JUDGMENT Mohd. Azhar Husain Idrisi, J. Heard Sri Radheyshyam Yadav, Amicus Curiae, appearing for the appellant-accused, learned AGA for the State and perused the record. 2. The instant appeal arises out of impugned judgement and order dated 24.07.1985 passed by learned Special Judge (E.C. Act), Kanpur, in Case No. 09 of 1983 (State v. Ballumal), under Section 3/7 of Essential Commodities Act, 1955 (hereinafter referred to as 'E.C. Act'), police station Chamanganj, District Kanpur, whereby accused-appellant Ballumal has been convicted under Section 3/7 of E.C. Act and sentenced to three months rigorous imprisonment and fine of Rs. 2000/. 3. The factual matrix, unfolded in prosecution case in brief is, that on 16.01.1983, appellant's shop was raided by Regional Enforcement Squad along with S.M.I., M.A. Siddiqui, Marketing Inspector Ashok Kumar Bajpai, S.K. Pal, Sanad Kumar Srivastava and Ravi Narain Srivastava. At the time of inspection it was found that the said shop the accused had taken delivery of 30 quintals of rice on 11.01.1983 as per the order of Chhatriya Khadya Adhikari Anwaranj for R.F.C. Godown Marey Company Kanpur. Instead of bringing such rice to the shop and distributing the same to the card holders he disposed of the same otherwise as there was no entry of the receipt and disposal of such rice in the registers of the accused. Besides, 2 quintals 40 Kg Ata Flour Mill was found deficient at his shop than that shown in the stock register. In this view of the matter he allegedly violated Clauses 4 and 23 of U.P. Foodgrains and other Essential Articles Distribution Order, 1977 and of Clause 8 of U.P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 by violating Condition No. 3 (1) (b) and (c) of the Licence of Form 'D' issued to him and thus render himself liable under Section 3/7 of the Essential Commodities Act. 4. On same day a criminal case was registered against accused-appellant on the basis of the complaint of the complainant Krishna Pal, Marketing Inspector. An FIR was registered against the appellant and enteries were made in chik FIR and Kaimi G.D., the carbon copy of the same was also prepared in the same process with original. The investigation was entrusted to S.I. Jagdamba Bukhsh Singh. 5. Investigating Officer, has investigated the matter. Prepared site plan and recorded the statement of the witnesses. An FIR was registered against the appellant and enteries were made in chik FIR and Kaimi G.D., the carbon copy of the same was also prepared in the same process with original. The investigation was entrusted to S.I. Jagdamba Bukhsh Singh. 5. Investigating Officer, has investigated the matter. Prepared site plan and recorded the statement of the witnesses. He also took and had taken into possession Sale Register (Ext.II and III), Stock Register (Ext. IV) from the possession of the accused appellant. Ext. Ka-11, recovery memo was prepared by him in this behalf and also recorded the statements of the members of the Enforcement Squad. Sanction of prosecution was obtained from District Magistrate Exhibit Ka-14. After due investigation, getting credible and clinching evidence against the accused/ appellant charge sheet Exhibit Ka-13. was submitted in the court concerned. 6. The learned trial judge framed charges under Section 3/7 E.C. Act, which were read over and explained to the appellant. The appellant abjured the charges. He did not plead guilty and claimed to be tried. 7. To substantiate the prosecution has examined the following ocular evidence:- S. No. Particulars of the witness Nos. 1 Ashok Kumar Bajpai (marketing inspector) PW-1 2 Damodar Lohani (ARO) PW-2 3 Sukhdeo Prashad (marketing inspector) PW-3 4 S.I. Krishna Pal (marketing inspector) PW-4 5 Maqsood Ali (Public witness) PW-5 6 Mukhtar Ahmad (Constable) PW-6 7 S.I. J.B. Singh (I.O.) PW-7 8 Siya Ram Gupta (handwriting expert) PW-8 8. Apart from the abovestated ocular evidence, prosecution has adduced the following documentary evidence also:- S. No. Particulars Ext.Nos. Proved By 1 Aata weightment with sample of Aata Ext.1 PW-1 2 Sale Registers Ext.2 & 3 PW-2 3 Treasury chalan Register Ext.4 PW-4 4 Relese order for 30q. rice Ext.5 PW-2 5 Takpatti of weightment Ext.6 PW-2 6 Relese orders-II Ext.Ka-5A PW-2 7 Supurdgi Nama Ext.Ka-7 PW-1 8 Recovery Memo Ext.Ka-8 PW-4 9 Sale Registers-II & III Ext.2 & 3 PW-5 10 Stock Registers-IV Ext.Ka-11 PW-4 11 Prosecution Sanction Ext.Ka-14 PW-7 12 Chik FIR Ext.Ka-9 PW-6 13 Handwriting expert report Ext.Ka-16 & 17 PW-8 14 Charge-sheet Ext.Ka-13 PW-7 15 Copy of kaimi G.D. Ext.Ka-10 PW-7 9. After completion of the prosecution evidence accused/ appellant was examined under Section 313 Cr.P.C. in which the accused/ appellant stated that he is falsely implicated. He denied the prosecution evidence. 10. After completion of the prosecution evidence accused/ appellant was examined under Section 313 Cr.P.C. in which the accused/ appellant stated that he is falsely implicated. He denied the prosecution evidence. 