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2004 DIGILAW 230 (PNJ)

Virender Kumar v. State of Haryana

2004-02-25

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - The appellant was prosecuted under Section 7(1)(a) of the Essential Commodities Act, 1955 (for short the Act) and was sentenced to undergo rigorous imprisonment for a period of six months and further directed to pay fine in the sum of Rs. 5000/- by the learned Special Judge Faridabad vide order dated 12.2.1998. 2. The facts need not to be referred as the learned counsel for the appellant Shri Mahesh Grover has not challenged the conviction of the appellant on merits. He simply submitted on the quantum of sentence. He has submitted that the case against the appellant was registered on 29.12.1995 and since then he is facing trial. He also submitted that the appellant is the only bread earner in the family and is not a previous convict. The appellant is facing trial since 1995 and has suffered both mentally and financially. He further submitted that the appellant be given the benefit of probation. 3. Shri K.S. Chauhan, DAG, Haryana has not opposed this prayer. 4. I have given my thoughtful consideration to the rival contentions and perused the record. 5. The appellant has been punished after conviction under Section 7(1)(a) of the Act reads 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." x xx xxx" 6. Section 4 of the Probation of Offenders Act, 1958 (for short the "Act") 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. 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 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 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." 7. The Court is empowered under Section 360 Criminal Procedure Code to release the convict on probation that he is not a previous convict and is above the age of 21 years. Section 360 Criminal Procedure Code reads as under :- "360. The Court is empowered under Section 360 Criminal Procedure Code to release the convict on probation that he is not a previous convict and is above the age of 21 years. Section 360 Criminal Procedure Code 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 an offence punishable with fine only or with imprisonment for a term of seven 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 behavious." 8. Section 361 Criminal Procedure Code which relates to special reason to be recorded in certain cases, reads as under : "Where in any case the Court could have dealt with - (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." 9. Before releasing the appellant on probation, it is to be proved that the offender is not a previous convict and also to take into consideration the age, character, antecedents of the offender and the circumstances in which the offence was committed. Before releasing the appellant on probation, it is to be proved that the offender is not a previous convict and also to take into consideration the age, character, antecedents of the offender and the circumstances in which the offence was committed. After considering these factors, if the Court forms an opinion that it will be appropriate to release the offender on probation, then he should have been dealt with either under sub-section (1) of Section 4 of the Probation of Offenders Act, 1958 or under Section 360 of the Code of Criminal Procedure. 10. As per the allegations against the appellant, he was carrying two bags of sugar in a rickshaw but there was no complaint of any consumer that the appellant has not supplied the requisite sugar to the consumer or he has sold the sugar in black-market. So taking into consideration the nature of the offence and also the antecedents and conduct of the appellant, where was not ground for declining the benefit of probation. 11. Accordingly, the conviction of the appellant is maintained. The sentence imposed upon him is set aside. Instead of that, the appellant is order to be released on probation for a period of one year on furnishing a personal bond in the sum of Rs. 10,000/- with one surety of the like amount under section 4(1) of the Probation of Offenders Act. He is directed to keep peace and be of good behaviour during this period. The appellant is further directed to pay Rs. 5000/- as litigation costs. With this modification in the sentence, the appeal fails and is dismissed. Appeal dismissed.