Single Bench: Hon’ble Shri Justice Radhe Shyam Sharma Appellant Shriram, S/o Durga Prasad Agrawal, aged 30 years, R/o Manendragarh, Police Station Manendragarh, Respondent V‘ Present Dr N KShukla SeniorAdvocate With Smt A Sengupta counsel for the appellant Shn Ajay DWIvedI, Deputy Government Advocate for State/respondent. District Surguja State of Madhya Pradesh (now State of Chhattisgarh) through Police Station Hirri, District Bilaspur (Delivered on .2? November, 201 1) Criminal Case No.3/1985. _\ \N three months. HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.28 of 1996 Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT @J the This appeal is directed against judgment dated 27-12-1995, passed by the Special Judge (Sessions Judge), Bilaspur in Special By the impégigned judgment, accused/appellant Shriram has been convicted under Sections 3/7 of the Essential Commodities Act (henceforth ‘the Act’) read with Clause 3(3) of the Madhya Pradesh Rice Procurement (Levy) Order, 1970 (henceforth ‘the Order, 1970’) and sentenced to undergo rigorous imprisonment for three’ months and to pay fine of Rs.5,000/-, in default thereof, to undergo additional imprisonment for \ \A/G 2 2. Case of the prosecution, in brief, is as under: On 8-9-1984, accused Bhuneshwar Prasad was taking 110 begs of rice in a truck bearing registration No.MBA 9606. The rice Was belonging to accused/appeliant Shriram and it was being carried in the truck from Nevra, District Raipur to Pendra, District Btiiaspur without bill, transportation permit and N.O.C. At that time, agccused Anand was sitting in the truck. The truck was stopped and r checked by R.T.l. Upendra Singh Parihar (PW-8) near Village Chandrakhuri, Police Station Hirri, District Bilaspur. During the check, no paper, like a bill was submitted regarding transportation of the rice. No N.O.C. was submitted regarding payment of Ievy for the rice too. Therefore, the truck loaded with the rice was taken by Upendra Singh Parihar (PW—8) to Police Station Hirri and a written report (EXP-14) was Iodged by him in the Police Station. On the written report, First Information Report (Ex.P-14A) was lodged in the police station. i During investigation, seizure of the truck loaded with the rice was made. Samples of 150 grams of Safari rice and 50 grams of Mota rice were taken and seized. Levy—Register, Bill-Book and Milling—Register were also seized. N.O.C., required for transportation of rice from one district to another district, under Section 3 of the Order, 1970, was not found. Violation of Clause 3(1)(2) of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1965 was also found in regard to'purchase, sale and collection of tam ‘ -~»\. rice without bill. \\ _\ l l @ After completion of the investigation, charge sheet was tiled against the accused persons including appeiiant Shriram in the :Court of Special Judge (Sessions Judge), Biiaspur on 11-2-1985, iwho conducted the trial, convicted and sentenced accuseH/appeilant Shriram as mentioned above. The other accused person iBhuneshwar Prasad has been convicted under Section 8 of the Act ‘and sentenced to 5 days’ rigorous imprisonment, i.e., the period taiready undergone by him and to pay fine of Rs.2,000/—, in default thereof, to further undergo imprisonment for two months. The accused Anand has been acquitted of the charges framed against him? Against the judgment of conviction and se‘ht’en’ce, appellant Shriram is in appeal before this Court. 3 3. Dr. N.K.Shukia, learned Senior Advocate with Smt. A. Sengupta, learned counsel for the appellant argued that the learned Special Judge erred in holding the appellant guilty of offence under Clause 3 of the Order, 1970 as the rice was procured from outsidelof State of Madhya Pradesh. He submitted that the learned Special Judge erred in holding that the appellant committed offence under Sections 3/7 of the Act. The learned Special Judge wrongly ‘v’!