CRA No.129-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.129-SB of 2000 Date of Decision: July 6, 2010 Vipan Kumar .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. H S Gill, Sr. Advocate, with Mr. Manuj Nagrath, Advocate, for the appellant. Mr. J S Bhullar, AAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The present appeal has been preferred by the appellant, namely, Vipan Kumar, challenging the judgment dated 29.1.2000 passed by the Special Judge, Faridkot, convicting the accused (herein appellant) for committing offence under Section 7 of the Essential Commodities Act and sentencing him to rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for one month. 2. The brief facts of the present case, as set up by the prosecution, are that on 20.8.1990, Sadhu Ram, Inspector, the then SHO, Police Station, CRA No.129-SB of 2000 -2- City Kotkapura, received a secret information to the effect that the accused was storing kerosene oil, diesel and petrol, without any licence, in the residential building on one Pappu, situated on Kothe Bahman Wala road, which was with him on rent, the same could be recovered by conducting a raid. On the basis of said information, Sadhu Ram, Inspector, recorded formal FIR (Ex.PE) and organized a raid party and also joined Mangat Ram Chopra (PW-3), in the said raiding party. Accordingly, raid was conducted in the presence of Mangat Ram and other members of the raiding party at the premises of Vipan Kumar, accused where he was found present. During the raid, 11 drums (barrels) containing kerosene oil out of which, each contained 200 litres of kerosene oil were recovered. Besides this, 18 empty barrels were also lying in the premises which were giving a smell of kerosene oil, diesel and petrol. One pipe fitted with Pakha for the purpose of taking out kerosene oil, petrol, etc. from the barrel was also recovered. A quantity of 750 mls. each of the drum (barrel) was taken out to convert the same into samples and the same were kept in different bottles and the remaining material was kept intact in the respective barrels. The respective barrels which were sealed by Sadhu Ram, Inspector, bearing impression 'SRS'. These drums and the empty drums were taken into possession vide Ex.P1 to P29, pipe and pakha were taken into possession vide Ex.P30 and P31, respectively. The samples were taken into possession vide memo Ex.PD attested by Mangat Ram, Inspector and Karaj Singh, HC. After use, seal was handed over to Mangat Ram, Inspector. During raid, the accused- appellant could not produce any licence or permit for keeping the said barrels in his possession. 3. The accused was arrested. Statements of witnesses were recorded CRA No.129-SB of 2000 -3- and the matter was investigated. Rough site plan (Ex.PF) in respect of the place of recovery was prepared. Case property was deposited with MHC by Sadhu Ram, Inspector. Samples were sent to the laboratory. Challan was presented against the accused and charge under Section 7 of the Essential Commodities Act was framed against the accused to which the accused pleaded no guilty and claimed trial. 4. In order to substantiate the charge against the accused, the prosecution examined as many as 4 witnesses, namely, Sarbjit Singh, Inspector, Food and Supplies, Gr.II, Faridkot-PW1; Kansa Singh son of Banta Singh-PW2; Mangat Ram Chopra, Inspector-PW3 and Sadhu Ram, Inspector (Retired)-PW4 and also tendered in evidence two documents namely, Mark 'X' and Mark 'Y'. 5. In the statement under Section 313, Cr.P.C., the accused denied all the allegations of the prosecution case and circumstances appearing in evidence against him and pleaded false implication in the case on account of some misguided suspicion and due to the altercation having taken place between him and the officials. In defence, the accused examined Walaiti Ram son of Bhag Mal as DW1. The learned trial Court, after hearing both the parties, convicted the accused-appellant under Section 7 of the Essential Commodities Act and sentenced him for the term as indicated in para 1 of this judgment, vide judgment and order dated 29.1.2000, aggrieved from which, the present criminal appeal is preferred. 6. The learned counsel for the appellant does not challenge the judgment/order of the trial Court on merits. He confines his prayer to the quantum of sentence in view of the fact that the appellant is more than 65 years of age and remained in custody for about a month and has suffered CRA No.129-SB of 2000 -4- trial for about 20 years. The appellant is not a previous convict. His conduct remained good during the pendency of the present appeal. In the circumstances, he has prayed that his case may be considered for grant of probation. 7. On the other hand, learned counsel for the State has submitted that the appellant had been selling kerosene oil, petrol and diesel without licence and a linient view has already been taken by the learned trial Court and, therefore, the appeal deserves to be dismissed and the order passed by the learned trial Court is liable to be maintained. 8. The penalties provided under Section 7(1)(a) of the Essential Commodities Act for contravention of an order made under Section 3 thereof are as under:- “7. Penalties – (1) if any person contravenes any order made under Section 3. - (a) he shall be punishable. - (i)in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii)in the case of any other order, with imprisonment for a term shall not be less than three months but which may extend to seven years and shall also be liable to fine : Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of CRA No.129-SB of 2000 -5- imprisonment for a term of less than three months.” 9. Section 4 of the Probation of Offenders Act, 1958, empowers the Court to release the convict person on his entering into a bond when a person has not been convicted for an offence punishable with death or imprisonment for life. Sub-section (1) of Section 4 of the Act reads as under: "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 no punishable with death or imprisonment for life and the Court which the person is found guilty is of the opinion that, having regarding 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 no direct such release of an offender unless it is satisfied that the offender or his surety, if 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 CRA No.129-SB of 2000 -6- enters into the bond. 10. The Court is empowered under Section 360 Cr.P.C. to release the convict on probation if he is not a previous convict and is above the age of 21 years. Section 360 Cr.P.C. reads as under:- “360. Order to release on probation of good conduct or after admonition:- (1) When any person not under twenty one years of age is convicted of any offence punishable with fine only or with imprisonment for a term of sever years or less, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct, 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 behaviours. 11. Section 361 Cr.P.C. which relates to special reason to be recorded in certain cases, reads as under : “Where in any case the Court could have dealt with - CRA No.129-SB of 2000 -7- (a) an accused person under Section 360 or under the provisions of the probation of Offenders Act, 1958 or (b) a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.” 12. I have heard learned counsel for the parties and perused the record. 13. The FIR in the instant case was registered on 20.08.1990. The appellant has undergone imprisonment for about one month out of total sentence of six months awarded to him. The appellant is not a previous convict. There is nothing on record to suggest that the appellant misused the concession of bail. He has suffered long and protracted trial for about 20 years. 14. In the circumstances as mentioned above, it would be just, fair and appropriate that the appellant is ordered to be released on probation. Consequently, the appellant, on his furnishing bonds for a sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Faridkot, undertaking to maintain to maintain peace and to be of good behaviour and to receive the remaining sentence as and when called for to do so, within a period of one year, shall be released on probation. CRA No.129-SB of 2000 -8- 15. Resultantly, with the modification indicated above regarding the release of the appellant on probation, the appeal stands disposed of. ( JITENDRA CHAUHAN ) July 6, 2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No