IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.353 OF 2001 (OLD NO.2273 OF 1986) Munshi Ahmad S/o Jura Sheikh, R/o Mailgaon, District Pauri Garhwal. …….Appellant Versus The State ……. Opp. Party. Dated: November 26, 2007 Sri L.K. Tiwari, learened counsel for the appellant. Sri Harish Pujari, learned Addl. GA for the State/Opp. Party. 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 04.08.1986 passed by Special Judge (Sessions Judge) Pauri Garhwal in Special Criminal Case No.2/1986, State Vs. Munshi Ahamad, whereby the appellant has been convicted under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as an Act) for contravention of Section 2(g) of U.P. Oil Seeds and Oil Seeds Products Control Order, 1966 and sentenced to 3 months R.I. and fine of Rs.1000/- 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 contravention of Section 2(c) of U.P. Foodgrains Dealers (Licensing and Restriction of Hoarding) Order, 1976 and was sentenced to 3 months R.I. and fine of Rs.1000/- and in default of payment of fine, to undergo further R.I. for one month. Both the sentences were directed to run concurrently. 2. In brief, the prosecution case is that appellant Munshi Ahmad was having a Parchoon Shop at Kaljikhal, Patti Patwalsyun. On 10th July, 1985 at about 1:30 P.M. Sri D.P. Badola, Supply Inspector along with Sri Amal Singh Negi, Supply Inspector under the directions of District Supply Officer, Pauri Garhwal inspected the Shop of appellant Munshi Ahmad. At that time, he was accompanied with Prithawi Singh and Madan Singh. Later on, Regional Food Inspector Ashutosh Chandola also joined him. In the inspection, it was found that 9 full bags and an open bag of wheat, total 9.60 quintals in weight, 9 full bags and an open bag of wheat flour, total 8.90 quintals in weight, one open bag of Maida, 40 Kgs in weight, 9 full bags and 2 open bags of common rice, total 10.10 quintals in weight, 11 Kattas of fine variety of rice, total 3.30 quintals in weight and 48 sealed tins and three open tins of mustard and vegetable oil, 7.42 quintals in weight. The appellant could not produce valid dealers licencse to store for sale wheat and wheat products and rice more than 10 quintals each in weight and edible oil more than 5 quintals in weight. Thereby, a case of breach of control orders punishable under the aforesaid Act was made out. The inspecting party seized the recovered wheat and wheat products, rice and edible oil and given the goods in the custody of Prithwi Singh as Supurdar (who maintained the register of articles). With the same averments, Sri D.P. Badola, Supply Inspector gave the written report, i.e. Ex.Ka-3. A recovery memo for taking the above-said articles into possession was prepared on the spot and the composite Fards were prepared i.e. Ex.Ka.1 and Ex.Ka.2. On the basis of this report, a Chik F.I.R. was prepared by Sri Prem Singh Gusai, Patwari Patwalsyun II, i.e. Ex.Ka.4. During the course of the investigation, the Patwari/Investigating Officer inspected the place of occurrence and prepared the site plan i.e. Ex.Ka.5. (In the rural hill areas of State of Uttarakhand), the Patwaris are being vested with Police powers). The Patwari also obtained the sanction for the prosecution of the case from the District Magistrate, Garhwal on 25.10.1985, that sanction is Ex.Ka.6. During the course of the investigation, the Patwari recorded the statements of the witnesses and after completing the investigation, he has submitted the charge sheet against the appellant on 05.01.1986 i.e. Ex.Ka.8. 3. Thereafter, the statement of the appellant/accused was recorded on 27.5.1986. 4. The prosecution in order to prove its case got examined P.W.1 D.P. Badola, Supply Inspector, P.W.2 Prem Singh, Patwari/Investigating Officer, P.W.3 Bihari Lal, Judicial Assistant in Collectorate, Pauri and P.W.4 Rajendra Singh, who was also the Investigating Officer of the case. 5. Thereafter, the statement of the appellant was recorded u/s 313 Cr.P.C. He has denied the quantity of the items recovered from his shop. He has stated that later on his signatures were taken and a copy of Fard was given to him. At the time of inspection he was having 4-5 bags of wheat, 4 bags of wheat flour and 6 bags of rice. The appellant in support of his case produced D.W.1 Sri Ashutosh Chandola as defence witness. 6. After hearing the counsel for the parties and appreciating the entire material available on record, the learned Special Judge (Sessions Judge, Pauri Garhwal) vide his judgment and order dated 4.08.1986 convicted the appellant u/s 3 read with Section 7 of the Act for contravention of Section 2(g) of U.P. Oil Seeds and Oil Seeds Products Control Order, 1966 and sentenced to 3 months R.I. and fine of Rs.1000/- 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 contravention of Section 2(c) of U.P. Foodgrains Dealers (Licensing and Restriction of Hoarding) Order 1976, and was sentenced to 3 months R.I. and fine of Rs.1000/-and in default of payment of fine, to undergo further R.I. for one month. Feeling aggrieved by the said judgment and order dated 4.8.1986, the appellant has preferred the present appeal. 7. I have heard Sri L.K. Tiwari, learned counsel for the appellant and Sri Harish Pujari, learned Addl. GA for the State and perused the entire material available on record. 