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2004 DIGILAW 46 (PNJ)

Radhey Sham v. State Of Haryana

2004-01-14

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. This appeal has been filed against the judgment and order dated 5/12/1994 passed by the learned Presiding Officer Special court, Hissar, whereby the appellant has been convicted to rigorous imprisonment for one year and also ordered to pay a fine of Rs.1,000.00 and in default of payment of fine to undergo further rigorous imprisonment for three months for having committed an offence under Sec.7 of the essential Commodities Act, 1955 (Act, for short ). 2. Case FIR No.221 dated 22/6/1989 (Ex. PD/1) was registered at police Station City Hissar against the appellant for the commission of offence under Sec.7 of the Act on the application submitted by singhram, Inspector, Food and Supplies Department, Hissar on 22/6/1989. It is alleged that the firm M/s. Radhey Sham Ram Avtar, Booth No.63, new Grain Market, Hissar had no licence under the Haryana Food Articles (Licensing and Price Control) Order, 1985 (control Order, for short ). The said firm had carried out business of purchasing of rice (jiri) as well. In this regard, the firm had produced Form ST-15 but the said firm had never submitted any return in the office of the Food and Supply Department, hissar. In this manner the aforesaid firm had carried out the business of trading in rice without obtaining any licence, as was required under the control Order. Therefore, it was requested that the necessary action be taken against the firm. 3. On receipt of the aforesaid information, it was observed by the police that a prima facie case under Sec.7 of the Act is found to be made out against the accused. Accordingly a case was registered under the aforesaid Sec.7 of the Act. The police investigated the case and the accused was arrested in the case on 23/6/1989. Thereafter challan in terms of Sec.173 of the Code of Criminal Procedure (Cr. P. C. , for short) was filed before the Presiding Officer, Special Court, Hissar on 30/7/1990. Accordingly a case was registered under the aforesaid Sec.7 of the Act. The police investigated the case and the accused was arrested in the case on 23/6/1989. Thereafter challan in terms of Sec.173 of the Code of Criminal Procedure (Cr. P. C. , for short) was filed before the Presiding Officer, Special Court, Hissar on 30/7/1990. The said Court on 8/1/1991 issued a show cause notice to Radhey Sham accused (appellant), which is to the effect that during the period from November 1987 to October 1988 in the area of Hissar his (appellants) firm through him as its sole proprietor as well as he in his individual capacity carried on the business as a dealer by purchasing and selling paddy with various firms without obtaining licence in contravention of clause 3 of the Control order, which is punishable under Sec.7 of the Act. Accordingly the appellant was required to show cause as to why action be not taken against him for contravention of the aforesaid provisions of law. The show cause notice was read over and explained to the accused (appellant) in simple hindi. A copy of the same was also given to him free of costs. The appellant did not accept the allegations as made in the show cause notice given to him and claimed trial. 4. The prosecution in order to prove its case examined as many as thirteen witnesses and also tendered documents in evidence. After the evidence of the prosecution was closed the statement of the accused in terms of Sec.313 of the Cr. P. C. was recorded in which he stated that he was innocent and he had been falsely implicated in the case. He did not deal in the sale and purchase of paddy and did not make any payment to the firm as mentioned for the purchase of paddy. Form ST-15, it is stated, were given under the hope that he would get a licence which had been applied for. He could not get any licence and the ST-15 forms were mis-utilised by the aforesaid firm. He had not filed any return because the licence was not issued to him. 5. Form ST-15, it is stated, were given under the hope that he would get a licence which had been applied for. He could not get any licence and the ST-15 forms were mis-utilised by the aforesaid firm. He had not filed any return because the licence was not issued to him. 5. On the basis of the evidence and material on record, the learned presiding Officer, Special Court, after considering the evidence and material on record convicted the appellant in terms of his order dated 2/12/2004 and sentenced him on 5/12/1994 to undergo imprisonment for one year with a fine of Rs.1,000.00 and in default of payment of fine to further undergo rigorous imprisonment for three months for contravening the provisions of Clause 3 of the Control Order punishable under Section 7 of the Act. It is against the said order above, that the present appeal has been filed. 