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2010 DIGILAW 869 (RAJ)

Om Prakash v. State of Rajasthan

2010-04-20

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—By filing instant criminal appeal under Section 374 Cr.P.C., the accused appellant has challenged the Judgment of conviction and sentence dated 30.7.1988 passed by learned Special Court, Essential Commodities Act, Jaipur (for short 'the trial Court') passed in Criminal Case No. 11/1986 whereby he convicted and sentenced the accused appellant for the offence under Sections 3/7 and 3/9 of the Essential Commodities Act for a period of six months and a fine of Rs. 1,000/- and in default of payment of fine he shall further undergo one month Rigorous Imprisonment. 2. Background facts in a nutshell are that PW.16 Babulal Meena, Enforcement Inspector inspected the premises of M/s. Om Oil Traders, Lalsot. The inspection revealed that in the record of 15.3.1985 there was some interpolation. The sale of 490 liters of Kerosene was sown as 790 liters. The physical verification disclosed shortage of 8 liters of kerosene. Upon this a case under section 7/16 of the Essential Commodities Act was registered against the accused appellant. 3. The accused appellant was read over the charge in substance for the aforesaid offence. The accused appellant did not plead guilty and claimed to be tried. 4. The prosecution in support of its case produced as many as 18 witnesses and certain documents were got exhibited. 5. Thereafter, the statement of the accused appellant under Section 313 Cr.P.C. was recorded. 6. The learned trial Court vide its judgment dated 30.7.1988 convicted and sentenced the accused appellant for the aforesaid offence. 7. Aggrieved with the impugned judgment of conviction and sentence dated 30.7.1988 passed by learned trial Court, the accused appellant has preferred the instant appeal. 8. In this appeal it has been submitted by the learned counsel for the accused appellant that the learned trial court while passing the impugned judgment has failed to take into consideration the facts and circumstances of the case as there was no mensrea on the part of the accused appellant. There was no need to the accused appellant to issue bills for sale of kerosene for Rs. 10/- or less and there is no allegation against the accused appellant of black marketing. The accused appellant was not running a Fair Price Shop and he was not under an obligation to make entries in the Ration Cards. There was no need to the accused appellant to issue bills for sale of kerosene for Rs. 10/- or less and there is no allegation against the accused appellant of black marketing. The accused appellant was not running a Fair Price Shop and he was not under an obligation to make entries in the Ration Cards. Thus, the impugned judgment of conviction and sentence passed by learned trial Court be quashed and set aside and if not then the accused appellant be given the benefit of remission as per law. 9. Per contra, learned Public Prosecutor submits that the learned trial Court has rightly passed the impugned judgment of conviction and sentence and no interference is required to be made in the impugned judgment of conviction and sentence. 10. I have heard learned counsel for both the parties and perused the impugned judgment. 11. The Court's attention was drawn on the Judgment of N. Sukumaran Nair vs. Food Inspector, Mavelikara, reported in 1995 Cr.LJ 3651 = RLW 1996(1) SC 15. In para 2 and 3 of this Judgment, Hon'ble Apex Court has held as under: "2. It has vehemently been urged by Mr. V.A. Bobde, learned senior counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW.1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18, but at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in cross-examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We, are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground. 3. The offence took place in the year 1984, the appellant has been awarded six months' simple imprisonment and has also been ordered to pay a fine of Rs. 1,000/-. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone to deposit in the trial Court a sum of Rs. 6,000/- (six) as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure." 12. Further, Court's attention was drawn on the head note of another Judgment of Satya Narayan Agarwal vs. State of Assam, reported in 2007 Cr.L.R. (SC) 552, which is quoted as under: "Prevention of Food Adulteration Act, 1954- Sec. 7 r/w 16(1)- Criminal Procedure Code, 1973-Sec. 433- Conviction - Commutation of sentence- Conviction with fine of Rs. 1,000/- On appeal High Court enhanced fine to Rs. 5,000/- Application u/S. 433 Cr.P.C. rejected by State Government - Appeal to Supreme Court - Conviction upheld, however, appellant may challenge order passed u/S. 433 by State Government." 13. Again Court's attention was drawn on Judgment of Santosh Kumar vs. Municipal Corporation and Anr., (2000) 9 SCC 151 , similar view was expressed in the following terms: "We, therefore, direct the appellant to deposit in the trial Court a sum of Rs. 10,000/- as fine in commutation of the sentence of 6 months' imprisonment within a period of 6 weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of the fine the State Government may formalize the matter by passing appropriate order under clause (d) of Section 433 of the Code of Criminal Procedure. In the meanwhile, the appellant will remain on bail." 14. On deposit of the fine the State Government may formalize the matter by passing appropriate order under clause (d) of Section 433 of the Code of Criminal Procedure. In the meanwhile, the appellant will remain on bail." 14. It is to be noted that in both the cases there was no direction to formalize the sentence. On the other hand it was clearly noted that the State Government may formalize the sentence. 15. In view of above, the present appeal stands disposed of. I direct the accused appellant to deposit in the trial Court a sum of Rs. 10,000/- as fine in commutation of the sentence of six months' imprisonment within a period of three months from today and intimate to the appropriate Government that such fine has been deposited On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under Section 433 of the Code of Criminal Procedure, till then he will remain on same bail bonds.