undergone by him. The appellant has not indulged in any other criminal activity since the said order of conviction and at this point of time, his age is 60 years, if convicted, his further life shall go to peril. No offence against the society has been committed by the appellant. There is no allegation against the appellant of having sold the misbranded fertilizer or having been indulged in black marketing. Learned counsel has further stated that the appellant is the sole breadwinner of the family and considering the age of the appellant-accused and his ailments, a lenient view may be taken regarding the quantum of sentence. It has further been stated that the appellant has deposited the fine of Rs.500/- in the court concerned on 08.09.1988, which is on record. Learned counsel has further stated that after his arrest, the appellant had undergone a sentence of more than 16 days as he was arrested on 06.02.1986 and a release order was passed on 22.02.1986.

12. Per contra, Sri Vaibhav Anand, learned A.G.A. has vehemently opposed the criminal appeal and stated that the trial court has awarded a proper sentence to the accused person and no interference in the sentence is warranted. Hence, the appeal be dismissed and the appellant is directed to undergo the remaining period of sentence.

CONCLUSION:

13. In case of Kokaiyabai Yadav vs. State of Chhattisgarh1, the Apex Court at the time of reducing the sentence of the appellant has opined that:-

"6. If the object of our justice system is to reform the criminal, the appellant's exemplary conduct has aptly fit the bracket. Punishment can be used as a method of reducing the incidence of criminal behaviour either by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world have the capacity of humanising this world. The crime was a result of a conflict between the motive of the mother and her character, with the motive triumphing. However, the 13 years she has spent in the prison, she has built her character moulding it by educating herself and learning the ways of life. The reformed appellant will be able to add value to the life of her now 15-year old son, by taking what she has learnt in these past few years and living by it...."

14. In case of Mohammad Giasuddin vs. State of Andhra Pradesh2, the Apex Court has opined that:-

"8. An aside. A holistic view of sentencing and a finer perception of the effect of imprisonment give short shrift to draconian severity as self-defeating and fillips meditational relaxation, psychic medication and like exercises as apt to be more rewarding. Therefore, the emphasis has to be as much on man as on the system, on the inner imbalance as on the outer tensions. Perhaps the time has come for Indian criminologists to rely more on Patanjali sutra as a scientific curative for crimogenic factors than on the blind jail term set out in the Penal Code and that may be why Western researchers are now seeking Indian Yogic ways of normalising the individual and the group.

9....It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an "in terrorem" outlook, should prevail in our Criminal Courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: "If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the Criminal courts, you should see for yourself the conditions under which prisoners serve their sentences". In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion:

"Circuit Judge Christmas Humphreys told the BBC reporter recently that a Judge looks 'at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself'. In the context of karuna and punishment for karma the same Judge said: 'The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him, that is what compassion means'....."

(The Listener, November 25, 1976, p. 692.)"

15. It transpires from the aforesaid case laws settled by the Apex Court, the criminal jurisprudence adopted in the country is not retributed but reformative and corrective and undue harshness should be avoided keeping in view the reformative approach.

16. It is an admitted fact that the appellant held a valid licence to sell the fertilizer. The only offence attributed to him is that he was found selling it in another shop although in the same vicinity. His sale-purchase record was also found as not proper.

17. After considering the rival submissions and considering the facts and circumstances of the case and also the fact that the alleged incident took place in the year 1986 and about 36 years have passed since then and the appellant is a person of 60 years of age, this Court is of a view that it would not be proper to send the appellant-accused to jail at this stage of his life and he is on bail since 22.02.1986 and has already suffered the pain of a convicted person for more than 36 years having no criminal antecedents to his credit.

18. Considering all the aforesaid facts, it would be appropriate and proper that the accused be sentenced to the period already undergone by him during trial and the amount of fine imposed be enhanced.

19. The appellant-accused is sentenced to the period already undergone by him during trial and the fine of Rs.500/- imposed on him, which had already been deposited in court by him on 08.09.1988, is enhanced to Rs.10,000/-. This fine of Rs.10,000/- shall be in addition to the fine already deposited by the appellant.

20. The appellant-accused is directed to deposit the fine of Rs.10,000/- before the court concerned within a period of one month of passing of this judgment and in default of payment of fine, the appellant-accused shall have to further undergo fifteen days of imprisonment.

21. The appeal is allowed in part in the aforesaid terms.

22. Let a copy of this judgment alongwith the trial court record be sent to the court concerned for necessary compliance.

Order Date :- 06.09.2022

Ravi Kant

Krishan Pahal, J.