Punjab-Haryana High Court
Avtar Singh vs State Ofpb on 24 January, 2024
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CRA-S-1781-SB-2003
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
110-2 cases CRA-S-1776-SB-2003
Date of decision: 24.01.2024
Avtar Singh .....Appellant
Versus
State of Punjab ..... Respondent
CRA-S-1781-SB-2003
Shavinder Singh .....Appellant
Versus
State of Punjab and another ..... Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr. R.S. Bains, Senior Advocate with
Mr. Aman Raj Bawa, Advocate
for the appellants in CRA-S-1781-SB-2003.
Mr. BD Sharma, Advocate
for the appellant(s) in CRA-S-1776-SB-2003.
Mr. Manipal Singh Atwal, DAG, Punjab.
*****
AMAN CHAUDHARY, J.
1. Both these criminal appeals arising out of a common judgment, are
thus being decided together.
2. Challenge in the present appeal is to the judgment/order dated
05.09.2003, passed by the learned Special Judge, Kapurthala, whereby the
appellants were convicted and sentenced to undergo rigorous imprisonment for
two years alongwith fine of Rs.3,000/- and in default of payment of the same, to
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further undergo rigorous imprisonment for one month for the offence under
Section 7 of the Essential Commodities Act, 1955 (for short 'the Act').
3. Succinctly, the facts of the case are that on 28.07.1995, a raid was
conducted on the premises of Chaheru Co-op. Agricultural Service Society,
Chaheru by Narinder Singh, Fertilizer Inspector headed by ASI Karamjit Singh.
Accused Shavinder Singh found there and stock of the fertilizer was lying in the
premises of the said society. On asking of the purchase bill, he could not produce
the same. Samples were taken and sealed, thereafter sent for examination.
4. After completion of investigation, notices under Section 7 of the Act
were served to the accused-appellants by the trial Court.
5. The prosecution, in order to prove its case, examined as many as 5
witnesses. Thereafter, the statements of the accused-appellants were recorded
under Section 313 Cr.P.C. whereby incriminating evidence was put to them, which
they denied and pleaded innocence. In defence, they did not lead any evidence.
6. The trial Court came to the conclusion that prosecution has proved its
case, and accordingly convicted and sentenced as mentioned in para No.2 above.
7. Aggrieved accused-appellants are before this Court.
8. Learned counsel for the appellants, at the outset, give up the
challenge to the appeals on merits and prays for extending the benefit of probation
in view of the facts that they are the sole breadwinners of their respective families;
the incident pertains to the year 1995; first time offenders and never misused the
concession of bail granted to them.
9. Learned State counsel submits that after appreciating the evidence led
by the prosecution, the trial Court has rightly convicted the accused-appellants.
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Thus, he prays for the dismissal of the present appeal. He, however, affirms the
factum of non-involvement of the appellants and misused the concession of bail
granted to them.
10. Heard the learned counsel on either side and perused the record.
11. Evidently, the trial Court had thoroughly examined the evidence and
categorically recorded that the bags containing fertilizers, the details whereof,
were given in the complaint, were lying in the premises of accused No.1. As per
the report of the Chemical Analyst, the fertilizer contained therein was found to be
spurious and non-standard. Thus, there is no scope for interference in the findings
recorded and conclusion arrived at by the trial Court. As such, the conviction of
the appellants is affirmed.
12. As regards the prayer made on behalf of the appellant is concerned, it
would be apposite to make a reference to Section 4 of the Probation of Offenders
Act, 1958, which reads thus:
"4. Power of Court to release certain offenders on
probation of good conduct.-
(1) When any person is found guilty of having committed an
offence not punishable with death or imprisonment for life and
the Court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the
nature of the offence and the character of the offender, it is
expedient to release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the
time being in force, the court may, instead of sentencing him at
once to any punishment direct that he be released on his
entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period, not
exceeding three years, as the Court may direct, and in the
meantime to keep the peace and be of good behaviour:
Provided that the Court shall not direct such release of an
offender unless it is satisfied that the offender or his surety, if
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any, has a fixed place of abode or regular occupation in the
place over which the Court exercises jurisdiction or in which
the offender is likely to live during the period for which he
enters into the bond.
(2) Before making any order under sub-section (1), the court
shall take into consideration the report, if any, of the probation
officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court
may, if it is of opinion that in the interests of the offender and
of the public it is expedient so to do, in addition pass a
supervision order directing that the offender shall remain under
the supervision of a probation officer named in the order during
such period, not being less than one year, as may be specified
therein, and may in such supervision order, impose such
conditions as it deems necessary for the due supervision of the
offender.
(4) The court making a supervision order under sub-section (3)
shall require the offender, before he is released, to enter into a
bond, with or without sureties, to observe the conditions
specified in such order and such additional conditions with
respect to residence, abstention from intoxicants or any other
matter as the court may, having regard to the particular
circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of other
offences by the offender.
(5) The court making a supervision order under sub-section (3)
shall explain to the offender the terms and conditions of the
order and shall forthwith furnish one copy of the supervision
order to each of the offenders, the sureties, if any, and the
probation officer concerned."
