Jagannath Mandal vs State Of Orissa
2023 Latest Caselaw 4998 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRA NO.148 of 1994

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

  Jagannath Mandal                     ....       Appellant
                            -versus-

  State of Orissa                      ....    Respondent


  For Appellant            : Mr. D. Sethy, Advocate


  For Respondent           : Mr. M.S. Rizvi, ASC (Vig.)

       CORAM:
                     JUSTICE G. SATAPATHY


     DATE OF HEARING & JUDGMENT:03.05.2023


G. Satapathy, J.

1. This is an appeal U/S.374 of the Code of

Criminal Procedure, 1973 (in short the Code) by the

appellant calling in question the judgment of conviction

and order of sentence passed on 08.04.1994 by learned

Special Judge, Balasore in Special Case No.23 of 1992

convicting him for offence under section 7 of Essential

Commodities Act, 1955 (in short the E.C. Act) and

sentencing him to the punishment of Rigorous

Imprisonment(RI) for a period of six months and to pay a

fine of Rs.1,000/- (Rupees One Thousand) in default

whereof, to undergo R.I. for a further period of one

month.

2. The prosecution case in brief is, on a tip off, the

Officers of Vigilance Department, Cuttack inspected the

premises of M/s. Sri Jagannath Fertiliser and Cycle Shop

located at Remuna belonging to the appellant on

09.11.1989 in between 5.30 P.M. to 6.30 P.M., but on

demand, the appellant failed to produce any certificate of

registration/dealer's license authorizing him to carry on

business of fertilizers. Finding the certificate or license to

have not displayed in a prominent and conspicuous place

of his shop and also finding the appellant to have not

maintained the stock books or records relating to

business in fertilizers, it was considered to be violation of

provisions of Fertilizer (Control) Order, which is

punishable U/S.7 of EC Act and, accordingly,

different/various brands of fertilizers were seized and left

in the zima of the appellant. On the incident, P.W.6, Mr.

S.R. Singh, lodged a FIR before the Superintendent of

Vigilance, Balasore Division, Cuttack, which was

accordingly registered as Balasore Vigilance P.S. Case

No.35 of 1989 and P.W.6 on being permitted, continued

with the investigation and he, on completion of

investigation, submitted charge-sheet against the

appellant resulting in trial in the present case.

The appellant, accordingly, faced the trial for

offence U/S.7 of EC Act for contravention of Rules

3(3),4(a) and 4(b) and Rule 35(2) of the Fertilizer

(Control) Order, 1985. In the course of trial, the

prosecution examined six witnesses and relied upon

documents under Ext.1 to 7/2 as against oral evidence of

two witnesses and one document under Ext.A by the

defence. On completion of trial, after appreciating

evidence on record upon hearing of the parties, the

learned Special Judge, Balasore by the impugned order,

convicted the appellant for offence U/S.7 of EC Act and

sentenced him to the punishment indicated supra. Hence,

this appeal.

3. In the course of hearing of appeal, Mr. D.

Sethy, learned counsel for the appellant submits that

since the conviction has been recorded around 30 years

back, he does not wish to challenge the conviction, but

he, however, prays for clemency in sentence. Learned

counsel for the appellant accordingly, prays to extend the

benefit of P.O. Act to the appellant.

On the other hand, Mr. M.S. Rizvi, learned ASC

however, does not oppose the prayer as advanced on

behalf of the appellant for leniency in the sentence.

4. Although the appellant has not seriously

challenged his conviction for offence U/S.7 of EC Act, but

this Court considers it imperative to examine the legality

of the impugned judgment. Since P.W.6 being

accompanied by P.W.5, had conducted raid in the

premises of the shop of the appellant at the relevant time

of commission of offence, this Court considers it

imperative to examine the evidence of P.W.5 and P.W.6

prior to scrutinizing the evidence of other witnesses. P.W.

5 in his evidence, has stated that on 09.11.1989 at about

5.30 P.M., they arrived and found the shop of the

appellant M/s. Sri Jagannath Fertiliser and Cycle Shop

open and accused was present there and they then asked

the accused to produce the license for selling fertilizers

and book of accounts, but he could not produce the same

before them. It is his further evidence that they inspected

the shop and found the accused selling fertilizers and

they seized two packets of MOPT fertilizers having 10Kgs

each along with two packets of DAPE fertilizers having

10Kgs each, four packets of Amonia Sulphate having

50Kgs each, one bag of Gromor fertilizer having weight of

40Kgs and loose urea fertilizers of 35Kgs vide seizure list

under Ext.1. P.W.5 was thoroughly cross examined, but

nothing was elicited from his mouth to discredit his

evidence.

5. On the other hand, the evidence of P.W.5 is

fortified by the evidence of P.W.6, whose evidence

transpires that the appellant was found selling fertilizers

without maintaining any books of account. A careful

reappraisal of the evidence of prosecution witnesses

would go to reveal that the appellant was found selling

fertilizers without any proper license and records. On the

other hand, the defence had examined two witnesses, but

that is of no avail to the appellant to discredit the

evidence adduced by the prosecution. P.W. 1 albeit had

not supported the prosecution case, but that appears to

be insignificant when the evidence of P.Ws. 2 to 4

transpire about seizure of fertilizers from the shop of the

appellant. In such circumstance, especially when there

appears strong and reliable evidence against the

appellant and the learned trial Court having not

committed any illegality in appreciating evidence, the

conviction of the appellant cannot be faulted with.

6. Besides, the sentence of the appellant to the

punishment can be checked out in the light of submission

made by the appellant and whether any leniency in the

punishment can be extended to the appellant. In the

above backdrop, especially when the appellant does not

seriously challenge his conviction and prays for

modification of sentence, this Court now proceeds to

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

well settled that before sentencing a convict for an

offence not punishable with imprisonment for life or

death, it needs to be examined whether the beneficial

provision of Probation of Offenders Act, 1958 (in short

P.O. Act) can be extended to the convict instead of

sentencing him to imprisonment at once. In this regard,

this Court considers it profitable to refer to the following

decisions.

7. 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."

7.1. 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."

7.2. 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."

7.3. 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."

7.4. 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."

8. In scrutinizing the facts and evidence 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 possessing and selling different fertilizers

unauthorizedly in his shop in contravention of Rules 4(a)

and 4(b) of the Fertiliser (Control) Order, 1985 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 38 years on the

date of his conviction and now he would be 67 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.1,000/- appears to be harsh when he

had already found to have suffered the rigmarole of the

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

the "Damocles sword" 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, the appellant deserves to be released under

Sec. 4 of the P.O. Act.

9. 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 him on probation of good conduct.

10. 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 of imprisonment, 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 the sentence, when called upon during such

period and in the meantime, to keep 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

Digitally signed by SUBHASMITA SUBHASMITA DAS DAS Date: 2023.05.04 13:30:38 +05'30'

Orissa High Court, Cuttack, Dated the 3rd day of May, 2023/Subhasmita