Delhi High Court

Lachhi Ram vs State on 23 September, 2009

Author: Mool Chand Garg

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl.App. 426/1998
                                      Date of Reserve: 15.09.2009
%                                     Date of Decision:23.09.2009

#       LACHHI RAM                                      ..... Appellant
!                               Through:     Mr. K.K. Sud, Sr. adv. with
                                             Mr. Kunal Malhotra, adv.

                    Versus


$       STATE                                         ..... Respondent

^                         Through:    Mr. Arvind Kr. Gupta, APP.

        CORAM:
        HON'BLE MR. JUSTICE MOOL CHAND GARG

1.      Whether the Reporters of local papers may be allowed         Yes
        to see the judgment?

2.      To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported in the Digest? Yes

: MOOL CHAND GARG,J

1. This appeal arises out of the order passed by the Addl. Sessions

Judge in case FIR No. 164/1988 which was registered against the

appellant under Section 7/10/55 of the Essential Commodities Act at

P.S. Mangolpuri.

2. Briefly stating the facts of this case are that appellant is holder

of Fair Price shop bearing no. 5076 situated at 580 Mangolpuri, which

was raided on 12.05.1989 and the records were checked. Certain

irregularities were found inasmuch as the verification of 11 card-

holders goes to show that they have denied wholly or partially

receipt of rice as indicated in their cash memos. There was shortage

in delivery of 103 Kg of rice and it was a case which was found to be

in violation of condition number 6 of the license (Ex PW1/A) and

Clause 19 (6) of the Delhi Specified Articles (Regulation and

Distribution) order 1981 (Ex. PW2/A). After recording the evidence

the Trial Judge was satisfied that the charges leveled against the

appellant were made out and consequently the appellant was

convicted under Section 7 of the Essential Commodities Act in

respect of violation of the conditions of license issued to him for

issuing less rice in two cases and the stock found in excess of the

same and accordingly he was sentenced to undergo R.I. for 6 months

and was also directed to pay fine of Rs. 10,000/- and in default of the

payment the appellant was directed to undergo further S.I. for one

month. This judgment was delivered on 01.08.1988.

3. The appellant was released on bail pending hearing of this

appeal vide order dated 15.10.1998. The appeal came up for hearing

only on 15.09.2009 as on earlier dates when the appeal was listed the

appellant failed to appear and therefore his non-bailable warrants

were issued. However, on 15.09.2009 the appellant appeared. His

counsel at that time under the instructions of the appellant said that

he is not pressing the appeal on merits and only stated that sentence

awarded be reduced to the period already undergone. Reliance was

placed on following judgments:

i. Ghanshyam Das Vs. Municipal Corporation of Delhi, AIR 1975, SC 845 ii. Naresh Kumar Vs. State, 91 (2001) DLT 614 iii. Harivallabha & Anr. Vs. state of M.P. 2005 SC (Cri) 454

4. However, the learned APP opposed the request in view of

Section 7(1)(a)(2) of the Essential Commodities Act.

5. I have gone through those judgments. The judgment in the

case of Ghanshyam Das (supra) was delivered in the context of a food

adulteration matter where as the matter was pertaining to the year

1965, and the appeal came up for hearing before the Hon'ble

Supreme Court on 06.08.1974, it was observed:

After hearing the learned counsel for the parties, we are of the view that as the matter pertains to the year 1965 and as the appellant since then has had to face protracted criminal proceedings, it would not seem proper to send the appellant to jail. In our opinion, it is a fit case in which the order of the learned Additional Sessions Judge by which he directed that the appellant be bound down under Section 4 of the Probation of Offenders Act be restored. We accordingly accept the appeal, set aside the judgment of the High Court and restore the order of the Additional Sessions Judge whereby the appellant was ordered to be bound down under Section 4 of the Probation of Offenders Act on his executing a personal bond in the sum of Rs 2000 with one surety for the like amount to the satisfaction of the Chief

Judicial Magistrate.

6. In another judgment delivered in the case of Naresh Kumar

(supra) a Hon'ble Judge of this Court in a case under Section 7 of the

Essential Commodities Act 1955, where the appellant had to undergo

trial for 5 years and he was not a previous convict, Judge granted

benefit of Section 360 of Cr.P.C. by holding that offence was found to

be technical in nature and was not punishable with life

imprisonment. The relevant observations are made in paragraphs 2

& 3 of the aforesaid judgment.

2. Learned counsel for the appellant does not challenge the order of conviction on merits. He, however, submits that in the facts of the present case, the appellant ought to have been given the benefit of probation under Section 360, Cr.P.C. and/ or the Probation of Offenders Act. He submits that the offence was committed on 3rd October, 1996 for violating notification, which prohibited storing of edible oil beyond a particular measure. However, this notification was withdrawn on 10th November, 1997. He submits that the offence, if at all, now is of technical nature and does not warrant imprisonment.