6. Shri B. R. Gupta, Advocate, learned counsel appearing for the appellant after arguing the case on merit for sometime and feeling that he would not be able to convince the Court with regard to the violation of clause 3 of the Control Order which is punishable under Sec.7 of the act, confines his prayer to the quantum of sentence. He has contended that the Control Order has been issued in terms of the provisions of Section 3 (2) (i) of the Act, the violation of which is punishable under Section 7 (1) (a) of the Act, which is for imprisonment for a term which may extend to one year and shall also be liable for fine. The appellant in fact had applied for issuance of a licence in terms of the Control Order but the same was pending for consideration and in the meantime, he was implicated. Besides, it is contended that the occurrence relates to the period from november 1987 to October 1988 and the appellant was arrested on 23/6/1989 and considerable time has lapsed since the occurrence and his arrest. Besides, it is contended that the appellant is a first offender. Therefore, in the circumstances and particularly keeping in view the fact that he had applied for licence and also that considerable time has lapsed since the commission of the crime to the hearing of this appeal, he may be considered for the grant of probation. 7. Besides, it is contended that the appellant is a first offender. Therefore, in the circumstances and particularly keeping in view the fact that he had applied for licence and also that considerable time has lapsed since the commission of the crime to the hearing of this appeal, he may be considered for the grant of probation. 7. In response Shri J. P. Dhull, Learned Assistant Advocate General, haryana, appearing for the respondent has contended that in the facts and circumstances of the case and keeping in view the fact that the appellant has been found guilty for the offence attributed to him, the sentence of imprisonment as imposed is just and adequate and calls for no interference. Therefore, it is contended that the appeal of the appellant is liable to be dismissed and the judgment and order as passed by the learned Presiding officer, Special Court, Hissar is liable to be maintained and upheld as it is. 8. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. Sec.7 (1) (a) of the Act provides for penalty in respect of contravention of an order made under section 3 thereof. Sec.7 reads as foliows:- "7. Penalties: (1) If any person contravenes any order made under Sec.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 which 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 imprisonment for a term of less than three months. " 9. The provisions of Clause 3 of the Control Order which is alleged to have been violated by the appellant and for which he has been convicted by the learned Presiding Officer, Special Court, Hissar may also be noticed. The same reads as under :- "3. " 9. The provisions of Clause 3 of the Control Order which is alleged to have been violated by the appellant and for which he has been convicted by the learned Presiding Officer, Special Court, Hissar may also be noticed. The same reads as under :- "3. (1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted under this order by the licensing authority: provided that a dealer holding a valid licence of food articles under the various licensing orders mentioned in Schedule II shall obtain a licence under this order within ninety days of the commencement of this order: provided further that a licence granted under the control orders mentioned in Schedule II shall be valid and continue in force for the unexpired portion of the period of licence without payment of additional fee: provided further that educational institutions maintaining hostels for students, charitable institutions, hospitals and religious institutions shall be exempted from the operation of this clause subject to the condition that they store food articles for consumption by their inmates only and not for sale. (2) A separate licence shall be obtained by a dealer for each place of business: provided that a separate licence shall not be required by a licensee when purchases or sales of food articles are effected through another licensee holding a licence for the place where the transaction takes place. " 10. From the evidence and material on record it is established that the appellant has committed the offence for which a show cause notice was issued to him. He carried on dealing with the sale and purchase of rice (jiri) without having the necessary licence under the Control Order, which was to be granted by the Licensing Authority under the Control Order. The prohibition in terms of clause 3 of the Control Order is for carrying business as a dealer except under and in accordance with the terms and conditions of a licence granted under the said Control Order. The prohibition in terms of clause 3 of the Control Order is for carrying business as a dealer except under and in accordance with the terms and conditions of a licence granted under the said Control Order. The term "dealer" has been defined in clause 2 (c) of the Control Order as follows: "dealer" means a person in the business