13. It would be worthwhile to refer to the judgment of Ratan Lal vs.
State of Punjab, AIR 1965 SC 444, whereby Hon'ble the Supreme Court,
regarding the purpose and object of 'The Probation of Offenders Act, 1958' had
observed and held that, "The Act is a milestone in the progress of the modern
liberal trend of reform in the field of penology. It is the result of the recognition of
the doctrine that the object of criminal law is more to reform the individual
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offender than to punish him. Broadly stated the Act distinguishes offenders below
21 years of age and those above that age, and offenders who are guilty of having
committed an offence punishable with death or imprisonment for life and those
who are guilty of a lesser offence. While in the case of offenders who are above
the age of 21 years, absolute discretion is given to the court to release them after
admonition or on probation of good conduct, subject to the condition laid down in
the appropriate provision of the Act, in the case of offenders below the age of 21
years an injunction is issued to the court not to sentence them to imprisonment
unless it is satisfied that having regard to the circumstances of the case, including
the nature of the offence and the character of the offenders, it is not desirable to
deal with them under Ss. 3 and 4 of the Act."
14. Hon'ble the Supreme Court in Sitaram Paswan and Anr. vs. State
of Bihar, AIR 2005 SC 3534, observed that benefit of probation can be extended
at the appellate or revisional stage as well, and held that, "For exercising the
power which is discretionary, the Court has to consider circumstances of the case,
the nature of the offence and the character of the offender. While considering the
nature of the offence, the Court must take a realistic view of the gravity of the
offence, the impact which the offence had on the victim. The benefit available to
the accused under Section 4 of the Probation of Offenders Act is subject to the
limitation embodied in the provisions and the word "may" clearly indicates that
the discretion vests with the Court whether to release the offender in exercise of
the powers under Section 3 or 4 of the Probation of Offenders Act having regard
to the nature of the offence and the character of the offender and overall
circumstances of the case. The powers under Section 4 of the Probation of
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Offenders Act vest with the Court when any person is found guilty of the offence
committed, not punishable with death or imprisonment for life. This power can be
exercised by the Courts while finding the person guilty and if the Court thinks that
having regard to the circumstances of the case, including the nature of the offence
and the character of the offender, benefit should be extended to the accused, the
power can be exercised by the Court even at the appellate or revisional stage and
also by this Court while hearing appeal under Article 136 of the Constitution of
India."
15. A gainful reference can be made to Harivallabha vs. State of M.P.,
(2005) 10 SCC 330, and Dhurukumar vs. State of Maharashtra, (2017) 9 SCC
411, wherein the respective accused were convicted and sentenced under Section
7 of the Essential Commodities Act, 1955, Hon'ble the Supreme Court
considering that they were first time offenders and ought to have been granted the
benefit under Section 360 CrPC, released them on probation.
16. Hon'ble the Supreme Court in Tarak Nath Keshari v. State of West
Bengal, 2023(2) Law Herald (SC) 1391, by observing that even if a minimum
sentence is provided in the Essential Commodities Act, 1955, the same will not be
a hurdle for invoking the applicability of provisions of the Probation of Offenders
Act, 1958 and released the appellant on probation, while considering the fact that
the act was committed more than 37 years and he was not involved in any other
offence. Similarly in Naresh Kumar vs. State, 2001 SCC OnLine Del 557, a case
relating conviction under the Essential Commodities Act, 1955, it was held by the
High Court that the accused deserved the benefit of probation under Section 4 of
the Probation of Offenders Act, 1958, especially in view of the fact that he had
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suffered the agony of trial lasting for about five years; the offence was of a
technical nature; not a previous convict and also the offence committed by him
was not one punishable with life imprisonment.
17. In Satish vs. State of U.P., (2021) 14 SCC 580, Hon'ble the Supreme
Court had observed that, "Whilst it is undoubtedly true that society has a right to
lead a peaceful and fearless life, without free roaming criminals creating havoc in
the lives of ordinary peace loving citizens. But equally strong is the foundation of
reformative theory which propounds that a civilised society cannot be achieved
only through punitive attitudes and vindictiveness; and that instead public
harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first
time offenders ought to be liberally accorded a chance to repent their past and look
forward to a bright future. [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981
SCC (Cri) 112]".
18. Humanistically viewing, the appellants having suffered the ignominy
of trial since long; successfully warded off their crime-proneness-an evident
learning of a lesson; their socio-economic circumstances, this Court finds
extenuation to be implicit. Thus, to strike a balance and serve the interest of
justice, the appellants deserve to be granted an opportunity to assure the
authorities of their reformation. They be released on probation for a period of one
year, on the following conditions as enshrined under Section of the Probation of
Offenders Act, 1958:
(1) They shall execute a bond for good behaviour with two
solvent sureties in a sum of Rs.10,000/- each which shall be
executed before the trial Court within a period of one month
from today.
(2) The said bond shall be in force for a period of one year.
(3) They shall be subject to the supervision of the Probation
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Officer and subject to the conditions laid down in the Probation
of Offenders Act.
19. It is clarified that in case there is any breach of the aforesaid
conditions, the defaulter-appellant(s) will forthwith be taken into custody and shall
have to undergo the sentence awarded to them by the trial Court.
20. Appeals stand disposed of accordingly.
21. A photocopy of this order be placed on the file of the connected case.
(AMAN CHAUDHARY)
JUDGE
24.01.2024
Hemant
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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