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2010 DIGILAW 886 (RAJ)

Ram Swaroop v. State of Rajasthan

2010-04-22

MAHESH CHANDRA SHARMA

body2010
JUDGMENT 1. - By filing instant criminal appeal under section 374 Cr.P.C, the accused appellant has challenged the Judgment of conviction and sentence dated 23.8.1988 passed by learned Special Judge (Session Judge) Jhalawar (for short the trial Court') passed in Criminal Case No.70/1987 whereby he convicted and sentenced the accused appellant for the offence under sections 3/7 and 9 of the Essential Commodities Act for a period of one year Rigorous Imprisonment and a fine of Rs. .2,000/- and in default of payment of fine he shall further undergo four months Rigorous Imprisonment. 2. Background facts in a nutshell are that PW1 Ghanshyam Dass, District Supply Officer submitted a complaint to the police mentioning therein that the accused appellant was not distributing the ration articles in village Golana as per the licence conditions and used to sell the goods from Khanpur where he resides. It was also mentioned in the complaint that he used to take Rs. .5/- kg. of sugar at the place of 4.80. Wrong entries were also made in the distribution register of distribution of sugar and those entries were not done in the ration cards of the holders of the same. The accused appellant also gave sugar to one Bheru Lal when he had no ration card on his name and some times sugar has been distributed twice, thrice or four times on the names of ration holders. 3. On the basis of this FIR the police investigated the matter and filed the charge sheet against accused appellant. 4. 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. 5. The prosecution in support of its case produced as many as 22 witnesses and certain documents were got exhibited. 6. Thereafter, the statement of the accused appellant under section 313 Cr.P.C was recorded. In defence he produced DW1 Usman. 7. The learned trial court vide its judgment dated 23.8.1988 convicted and sentenced the accused appellant for the aforesaid offence. 8. Aggrieved with the impugned judgment of conviction and sentence dated 23.8.1988 passed by learned trial Court, the accused appellant has preferred the instant appeal. 9. In defence he produced DW1 Usman. 7. The learned trial court vide its judgment dated 23.8.1988 convicted and sentenced the accused appellant for the aforesaid offence. 8. Aggrieved with the impugned judgment of conviction and sentence dated 23.8.1988 passed by learned trial Court, the accused appellant has preferred the instant appeal. 9. 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 also the statements of the prosecution witnesses as there was no mensrea on the part of the accused appellant. The trial court failed to consider that the accused appellant was not convicted under section 9 of the Act but in the operative portion of the order the accused appellant has been sentenced under section 9 of the Act. The trial court has failed to properly explain the charge to the accused appellant. The complainant who made the complaint to the District Supply Officer was prejudiced to the appellant. There is no allegation of mischief against the appellant regarding distributing sugar to the villagers and if there were any allegations against the appellant then the villagers would have made complaint against the appellant and they would have stated so before the court. There is no evidence of the villagers to implicate the appellant in the offence. The investigating agency investigated the matter only implicate the accused appellant and not to bring the true facts on record. The trial court failed to consider the statements of PW3 Bhagchand Bairwa, PW4 Surendra Kumar Soni. The aforesaid witnesses have made improvements, omissions and contradictions in their testimony. The learned trial court failed to consider the statements of PW7 Devi Lal, PW13 Shri Nath Dube, PW20 Ram Charan and PW22 Mathura Lal properly and correctly and erred in placing reliance on the testimony of these witnesses. 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. 10. 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. 11. 10. 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. 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 v. Food Inspector, Mavelikara, reported in 1995 Cr.LJ 3651 , In para 2 and 3 of this Judgment, Hon'ble Apex Court has held as under: "2. It has vehemently been urged by Mr. VA. 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 PW1 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. 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. 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." (Underlined by me). 13. Further, Court's attention was drawn on the head note of another Judgement of Satya Narayan Agarwal v. State of Assam, reported in 2007 Cr.L.R (Sc) 552 ,which is quoted as under: "Prevention of food Adulteration Act, 1954- Section 433- Conviction - commutation of sentence-Conviction with fine of Rs. 1,000/- On appeal High Court enhanced fine to Rs. 5,000/- Application Under Section. 433 Cr.P.C rejected by State Government-Appeal to Supreme Court- Conviction upheld, however, appellant may challenge order passed under Section. 433 be State Government." 14. Again Court's attention was drawn on Judgment of Santosh Kumar v. Municipal Corporation and Anr., (2000) 9 SCC 151 ,similar view was expressed in the following terms: "We, therefor, 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 of 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 ball." 15. 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. 16. In view of above, the present appeal stands disposed of. In the meanwhile, the appellant will remain on ball." 15. 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. 16. 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. .25,000/- as fine in commutation of the sentence of one year 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 he will remain on same bail bonds.Appeal Disposed of as Above. *******