RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1335 OF 2001 (OLD NO. 1589 OF 1988) Ganeshi Lal, S/o Makhan Lal R/o Lal Kuan, District Nainital. ………. Appellant Versus The State …………… Respondent Dated: March 07, 2008 Sri Siddhartha Sah, learned counsel for the appellant Sri Harish Pujari, learned Addl, GA for the State / Respondent. HON. DHARAM VEER, J. This appeal preferred, under section 374(2) of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 20.06.1988 passed by Special Judge, Nainital in Criminal Case No.7 of 1986, State Vs. Ganeshi Lal, whereby the appellant has been convicted under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) for violating the provisions of U.P. Foodgrains Dealers (Licensing And Restriction on Hoarding), Order 1976 and was sentenced to 3 months R.I. and fine of Rs.500/- and in default of payment of fine, one month further R.I. was awarded. The appellant was further convicted u/s 3 read with Section 7 of the Act for violating Section 4 of the U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977 and was sentenced to 3 months R.I. and fine of Rs.500/- and in default of payment of fined, to undergo further R.I. for one month. Both the sentences were directed to run concurrently. 2. In brief the prosecution case is that Sri R.P. Pandey, District Supply Officer along with Sri M.C. Pant, Supply Inspector, Sri R.C. Tripathi, Supply Inspector, Sri Anand Singh Rawat, Supply Inspector, Sri Devi Ram Arya, Supply Inspector and Sri Dev Singh, Peon of District Supply Officer, Nainital Inspected the go-down of appellant- Ganeshi Lal at 4:00 P.M. on 14.09.1982. Firstly, it was found that there was no index list or board showing the name of the firm and the articles stored therein, which could show that the said go- down was belonging to the appellant. It was also found that in the go-down, 18 bags and one small bag (katta) weighing about 18.50 quintals of rice were found, however the appellant could not produce any valid licence for storing the foodgrains in his go-down. Further, in the go-down of the appellant, no index list with regard to sugar, pulses, flour and other essential articles was found. Apart from this no stock register, sale register or cash memo was found in the go-down of the appellant. The appellant also could not shown valid licence for keeping salt in his go-down. Thereby, a case of breach of control orders punishable under the aforesaid Ac was made out. With the same averments, Sri R.P. Pandey, District Supply Officer gave the report to S.O. Lalkuan, i.e. Ex.Ka-2 on 14.9.1982. The inspecting party seized the recovery articles on the spot and prepared the Fard of recovery i.e. Ex.Ka-1 and the goods was given in the Supurdgi of Sri Om Prakash Aggarwal. On the basis of the said report, the Chik F.I.R. was prepared by Constable Clerk Sri Madan Narayan, i.e. Ex.Ka.4. The investigation of the case was entrusted to S.I. Kripa Ram. During the course of the investigation, the Investigating Officer inspected the place of occurrence and prepared the site plan i.e. Ex.Ka.3. Ex.Ka-6 is the sanction accorded by District Magistrate, Nainital for prosecution of the case. During the course of the investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant, i.e. Ex.Ka.5. 3. The prosecution in order to prove its case got examined P.W.1. M.C. Pant, Supply Inspector, P.W.2 R.C. Tripathi, Supply Inspector and P.W.3 Kripa Ram, Investigating Officer of the case. 4. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form but he denied the allegations made against him and stated that the go-down inspected by the supply inspectors did not belong to him. He also stated that no material was recovered from his possession. He further stated that he was falsely implicated in this case, however he had not produced any witness in his defence. 5. After hearing the counsel for the parties and appreciating the entire material available on record, the learned Special Judge, Nainital vide his judgment and order dated 20.06.1988 convicted the appellant under Section 3 read with Section 7 of the Act for violating the provisions of U.P. Foodgrains Dealers (Licensing And Restriction on Hoarding), Order 1976 and sentenced him to 3 months R.I. and fine of Rs.500/- and in default of payment of fine, one month further R.I. was awarded. The appellant was further convicted u/s 3 read with Section 7 of the Act for violating Section 4 of the U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution Order, 1977 and was sentenced to 3 months R.I. and fine of Rs. 500/- and in default of payment of fine, to undergo further R.I. for one month. Both the sentences were directed to run concurrently. Feeling aggrieved by the said judgment and order dated 20.06.1988, the appellant preferred the present appeal. 6. I have heard Sri Siddhartha Sah, learned counsel for the appellant and Sri Harish Pujari, learned Additional Government Advocate for the State and perused the entire material available on record. 