Tarun Kumar Parida vs State Of Orissa
2023 Latest Caselaw 1788 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRA NO.300 of 1994

  (In the matter of application under Section 374(2) of
  the Criminal Procedure Code, 1973.).

  Tarun Kumar Parida                   ....     Appellant
                            -versus-

  State of Orissa                      ....   Respondent


  For Appellant            : Mr. S. Panda, Advocate


  For Respondent           : Mr. S.S. Pradhan, AGA

       CORAM:
                     JUSTICE G. SATAPATHY


                     DATE OF HEARING :21.02.2023
                     DATE OF JUDGMENT:27.02.2023


G. Satapathy, J.

1. An appeal having come to be filed U/S.374(2)

of Cr.P.C. by the appellant assailing his conviction for

offence U/S.7 of Essential Commodities Act, 1955 (in

short the E.C. Act) and sentence to undergo Rigorous

Imprisonment for a period of three months and to a pay a

fine of Rs.2,000/- in default whereof, to undergo further

R.I. for 40 days as passed/recorded on 17.08.1994 by

the learned Judge, Special Court, Phulbani in 2(c).C.C.

Case No.1 of 1991.

2. In the course of hearing of the appeal, Mr. S.

Panda, learned counsel for the appellant although

seriously challenges the conviction of the appellant, but

when this Court took him through the impugned

judgment by analyzing the same and convinced him that

the impugned judgment does not suffer from infirmity, he

promptly submits that the appellant does not intend to

challenge his conviction, but he craves for sympathetic

consideration for his sentence and accordingly, learned

counsel urges to modify the sentence of the convict-

appellant by releasing him under the beneficial provision

of Probation of Offenders Act, 1958 (in short, "P.O. Act")

instead of sentencing him at once. Learned counsel for

the State does not oppose such prayer of the appellant.

3. In view of the specific submission made by the

learned counsel for the appellant, this Court clarifies it

not to recapitulate the facts of the case in extenso, but

limits itself to state the necessary facts for disposal of

this appeal as, on 25.12.1990, the complainant-Marketing

Inspector, Phulbani being assisted by other Government

officials conducted raid in the house of convict-Tarun

Kumar Parida and found him to have stocked 62 bags of

rice weighing 42 Quintal 51 Kgs. & 300grams in his house

without any authority and, accordingly, on completion of

enquiry, the complainant filed a complaint against the

appellant in the learned trial Court for violation of Clause-

3(2) of Orissa Rice(Movement) Control Order, 1964

amended in the year 1990, Clause-3(2) & 2(1) of the

Orissa & Paddy Control Order, 1965 which are punishable

U/S.7 of the E.C. Act and Section 9 of E.C. Act. After

appreciating the evidence upon conclusion of trial and

hearing the parties, the learned Judge, Special Court,

Phulbani while finding the appellant not guilty of offence

U/S.9 of E.C. Act, found him guilty of offence punishable

U/S.7 of E.C. Act for violation of the above Control Orders

for unauthorizedly procuring and storing the above

quantity of rice and, accordingly, the appellant was

convicted and sentenced to the punishment indicated

above.

4. In the above backdrop of case, since the

appellant does not challenge his conviction, but prays for

modification of sentence, this Court now proceeds to

examine the position of law in this regard. Law is fairly

well settled in respect of sentencing a convict for an

offence not punishable with imprisonment for life or death

by way of extending the beneficial provision of P.O. Act.

In this regard, this Court considers it profitable to refer to

the following decisions.

5. In Harivallabha and another Vrs. State of

M.P.; (2005) 10 SCC 330, upon noticing the conviction

of the appellant for Sec.7 of the E.C. Act and High Court

reducing the sentence of imprisonment to three months,

the Apex Court in Paragraph 3 has held that:-

"A Court can refuse to release a person on probation of good conduct U/S.360 of the Cr.P.C., but in the facts and circumstances of the case, the appellants should have been dealt with under the provisions of Sec.360 of the Cr.P.C."

5.1 In Som Dutt and others Vrs. State of

Himachal Pradesh; (2022) 6 SCC 722, the Apex Court

in Paragraph-6 has held as under:-

"Having regard to sentence imposed by the Courts below on the appellants for the offence U/S.379 r/w Section-34 of IPC, and having regard to the fact that there are no criminal antecedents against the appellants, the Court is inclined to give them the benefit of releasing them on probation of good conduct."

5.2 In Lakhvir Singh Vrs. State of Punjab;

(2021) 2 SCC 763, while extending the benefit of Sec.

4 of P.O. Act to the convict, the Apex Court has held the

following in Para-6:-

"We may notice that the Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment.

Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved."