of purchase, sale or storage for sale of any food article in quantities mentioned against each in Schedule I at any one time whether by wholesale or retail and whether in conjunction with any other business or not and includes,- (i) his representative or agent, and (ii) a person engaged in milling of rice in any manner but does not include a person who (a) stores any food article produced by him by personal cultivation and does not engage in the business of purchase or sale of such articles, and (b) an industrial undertaking which is engaged in the manufacture or production of sugar, khandsari or gur and which is registered or licensed under the Industries (Development and Regulations) Act, 1951. The appellant has been found to be carrying on the business as a dealer of rice and paddy. The ST forms and the other evidence and material on record show that the appellant carried on the business of dealing and trading of rice without obtaining the necessary licence which was in clear violation of Clause 3 of the Control Order. Therefore, he has rightly been convicted for having committed an offence punishable under Sec.7 of the Act. 11. The question that however requires to be seen is as regards the quantum of sentence. Learned counsel appearing for the appellant has contended that the appellant is a first offender and keeping in view the fact that he had applied for licence and also that considerable time has lapsed since the commission of the crime to the hearing of this appeal, he may be considered for the grant of probation. In my view, it is not in dispute that considerable time has lapsed from the occurrence which relates to the period from November 1987 to October 1988. Besides, the appellant is stated to be a first offender and it is also not shown as to whether he has committed any other offence during this period. In my view, it is not in dispute that considerable time has lapsed from the occurrence which relates to the period from November 1987 to October 1988. Besides, the appellant is stated to be a first offender and it is also not shown as to whether he has committed any other offence during this period. Nothing has even been shown that he has misused the concession of the bail during the period of pendency of the appeal. It may also be noticed that the Control Order that has been issued is primarily for the maintenance and production for inspecting the books of accounts and records relating to their business and to furnish such information relating thereto as is specified in the Control order. The terms and conditions of the licence granted under the Control order in terms of clause 7 (3) thereof are to be in Form b. The conditions mentioned in Form b relate to the maintenance and regulation of stock. Therefore, the learned counsel for the appellant is right in his contention that the Control Order has been issued in terms of Sec.3 (2) (i) of the act, which requires persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books of accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the Control Order. In terms of Sec.7 (1) (a) (i) of the Act in case of contravention by any person of a Control Order made under Sec.3 of the Act in the case of an Order made with reference to clause (i) of subsection (2) of Sec.3 of the Act, the punishment that can be imposed is imprisonment for a term which may extend to one year and also fine. However, in terms of Sec.7 (1) (a) (ii) in the case of any other Control order, the punishment that is to be imposed is for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. In terms of the proviso to Sec.7 (1) (a) (ii) of the act, 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. In terms of the proviso to Sec.7 (1) (a) (ii) of the act, 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. Therefore, in the case of contravention of a Control Order which comes within the provisions of Sec.7 (1) (a) (i) of the Act, as in the present case, there is no minimum sentence as the Control Order that has been passed is with respect to clause (i) of sub-section (2) of Sec.3 of the Act inasmuch as Control Order relates to maintenance and production for inspection of such books of accounts and records relating to their business and to furnish such information relating thereto. This is evident from the conditions of the licence that is granted in terms of Form b read with clause 7 (3) of the Control Order. 12. Therefore, in the facts and circumstances of the case it would be just, fair and appropriate that the appellant is ordered to be released on probation. Accordingly the appellant on his furnishing bond for a sum of rs.5,000.00 with one surety in the like amount to the satisfaction of the chief Judicial Magistrate, Hissar undertaking to maintain peace and to be of good behaviour and to receive the remaining sentence as and when called upon to do so, within a period of one year shall be released on probation. 13. Accordingly with the above modification regarding release of the appellant on probation, the appeal stands disposed of. Appeal allowed