7. To prove its case prosecution has examined P.W.1 Sri M.C. Pant, Supply Inspector, who has stated that on 14.09.1982 he was posted as Supply Inspector, Haldwani. On that day, he along with Sri R.P. Pandey, D.S.O., S.I. R.C. Tripathi, Anand Singh Rawat, Devi Ram and with other employees of Supply Department reached at the shop of the appellant at 4:00 P.M. at Lalkuan for inspecting his shop. There they inspected the shop and go-down of the appellant from where they found rice weighing about 18:50 qtls, sugar 1 bag, 10 tins of mustard oil (16 kg. per tin), 10 tins of vegetable oils (16.5 kg. per tin), 4 bags Masur pulse, 2 bags Malka pulse, 1 small bag (katta) Moong pulse weighing 50 kg., 4 bags of iodized salt, 11 bags (each bag 20 kg.) of un-iodized salt. He has also stated that there was no display of price list, stock register, sales register and cash memo with regard to sugar, pulses, flour and rice in the shop and go-down of the appellant. The appellant was neither having any license for keeping 18.50 qtls of rice in 18 bags and one small bag (Katta) nor he produced the same. The appellant was also not having any license for keeping the salt. He has also stated that on the dictation of Sri R.C. Pandey, the Fard of recovery as well as Supurdaginama was prepared by Sri R.C. Tripathi on which he and other witnesses had signed. He also identified the handwriting and signatures of Sri R.P. Pandey and Sri R.C. Tripathi. He also stated that the recovered goods were given in the Supurdgi of Sri Om Prakash and Fard of recovery and Supurdginama was also prepared, i.e. Ex.Ka-1 and the appellant had also signed on it. This witness was cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and trustworthy. 8. P.W.2 is Sri R.C. Tripathi who has stated that on 14.9.1982, he was posted as Supply Inspector in Haldwni. On that day, he along with Sri R.P. Pandey DSO, Sri M.C.Pant S.I., Sri Anand Singh S.I., Devi Ram Arya S.I. and Dev Singh, Peon had gone to Lalkuan and inspected the go-down of the appellant at 4:00 P.M. in the evening. In the shop and go- down of the appellant, there was no display or index list of the articles kept in the shop. Even no stock register, sale register and cash memo was found in his shop. In the go-down of the appellant, 18 bags and one small bag (katta) of rice, 10 tins of vegetable oil, 10 tins of Mustard oil, four bags of iodized salt, 11 bags of non-iodized salt, 4 bags of Malka pulse, 1 bag of Moong pulse, washing clothes soap, Soda and match box etc. were found. The appellant was neither having any licence for keeping foodgrains and salt nor he produced the same. He had prepared the Fard Ex.Ka-1 on the spot on the dictation of Sri R.P. Pandey and thereafter got the signatures of witnesses. The recovered goods were given in the Supurdgi of Sri Om Prakash on the spot and he had written the report of this incident on the dictation of D.S.O. Sri R.P. Pandey and on this report also, D.S.O. Sri R.P. Pandey and other witnesses had signed, that report is Ex.Ka-2. After that he and Sri R.P. Pandey had given this report at P.S. Lalkuan. The appellant had also signed on the document Ex.Ka-1 and he also identified his signatures. This witness was also cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and trustworthy. 9. P.W.3 is S.I. Kripa Ram who has stated that from 14.9.1982 to 14.12.1982, he was posted as S.I. at P.S. Lalkuan. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses and also inspected the spot and prepared the site plan, i.e. Ex.Ka-3. Constable Clerk Madan Narayan, who was posted at P.S. Lalkuan, had prepared the Chik No. 130 of this case, which was marked as Ex.Ka-4 and he also identified his signature. After completing the investigation, he submitted the charge sheet in the court i.e. Ex.Ka-5. 10. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form but he denied the allegations made against him and stated that the godown alleged to have been inspected by the supply inspectors did not belong to him. He also stated that no material was recovered from his possession. He further stated that he was falsely implicated in this case, however he had not produced any witness in his defence. 11. As per the evidence discussed above, it is fully proved that on 14.9.1982 at 4:00 P.M. Sri M.C. Pant, Supply Inspector along with Sri R.C. Tripathi, Supply Inspector, Anand Singh and others inspected the shop of the appellant and his go-down was also inspected. In the inspection, it was found that there was no index list or board showing the name of the firm and the articles stored therein, which could shown that the said go-down was belonging to the appellant. It was also found that in the go-down, 18 bags and one small bag (katta) weighing about 18.50 quintals of rice were found, however the appellant could not produce any valid licence for keeping the foodgrains in his go-down. Furthermore, no stock register, sale register or cash memo was found in the shop or go-down. The appellant was also not having valid licence for keeping salt in his go-down. Further, in the go-down of the appellant, no index list with regard to sugar, pulses, flour and other essential articles was found. When the Supply Inspector asked the appellant for licence, he could not show the valid licence for keeping 18.50 qtls of rice in his go-down. This fact is also proved by the statement of P.W.1 Sri M.C.Pant, Supply Inspector who has stated that on 14.09.1982, he was posted as Supply Inspector, Haldwani. On that day he along with Sri R.P. Pandey, D.S.O., Sri R.C. Tripathi, Anand Singh Rawat, Devi Ram and with other employees of Supply Department reached at the shop of