8. The prosecution in order to prove its case, examined P.W.1 Sri D.P. Badola, Supply Inspector, who has stated in his statement that in July 1985 he was posted as Supply Inspector. On 10.07.1985 at about 1:30 P.M. he inspected the shop of appellant Munshi Ahmad. At the time of the inspection he was accompanying with Amal Singh Negi, Supply Inspector and Sri Chandola, Regional Inspector as well as public witnesses namely Sri Madan Singh, Dhan Bahadur and Sri Prithwi Singh were there. The appellant was also called in shop at that time. At the time of the inspection, from the shop of the appellant 9 quintal 60 Kilogram wheat, 40 Kilogram Maida, 8 quintal and 90 Kilogram wheat flour, 10 quintal 10 Kilogram common rice, 3 quintal 30 Kilogram refined rice, 7 quintal 42 Kilogram edible oils were found. When the license of the above said articles was asked from the appellant, neither he could produced the license nor he could produced any stock register. For the recovered articles, a Fard was prepared on the spot and he had signed on it, i.e. Ex.Ka.1. The recovered articles were given in the Supurdagi of Sri Prithwi Singh and the entry of the recovered articles also made in the back of Ex.Ka-1, i.e. Ex.Ka.2. He has given the written report of this incident to Tehsildar Pauri because at that time he could not found the Patwari and Kanoongo, that report is Ex.Ka.3. He has taken three specimens of the recovered articles and sealed them and prepared specimen of seal. The recovered articles were auctioned as per the directions of District Magistrate by Sri Mangal Singh Pundir, Regional Supply Officer on 11.12.1985 and the amount of auction was received as Rs.15,138.50 and that was deposited in the Government Treasury. He has also submitted the concerned documents which were in the departmental file. This witness was cross examined at length but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and believable. 9. P.W.2 is Prem Singh, Patwari, who has stated in his statement that in July 1985 he was posted as Patwari in Patti Circle, Patwalsyue II. He has further stated that Kaljikhan was in that circle and the appellant was having a shop of daily needs (Parchoon) and other articles in Kaljikhan. The report dated 10.07.1985 i.e. Ex.Ka.3, was given to him on 12.07.1985 and on the basis of that report, he prepared the Chik F.I.R. i.e. Ex.Ka.4. The entry of the same was also made by him in the G.D. Thereafter, he reached on the place of the occurrence and prepared the site plan of the place of occurrence, i.e. Ex.Ka.5. On the same day, the statement of the servant of appellant namely Madan Singh was recorded. On 15.07.1985 he recorded the statement of Supurdar Prithawi Singh and also inspected the recovered articles, however he could not find the appellant on that day. On 22.07.1985 the statement of Regional Supply Inspector, Ashutosh Chandola was recorded. On 28.07.1985, the appellant was arrested by him and interrogation was also done. Thereafter, he was transferred and the investigation of the case was entrusted to Sri Rajendra Singh Negi. He has also stated that he (Rajendra Singh Negi) recorded the statement of D.P. Badola, Supply Inspector and after obtaining the sanction for prosecution of the appellant from the District Magistrate, Pauri, he submitted the charge sheet in the court. 10. P.W.3 is Bihari Lal, who has stated in his statement that in the year 1985 he was posted as Judicial Assistant in District Collectorate and on those days Sri Mohmad Halim Khan was the District Magistrate, Pauri. On 15.09.1985. the District Magistrate went for the training at Nainital and in his absence, the charge was given to Sri Khadag Singh Dariyal, A.D.M. Pauri. On 25.10.1985 also, Sri Khadag Singh Dariyal was officiating as District Magistrate, Pauri. He identified the signatures of Sri Khadag Singh on letter no.27-K and he has also identified his signatures on that sanction letter, i.e. Ex.Ka.6. This witness was also cross examined at length but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable, believable and trustworthy. 11. P.W.4 is Sri Rajendra Singh, who has stated in his statement that on 28.07.1985 he was posted as Patwari. The investigation of the case was pending on that day and during the course of investigation on 17.8.1985 he recorded the statements of Digamber Prasad Badola and Amal Singh Negi. On the same day, he moved an application for sanction of prosecution against the appellant. The entire file regarding this case was sent to District Magistrate and on 25.10.1985, District Magistrate had given the sanction for prosecution i.e. Ex.Ka.6. After that on 05.01.1986 he submitted the charge sheet in the Court i.e. Ex.Ka.8. 12. Thereafter, the statement of the appellant was recorded u/s 313 Cr.P.C. He has denied the quantity of the items recovered from his shop. He has stated that later on his signatures were taken and a copy of Fard was given to him. He has also stated that at the time of inspection, he was having 4-5 bags of wheat, 4 bags of wheat flour and 6 bags of rice. In support of his case, he produced Sri Ashutosh Chandola as D.W.1, who has stated in his evidence that in July, 1985 he was posted as Regional Food Inspector. On 10.07.1985, the shop of the appellant Munshi Ahmad was inspected and the inspection was properly done. He has also submitted that the inspection was not conducted before him. Sri D.P. Badola and Amar Singh, Supply Inspectors had conducted the inspection. Thereafter, he was called from the meeting on the shop of the appellant for giving his evidence. Appellant Munshi Ahmad also came in his shop from the meeting. He enquired that whether the goods were weighed or not, however, no reply was given to him. Thereafter, the District Supply Officer came in the market and after that he went with him. Thereafter, Sri Badola returned back after giving Supurdagi of the recovered articles. 