~ disbelieved the version of the defence. The learned Special Judge has wrongly disbelieved the declaration form (Ex.D-1) and bill (Ex.D- 2). From the documents Ex.D-1 and D-2, it is proved that the rice was being carried from Gondia after its purchase thereat. The evidence of prosecution'witnesses are full of contradictions. The prosecution has not been able to make out any offence against the @3 appellant. Therefore, the appellant deserves to be acquitted of the charges framed against him. 4 i4. On the other hand, Shri Ajay Dwivedi, learned Deputy iGovernment Advocate for the State/respondent, supporting the impugned l judgment, submitted that the conviction and sentence lawarded to the appellant does not warrant any interference by this ;Court. ‘5‘” i have heard learned counsel appearing for the parties at length and have perused the record with utmost circumspection. § u 6. Upendra‘Singh Parihar (PW-8) deposed that on 8-9—1984, he was posted as R.T.l. at'Bilaspur. On that date, when he was checking vehicles in Chandrakhuri, he stopped a truck bearing registration No.MBA 9606, being driven by Bhuneshwar Prasad, son of Chhedilal, resident of Kotma, from Nevra to Pendra, whose proprietor was one Ghanshyamdas, son of Bhagwandas, resident of Chandiya. Since rice was being carried in the truck without any permit and the driver of the truck could not show him any permit for transportation of the rice in the truck, he took thezg‘fruck along with the driver to Police Station Hirri and submitted a written report (Ex.P-14) to the Station House Officer of the police station. 7. Ramnarayan Singh (PW-5) deposed that on 8-9-1984, he was posted as Assistant‘Subelnspector in Police Station Hirri. On that date, R.T.l. Parihar (PW-8) had taken a truck loaded with rice to the police station, which he had seized. Thereafter, he had recorded Rojnamcha Sanha No.249 in the police station, whose true copy is x @ 5 EXP—13. Thereafter, on the basis of written report (EXP-14) of R.T.l. Upendra Singh Parihar (PW-8), he had registered First l;nformation Report (Ex.P-14A) in the poiice station. ‘G 8. J.K.Shukia (PW-3) deposed that on 8-9-1984, he was posted as Sales Tax Omcer at Chichola Check-Post. Entries regarding i passing of trucks loaded with goods from the said check-post were made in the register of the check-post. The check-post was relating to sales-tax. In addition to trucks, if any other vehicle loaded with V s excessive goods passes through the check-post, entries thereof were also made in the register of the check-post. A requisition § (EXP—4) was received in the Chichola Office from Police Station Hirri seeking report regarding truck bearing registration No.MBA 9606. After checking the register of the check-post, he had sent a report (Ex.P-5) to Station House Officer, Police Station Hirri to the effect that truck bearing registration No.MBA 9606 was not found to be passing from Gondia to Manendragarh between 5-9-1984 to 8—9- 1984. u 9. M.C.Soni (PW—7) deposed that on 30-3—1985, he was posted 8 as Assistant Grade—l in Food Branch of the Collegtorate at Bilaspur. He further deposed that Firm Ramsevak Durgaprasad, Manendragarh had filed an application for supurdginama of the truck bearing registration No.MBA 9606 and rice which was loaded in the said truck. The Collectgr, Bilaspur had ordered for giving the rice loaded in the said truck to the appellant on supurdginama on his submitting a bank guarantee for Rs.25,300/— therefor. x 6 10. The Iearned Special Judge observed in paragraph 15 of the impugned judgment that from the evidence of J.K.Shukla (PW-3) ahd his report (EXP-5), it is proved that on the fateful day, the seized truck bearing registration No.MBA 9606 Ioaded with rice did not pass from Gondia to Manendragarh through Chichola Check-Post. In the circumstance, it was assumed that the accused was intended to c‘ommit the crime and against this assumption he did not adduce any reliabie oral or documentary evidence, on the basis of which, the seaiappearing on the documents Ex.D-1 and D—2 could be relied to be affixed by Chichola Check-Post and further that actually the rice was durchased‘at Gondia and was being carried toéManendragarh. In support of the bill (Ex.D-2), bill-book and other relevant documents of the concerned dealer could be submitted and it could be proved that actually the seized rice was purchased at Gondia and was being carried to Manendragarh. Hence, the documents Ex.D-1 and D—2, which do not contain signature of any officer of Chichola Check-Post indicating that the truck passed through Chichola Check-Post, could be prepared at any time and the seal affixed thereon could be affixed after getting a seal prepared from any seal- 8 maker. Therefore, it is not proved that the sealéraffixed on those documents was affixed by Chichola Check—Post and the accused persons have failed to prove that they had purchased the rice at Gondia and were carrying the same to Manendragarh. 