the appellant at 4:00 P.M. at Lalkuan for inspecting his shop. There they inspected the shop and go- down of the appellant from where they found 18.50 qtls of rice in 18 bags and one small bag (katta). However, he had not found display of proce list and any stock register, sale register and cash memo from the go-down and shop of the appellant. The appellant was neither having any license for keeping 18.50 qtls of rice in 18 bags and one small bag (Katta) nor he produced the same. The statement of this witness is also corroborated from the statement of P.W.2 Sri R.C. Tripathi who has stated that on 14.9.1982, he was posted as Supply Inspector in Haldwani. On that day, he along with Sri R.P. Pandey DSO, Sri M.S.Pant S.I., Sri Anand Singh S.I., Devi Ram Arya S.I. and Dev Singh, Peon had gone to Lalkuan and inspected the shop of the appellant at 4:00 P.M. in the evening. In the shop and go-down of the appellant, there was no display or price list on his shop. No stock register, sale register and cash memo was found in his shop. In the shop of the appellant, 18 bags and one small bag (katta) of rice, 10 tins of vegetable oil, 10 tins of Mustard oil, four bags or iodized salt, 11 bags of non-iodized salt, 4 bags of Malka Dal, 1 bag of Moong Dal, washing clothes soap, Soda and match box etc, were found. In this way, the case of the prosecution is fully established from the statement of P.W.1 M.C. Pant, Supply Inspector and P.W.2 R.C. Tripathi, Supply Inspector. Thus, in this way, it is ample clear that the appellant had violated the provisions of U.P. Food Grains Dealers (Licensing & Restriction on Hoarding) Order, 1976 as well as the provisions of Section 4 of U.P. Essential Commodities (Display of Prices & Restriction on Hoarding) Order, 1976 as well as he provisions of Section 4 of U.P. Essential Commodities (Display of Prices & Control of Supply & Distribution) Order, 1977, and as such, he has committed an offence punishable u/s 3 r/w Section 7 of the Act as held by the trial court. 12. Sri Siddhartha Sah, learned counsel for the appellant has fairly submitted that as far as the conviction part is concerned, he does not want to challenge the judgment of the trial court for the conviction of the appellant u/s 3/7 of the Act for violating the U.P. Food Grains dealers (Licensing & Restriction on Hoarding) Order, 1976 and Section 4 of U.P. Essential Commodities (Display of Prices & Control of Supply & Distribution) Order, 1977. He has confined his prayer only to the extent of sentence part. He has submitted that the appellant is an old man and now he is about 57 years of age and he is ailing from various diseases and there is no one to look after his family. He has further submitted that this incident was happened in the year 1982 and now a long period of about 26 years has been expired. He has further submitted that this is the first offence committed by the appellant and considering the fact that the offence committed by the appellant is not heinous crime, he prayed that the sentence awarded to the appellant by the trial court may be set aside and the benefit of first offender under the Probation of Offenders Act, 1958 may be given to the appellant. Sri Harish Pujari, learned Addl. G.A. for the State also conceded for the same. Learned counsel for the appellant in support of his argument cited a judgment of Hon’ble Apex Court in the case of Harivallabha and another v. State of M.P. reported in 2005 SCC (Cri.) 1518. The said judgment is reproduced as under:- “1. Heard learned counsel for the parties 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 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.” 13. After considering all the facts and circumstances of the case and considering the fact that the appellant is an old man of 57 years of age and ailing with various diseases and there is no one to look after his family and the offence was committed 26 years back and also considering the fact that this was the first offence committed by the appellant and the offence committed by the appellant was not a heinous crime, I think it proper and just to give the benefit to the appellant under the Probation of Offenders Act, 1958. 14. For the reasons recorded above and in view of judgment of Hon’ble Apex Court in case of Harivallabha & another (Supra), The appeal is partly allowed. The sentence awarded to the appellant under Section 3 r/w Section 7 of the Act for contravention of U.P. Foodgrains Dealers (Licensing & Restriction on Hoarding) Order, 1976 for three months R.I. as well as under Section 3 r/w Section 7 of the Act for contravention of Section 4 of U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution) Order, 1977 for three months R.I., is hereby set aside. However, it is made clear that the appellant shall deposit the entire amount of fine in the trial court within a month from today. The appellant will be released on his entering a bond with two sureties to the satisfaction of Special Judge/Sessions Judge, Nainital to appear and receive the sentence when called upon during the period of one year and in the meantime to keep the peace and be of god behavior. The appellant shall furnish the bond and the sureties before Special Judge/ Sessions Judge, Nainital within a period of one month from today. (Dharam Veer, J.) Rajeev Dang