13. For the reasons discussed above, it is fully proved that on 10th July, 1985 at about 1:30 P.M. Sri D.P. Badola, Supply Inspector along with Sri Amal Singh Negi, Supply Inspector under the directions of District Supply Officer, Pauri Garhwal inspected the Shop of appellant Munshi Ahmad. At that time, he was accompanied with Prithawi Singh and Madan Singh. Later on, Regional Food Inspector Ashutosh Chandola also joined him. In the inspection, it was found that 9 full bags and an open bag of wheat, total 9.60 quintals in weight, 9 full bags and an open bag of wheat flour, total 8.90 quintals in weight, one open bag of Maida, 40 Kgs in weight, 9 full bags and 2 open bags of common rice, total 10.10 quintals in weight, 11 Kattas of fine variety of rice, total 3.30 quintals in weight and 48 sealed tins and three open tins of mustard and vegetable oil, 7.42 quintals in weight. The appellant could not produce valid dealers license to store for sale wheat and wheat products and rice more than 10 quintals each in weight and edible oil more than 5 quintals in weight. This fact is also proved by the statement of P.W.1 Sri D.P. Badola, Supply Inspector who has stated in his evidence that on 10.07.1985 at about 1:30 P.M. he inspected the shop of appellant Munshi Ahmad. At the time of the inspection he was accompanying with Amal Singh Negi, Supply Inspector and Sri Chandola, Regional Inspector as well as public witnesses namely Sri Madan Singh, Dhan Bahadur and Sri Prithwi Singh were there. The appellant was also called in shop at that time. At the time of the inspection, from the shop of the appellant 9 quintal 60 Kilogram wheat, 40 Kilogram Maida, 8 quintal and 90 Kilogram wheat floor, 10 quintal 10 Kilogram common rice, 3 quintal 30 Kilogram refined rice, 7 quintal 42 Kilogram edible oils were found. When the license of the above said articles was asked from the appellant, neither he could produced the license nor he could produced any stock register. The statement of P.W.1 Sri D.P. Badola is reliable, believable and trustworthy and there is no ground to disbelieve his testimony. Thus, in this way, it is fully established that the appellant committed breach of Section 2(g) of U.P. Oil Seeds and Oil Seed Products Control Order, 1966 as well as Section 2(c) of U.P. Food Grains Dealers (Licensing & Restriction on Hoarding) Order, 1976 and thus, he has committed an offence punishable u/s 3 r/w Section 7 of the Act as held by the trial court. 14. Sri L.K. Tiwari, 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 contravention of Section 2(g) of U.P. Oil Seeds and Oil Seed Products Control Order, 1966 and Section 2(c) of U.P. Food Grains Dealers (Licensing & Restriction on Hoarding) Order, 1976. He has confined his prayer only to the extent of sentence part. He has submitted that the appellant is a married man and now he is about 56 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 1985 and now a long period of 22 years has been elapsed. 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 a heinous crime, he prayed that the sentence awarded to the appellant i.e. three months R.I. and to pay a fine of Rs.1,000/- and in default of payment of fine, one month further R.I. under Section 3 r/w Section 7 of the Act for contravention of Section 2(g) of U.P. Oil Seeds and Oil Seed Products Control Order, 1966 as well as for three months R.I. and to pay a fine of Rs.1,000/- and in default of payment of fine, one month further R.I. under Section 3 r/w Section 7 of the Act for contravention of Section 2(c) of U.P. Food Grains Dealers (Licensing & Restriction on Hoarding) Order, 1976, 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 is 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. He relied on para 3 which reads as under: - 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.” 15. After considering all the facts and circumstances of the case and considering the fact that the appellant is an old man of 56 years of age and ailing with various diseases and there is no one to look after his family and the offence was committed 22 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. 16. 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 Section 2(g) of U.P. Oil Seeds and Oil Seed Products Control Order, 1966 for three months R.I. and to pay a fine of Rs.1,000/- and in default of payment of fine, one month further R.I. as well as under Section 3 r/w Section 7 of the Act for contravention of Section 2(c) of U.P. Food Grains Dealers (Licensing & Restriction on Hoarding) Order, 1976 for three months R.I. and to pay a fine of Rs.1,000/- and in default of payment of fine, one month further R.I., is hereby set aside. The appellant will be released on his entering a bond with two sureties to the satisfaction of Special Judge (Sessions Judge) Pauri Garhwal, 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 good behaviour. The appellant shall furnish the bond and the sureties before Special Judge (Sessions Judge), Pauri Garhwal within a period of one month from today. Rajeev Dang (Dharam Veer, J.)