11. The Iearned Special Judge ebserved in paragraph 13 of the impugned judgment that no witness has been examined by the accused persons in their defence regarding affixing of seal on the \ \ \ \ _, \ f gg 7 documents Ex.D—1 and D-2. The driver of the seized truck Bhuneshwar Prasad has also not been examined, who was an important witness in this regard. Cleaner of the truck has also not been examined. An accused can be examined in his defehce under Section 315 Cr.P.C. Tekchand Sharma (DW—1) deposed that he did rjiot know that when, by whom and in what context the documents Ex.D-1 i and D-2 were written. The defence has not examined the concerned merchant issuing 'the bill (Ex.D-2) nor for proving truthfulness of the bill (Ex.D-2) its carbon copy or any relevant document maintained by the concerned merchant has been submitted. ~ 12. The learned Special Judge, after appreciation of the entire evidence available on record, held the appellant guilty under Sections 3/7 of the Essential Commodities Act read with Clause 3(3) of the Madhya Pradesh Rice Procurement (Levy) Order, 1970. 13. After perusal of paragraphs 13 and‘ 15 of the impugned judgment and evidence available on record, i am of the considered view that the learned Special Judge has rightly held that the 6 appellant clearly violated Clause 3(3) of the Madhya Pradesh Rice Procurement (Levy) Order, 1970, therefore, the appellant is guilty under Section 3 read with Section 7 of the Essential Commodities Act. Th’evconviction recorded by the learned Special Judge does not warrant any interference'by this Court. 14. a Relevant provisions of Section 7 of the Essential Commodities Act read thus: \ 8 “7. Penalties—(1) If any person contravenes any order made under Section 3:— (a) he shall be punishable— i a) xxxxx xxxxx xxxxx (ii) in the case of any other order,.\?vith imprisonment for a term which shall not be Iess 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 imprisonment ~ for a term of less than three months;” .u £ 15. In Rameshchandra and another vs. State of M.P., 1991 Cri.L.J. 50, High Court of Madhya Pradesh awarded sentence till rising of the Court and tine of Rs.2,000/- was imposed. 16. In Surendranath Subudhi vs. State of Orissa, 2005 Cri.L.J. 3367, Orissa High Court, instead of sentencing the accused- released him under Section 4 of the Probation of Offenders Act, 1958. a 17. In Narayandas vs. State of M.P., 1988-II MPWN Note 66, High Court of Madhya Pradesh, instead of sentencing the accused released him under Section 4 of the Probation of Offenders Act, 1958. tax ‘ 18. In the instant case, the challa'n was filed on 11-2-1985. The " impugned judgment was delivered by the learned Special Judge on 27-12-1995. The appeal is pending before this Court since 4—1- @ 9 1996. The case is pending for more than 25 years. Therefore, i see no reason to hold that the appellant would be disentitled of the benefit of the Probation of Offenders Act only because minimum sentence of imprisonment has been prescribed for an offe‘hce under Section 7 of the Essential Commodities Act. l am of the view that no fruitful purpose would be achieved by sentencing the appellant to Suffer the sentence of imprisonment awarded by the trial Court. i am informed that the appellant has already paid the amount of fine imposed by the trial Court. Under such circumstances, it is a fit case where the appellant should be released on probation of good conduct underSection 4 of the Probation of Offenders Act. 19. In the result, the appeal is partly allowed. The conviction of the appellant under Sections 3/7 of the Essential Commodities Act read with Clause 3(3) of the Madhya Pradesh Rice Procurement (Levy) Order, 1970 is affirmed, but his sentence of imprisonment is set aside and he is directed to be released on probation of good conduct on his entering into a bond of Rs.5,000/- with two sureties each for the like amount to appear and receive the sentence when called upon during such period and in the meamime to keep the peace and be of good conduct for two years. />/“’ sal- ‘ RS. Sharma / z Gopal . Judge