5.3 In Vipul Vrs. State of Uttar Pradesh;

(2022) SCC Online SC 1686, the Apex Court at

Paragraph-30 has held as under:-

"Section 360 pertains to an order after conviction, to be passed by the Court after admonition, facilitating a release and also probation of good conduct. It is to be exercised on two categories of persons. The first category consists of persons attaining 21 years and above with the proposed punishment for a term of 7 years or less. While the other for a larger term except punishable with death or imprisonment for life. This is made applicable to a convict aged under 21 years or any woman. The Court has to weigh the age, character and antecedent of the convict with the circumstances leading to the offence

committed. If satisfied, it can release the convict entering into a bond while a direction to keep the peace and maintain good behavior can be ordered during the said period. As discussed, this provision can be pressed into service while dealing with chapter-XXIA other than convicting a person after trial. Like the other two provisions involving plea bargaining and compounding, Sec. 360 of the Code is also a forgotten one."

5.4. In T. Sushila Patra Vrs. State; (1987) SCC

Online Ori 144, while extending the benefit of Sec. 360

of the Cr.P.C. to the convict-petitioner after confirming

her conviction in a case where she was sentenced to

undergo RI for six months with payment of fine of

Rs.1,000/- (Rupees One Thousand) in default whereof to

undergo further RI for one month for offence U/S.7(1)(a)

of the E.C. Act, this Court has held in Paragraph-8 as

under:-

"There is no doubt that the provisions of the Essential Commodities Act in certain circumstances prescribed imposition of a minimum sentence and it is undoubtedly a special statute, but neither of those two conditions totally bars the discretion of the Court to grant probation to the convict either

under the criminal procedure code or even under the relevant Sections of the Probation of Offenders Act."

6. In scrutinizing the facts of the case in the

backgrounds of the scope and object of P.O. Act and

authoritative pronouncements made in the cases referred

to above, it appears that the learned trial Court had not

delved the fact and situation in the case for not extending

the beneficial provision of P.O. Act to the appellant in the

impugned judgment, nor the learned trial Court had

assigned any reason for withholding the benefit of P.O.

Act to the appellant, but the fact remains that the

appellant was convicted in this case for commission of

offence U/S.7 of E.C. Act without specifying the particular

clause of the penalties prescribed in the aforesaid

Sections of the E.C. Act. However, taking into

consideration the guilt of the convict for offence U/S.7 of

E.C. Act for found stocked 62 bags of rice unauthorizedly

in his house in contravention of Clause-3(2) of Orissa

Rice(Movement) Control Order, 1964 amended in the

year 1990, Clause-3(2) & 2(1) of the Orissa & Paddy

Control Order, 1965 which is punishable U/Ss.7(1)(a)(ii)

of E.C. Act which prescribes with minimum punishment of

three months, but which may extend to seven years and

fine and, therefore, the benefit of Sec.3 of P.O. Act

cannot be extended to the convict-appellant. However,

the convict is first time offender and no previous

conviction of the appellant has been proved against him

and approximately 29 years have elapsed in the

meantime after conviction of the appellant and the

convict was aged about 31 years on the date of his

conviction and now he would be 60 years. This Court,

therefore, considers it unnecessary to send the convict-

appellant to jail custody to suffer his sentence at this

point of time. Besides, the sentence of the appellant to

pay fine of Rs.2,000/- appears to be harsh when he is

already found to have suffered the rigmarole of the trial

and appeal for more than 30 years, which was like the

sword of Damocles dangling over his head all through

these years. The State, however, has not come up with

any convincing materials to show that the convict is

incorrigible and cannot be reformed and as has already

been discussed that the object of punishment is also

reformative.

7. Hence, in the above circumstances, this Court

considers it proper to give the benefit of Sec.4 of P.O. Act

to the convict-appellant inasmuch as the offence with

which the appellant is convicted does not prescribes

punishment for life or death, and having regard to the

circumstances of the cases including the nature of offence

and the character of the appellant, it is considered

expedient to release the appellant on probation of good

conduct.

8. In the result, the appeal is dismissed on

contest, but in the circumstance, there is no order as to

cost. As a logical sequitur, the conviction of the appellant

is maintained, but instead of sentencing him to suffer any

punishment, it is directed that the appellant be released

U/S.4 of the P.O. Act for a period of one year upon his

entering into a bond of Rs.10,000/-(Rupees Ten

Thousand) with one surety to appear and receive

sentence, when called upon during such period and in the

meantime, to keep the peace and be of good behavior.

The appellant shall remain under the supervision of the

concerned Probation Officer during the aforesaid period.

The sentence is, accordingly, modified.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 27th day of February, 2023/Subhasmita