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2010 DIGILAW 881 (RAJ)

Shiv Charan v. State of Rajasthan

2010-04-22

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—By filing instant criminal appeal under Section 374 Cr.P.C., the accused appellants have challenged the Judgment of conviction and sentence dated 31.8.1988 passed by learned Special Court, Essential Commodities Act (learned Sessions Judge, Alwar District Alwar) (for short `the learned trial Court') passed in Criminal Case No. 8/1985 whereby he convicted and sentenced the accused appellants for the offence under Section 3/7 and of the Essential Commodities Act for a period of three months Rigorous Imprisonment and a fine of Rs. 500/- and in default of payment of fine each of them shall further undergo 15 days Rigorous Imprisonment. 2. Background facts in a nutshell are that on 14.6.1985 PW.2 Jitendra Singh, Enforcement Officer and PW.2 Veer Singh Yadav, Enforcement Inspector in the presence of PW.1 Hari Singh inspected the premises of M/s. Gupta Diesel Service, Kathoomar. At that time, Pooran Mal Bansal, an emplo-yee of the firm, was present. PW3 Veer Singh Yadav drew report Ex.P.1 which revealed that at the premises of the firm a diesel measurement machine was installed in violation of the order dated 9.5.1984 Ex. P.4 passed by the Collector, Alwar. It was also detailed out in the report that there was same lapse in sending the monthly returns. Upon this a case under Sec. 7/16 of the Essential Commodities Act was registered against the accused appellants. 3. After investigation challan was filed against the accused appellants. 4. The accused appellants were read over the charge in substance for the aforesaid offence. The accused appellants did not plead guilty and claimed to be tried. 5. The prosecution in support of its case produced as many as 5 witnesses. 6. Thereafter, the statement of the accused appellants under Section 313 Cr.P.C. were recorded. 7. The learned trial Court vide its judgment dated 31.8.1988 convicted and sentenced the accused appellants for the aforesaid offence. 8. Aggrieved with the impugned judgment of conviction and sentence dated 31.8.1988 passed by learned trial Court, the accused appellants have preferred the instant appeal. 9. In this appeal it has been submitted by the learned counsel for the accused appellants that the learned trial Court while passing the impugned judgment has failed to take into consideration the facts and circumstances of the case as also the statements of the prosecution witnesses. The learned trial Court also failed to consider that the order dated 9.5.1984 is itself illegal and without jurisdiction. The learned trial Court also failed to consider that the order dated 9.5.1984 is itself illegal and without jurisdiction. This order could not have been issued by the Collector. There is no cogent material on record to hold that there was any lapse in submission of the Returns in time. Lastly, he submits that there was no mensrea involed in the instant case even as per the prosecution case. Thus, the impugned judgment of conviction and sentence passed by learned trial court be quashed and set aside and if not then the accused appellants be given the benefit of remission as per law. 10. E-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. 11. I have heard learned counsel for both the parties and perused the impugned Judgment. 12. The Court's attention was drawn on the Judgment of N. Sukumaran Nair vs. Food Inspector, Mavelikara, reported in 1995 Cr.L.J. 3651 = RLW 1996(1) SC 15. In para 2 and 3 of this Judgments, 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. 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. 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." 13. 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." 14. 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. 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." 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 each of the accused appellants to deposit in the trial Court a sum of Rs. 10,000/- as fine in commutation of the sentence of three months' Rigorous 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 they will remain on same bail bonds.