3. He draws my attention to the judgment of the Orissa High Court in T. Susila Patra and Another V. State, 1987 (1) Crimes 654, decided on 22nd January, 1987, where the court, relying upon an earlier judgment of the Punjab and Haryana High Court in Joginder Singh V. Sate of Punjab, 1980 Crl.L.J. 1218, held that in an offence triable under the Essential Commodities Act, although the minimum sentence is prescribed, yet there is no bar to giving benefit under Section 360, Cr.P.C. or the Probation of Offenders Act. Learned Counsel for the State submits that in view of the nature and sentence of the offence committed, it is a fit case where Court can exercise its power and give the accused the benefit under Section 360, Cr.P.C.

7. In the third judgment Hon'ble Supreme Court directed release

of the appellant on probation of good conduct in a case under Section

7 of the Essential Commodities Act by invoking Section 360 of Cr.P.C.

The judgment which is a short judgment is reproduced hereunder:

2. The appellants were convicted by the trial court under Section 7 of the Essential Commodities Act, 1955 and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs 10,000. On appeal being preferred, the High Court upheld the conviction and sentence of fine, but reduced the sentence of imprisonment from three years to three months. Hence, this appeal by special leave.

3. Learned counsel appearing on behalf of the appellants submitted that the appellants are first offenders and in the facts and circumstances of the case they should have been dealt with under the provisions of Section 360 of the Code of Criminal Procedure, 1973 (for short "the Code") and the High Court reduced the sentence of imprisonment from three years to three months without recording any reasons, as required under Section 361 of the Code, which lays down that for special reasons to be recorded, a court can refuse to release a person on probation of good conduct under Section 360 of the Code. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of Section 360 of the Code.

4. Accordingly, the appeal is allowed in part and while upholding the conviction and sentence of fine awarded to the appellants, sentence of imprisonment awarded against them is set aside and the trial court is directed to deal with them under the provisions of Section 360 of the Code. The appellants, who are on bail, are discharged from the liability of bail bonds.

8. The offence under Section 7 of the Essential Commodities Act is

punishable as follows:

7. Penalties. [(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

(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:

10* * * * *

(b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any packing, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property 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

9. Learned APP opposing the prayer has cited a judgment

delivered by the Hon'ble Supreme Court in the case of K. Krishna Iyer

Vs. State of Kerala & Anr. (1993) 3 SCC 226 which of course has been

given in a case pertaining to the case of Prevention of Food

Adulteration Act, where also a similar plea was taken that in view of

the occurrence having taken place more than a decade ago

sympethatic view be taken, the Hon'ble Supreme Court has been

pleased to observe as follows:

11. The argument of the learned counsel for the appellant that since the appellant has been on bail in this Court and the occurrence took place more than a decade ago, a sympathetic view be taken and his

appeal be accepted and he be acquitted, is to say the least, a rather ambitious submission and we cannot agree. Indeed, there has been some lapse of time since the offence was committed in 1981 but that lapse of time alone cannot come to the aid of the appellant because having found the appellant guilty of an offence under Section 16(1)(a)(i) read with Section 7(1) of the Act, this Court is obliged to convict the appellant and not let the crime go unpunished. The appellant has been prosecuting the case in appeal and revision and the High Court dismissed his revision petition in 1985. The appeal has remained pending in this Court ever since and as the appellant had obtained an order of bail, he, obviously was not interested in an early disposal of the appeal and took no steps in that behalf. The pendency of the appeal in this Court for about six years does not by itself render the conviction bad or raise any other equity in his favour. We can take even a judicial notice of the fact that the type of adulterated article sold by the appellant is the one generally consumed by children and it is not only illegal but even immoral to serve them with articles containing artificial sweeteners use whereof has been prohibited by the statute. Just because the appeal has remained pending here since 1985 the society cannot be made to suffer for this delay by letting the criminal go unpunished as a crime of this nature, being a crime against the society at large, cannot be ignored. Sympathy in such cases is totally misplaced.

10. A case under The Essential Commodities Act is not different

than the case under The Prevention of Food Adulteration Act. Both

the enactments are meant for prevention of public goods. In either of

the case violator affects the common man. In this case premises of

the petitioner was inspected on 12.05.1989. Insofar as the pendency

of appeal is concerned, appellant is also blameworthy inasmuch as,

on few hearings he did not appear and, therefore, non-bailable

warrants were issued against him which is also a reason for delay in

this case.

11. Thus, taking into consideration his own conduct in trying to

delay the matter by not appearing and for which this Court was

compelled to issue non-bailable warrants against him, I find it a fit