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2023 DIGILAW 1763 (RAJ)

Rajesh Kuamar Jain v. State of Rajasthan

2023-09-14

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : MAHENDAR KUMAR GOYAL, J.:— This criminal appeal has been filed by the accused-appellant (for brevity “the appellant”) against the judgment dated 29.04.1989 passed by the learned Special Court (Essential Commodities Act), Jaipur (for brevity “the learned trial Court”) in Criminal Case No. 5/1987 (summary trial): State of Rajasthan v. Rajesh Kumar. whereby, the appellant has been convicted and sentenced as under:— Section 3/7 of the Essential Commodities Act, 1955 (for brevity, “the Act of 1955”):— 4. months’ rigorous imprisonment with fine of Rs. 1,000/-; in default whereof: 3 months’ simple imprisonment. 2. The relevant facts in brief are that on an inspection dated 24.05.1985 by the Enforcement Inspector of the fair price shop of the appellant under order of the District Supply Officer, Jaipur, various irregularities were found whereupon, an FIR dated 06.07.1985 (Ex-P-18) was registered against him with the Police Station Bandikui under Section 3/7 of the Act of 1955. After investigation, charge-sheet was filed against him. The trial Court narrated substance of accusation under Section 3/7 of the Act of 1955 to the appellant who pleaded not guilty. After summary trial, the appellant has been convicted and sentenced as stated hereinabove. 3. Eschewing the merits of the case, learned counsel for the appellant submits that the incident is of about 38 years old, the appellant is aged about 60 years with no previous conviction and prays for the benefit of probation under the Probation of Offenders Act, 1958 (for brevity, “the Act of 1958”). He submits that the Hon'ble Supreme Court of India has, vide judgment dated 10.05.2023 in case of Tarak Nath Keshari v. State of West Bengal, Criminal Appeal No. 1444/2023, held that the appellant convicted of sentence under Section 3/7 of the Act of 1955 is entitled for the benefit of probation despite there being minimum sentence. 4. Learned Public Prosecutor has opposed the prayer. 5. Heard. Considered. 6. The incident is of 24.05.1985, i.e., more than 38 years old. The appellant was aged about 20-21 years at that time as is reflected from findings of the learned trial Court vide Para no. 36 of the judgment dated 29.04.1989 and is aged about 60 years as on date. Admittedly, he has no record of any previous conviction. He has been awarded the substantive sentence of four months rigorous imprisonment under Section 3/7 of the Act of 1955. 36 of the judgment dated 29.04.1989 and is aged about 60 years as on date. Admittedly, he has no record of any previous conviction. He has been awarded the substantive sentence of four months rigorous imprisonment under Section 3/7 of the Act of 1955. Although, there is a bar under Section 4 of the Act of 1958 against granting an accused benefit of probation where minimum sentence is provided as is the situation herein as minimum sentence of three months is provided; but, the Hon'ble Supreme Court of India has, in case of Tarak Nath Keshari, (supra), held as under: “10. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. State of Punjab,. 11. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence.” 7. This court finds no reason not to extend the appellant benefit of probation following the aforesaid precedential law. 8. Resultantly, the appeal is disposed of in terms that the appellant is released on probation under Section 4 of the Act of 1958. He shall file a personal bond in the. sum of Rs. 50,000/- together with two sureties each of Rs. 25,000/- for a period of two years to the satisfaction to the learned Special Court (Essential Commodities Act), Jaipur with a further stipulation that he shall appear and receive sentence when called upon during the probation period and in the meantime, to keep peace and be of good behaviour. 9. Since, the appellant is on bail, his bail bonds stand discharged accordingly. The appeal is partly allowed in the aforesaid terms.