10. The appellant adduced following defence witnesses as ocular evidence:- S. No. Particulars of the witness Nos. 1 Kushal Das DW-1 2 Abdul Hakim DW-2 3 Rajendra Prashad (handwriting expert) DW-3 11. After hearing and analysing evidence on record, accused/ appellant was convicted by the trial court under Section 3/7 of E.C. Act and sentenced as stated above. Being aggrieved by the impugned judgement and order dated 24.07.1985, accused-appellant has preferred the present appeal. 12. A careful scrutiny of evidence of both the parties show that PW-1 Ashok Kumar Bajpai, Marketing Inspector and P.W. 4 Sri Krishna Pal, Marketing Inspector have deposed in clear and categorical terms that on 16.01.1983 they along with other members of squad had conducted inspection and at the time of inspection on 16.01.1983, the stock of Aata wholesale Mill at the shop of the accused as per the stock register was 14 Quintals 25 Kgs., but on physical verification it was found to be 7 quintals 50 Kgs. On 16.01.1983 he made a sale of 4 quintals 35 Kgs. Ata and as such the Ata was found to be deficient on physical checking to the extent of 2 quintals 40 Kgs. Certain other stocks of sugar and wheat were also there but the mention of the same is not necessary. The accused has taken delivery of 30 quintals of rice on 11.01.1983 from the Goverment Godown for being sold to be card holders but he did not make any entry regarding it in his stock register. Takpatti of the weighment of the Ata whole Mill prepared at the time of inspection is Ext. Ka-1. P.W. 1 Ashok Kumar Bajpai denied that some Ata which had got moisture was kept in the cabin of the accused which the Enforcement Squad did not take into account. Ext. Ka-7 is the Supurdigi Nama through which the stock of the shop of the accused had been given in the custody of Mool Chand Hans Raj, which has been proved by P.W. 4 Sri Krishan Pal. Ext. Ka-8 is the Fard of recovery prepared at the spot by P.W.4. 13. Ext. Ka-7 is the Supurdigi Nama through which the stock of the shop of the accused had been given in the custody of Mool Chand Hans Raj, which has been proved by P.W. 4 Sri Krishan Pal. Ext. Ka-8 is the Fard of recovery prepared at the spot by P.W.4. 13. P.W. 2 A.R.O. Damodar Lohani, has stated in his statement that the accused has come to his office and had filled a demand memo (Registration Memo) for 30 quintals rice. He has proved the same which is Ext. Ka-3. It contains the signature of the accused and he has also admitted his signatures on it. This witness has also proved the photocopy of the Treasure Challan of Rs. 6,120/- deposited by the accused for getting such rice, which is Ext. Ka-4. This witness prepared the release order for Marey Company government Godown for releasing 30 qntls rice to the accused. He has proved the release order Ext. Ka-5. It is also contains the signature of the appellant-accused Ballu Mal which had been attested by this witness. 14. P.W.3 Sukhdeo Prasad has stated in his statement on that date i.e. on 11.01.1983, he was on duty at Marey Company Government Godown, the appellant-accused Bulla Mal had brought to him the release order Ext. Ka-5 for the release of 30 quintals rice and after obtaining the signature of the appellant-accused on the release order and after comparing the same with his signature attested by the A.R.O. Sri Lohani, he issued 30 quintals rice to the appellant-accused. A Takpattin of the weighment of the rie released to the accused had been prepared and the same is Ext. Ka-7. 15. P.W. 5 Maqsood Ali is a public witness who has come to say that his ration card was attached to the shop of the accused but he did not take any ration since 13.01.1983 from the shop of the appellant-accused. He has further stated that the entry dated 13.01.1983 in the sale register (Ext. II) of the appellant/ accused at serial no. 26 neither bears his signature, nor of his son. 16. P.W. 6 Constable Mukhtar Alam is a formal witness who has proved the Chik F.I.R. Ext. Ka-9 written in the police station on the basis of the Fard of recovery filed by Marketing Inspector Sri Krishan Pal on 16.01.2023, which has been marked Ext. Ka-9. 26 neither bears his signature, nor of his son. 16. P.W. 6 Constable Mukhtar Alam is a formal witness who has proved the Chik F.I.R. Ext. Ka-9 written in the police station on the basis of the Fard of recovery filed by Marketing Inspector Sri Krishan Pal on 16.01.2023, which has been marked Ext. Ka-9. This witness has also been lodged the FIR on 16.01.1983 at 10:45 hours and entry has been made in G.D. No. 32 (Ext. Ka-10). 17. P.W.7 Jagdamba Bukhsh Singh is the Investigating Officer of this case, he had recorded the statements of the members of the Enforcement Squad and had taken in possession Sale Register (Ext.-II and III) and Stock Register (Ext-IV). 18. P.W. 8 Siya Ram Gupta, who is the Hand Writing Expert has got compared the disputed two signatures of the appellant-accused on the front of release order Ext. Ka-5 and Ext. Ka 5A. He has opined that all the disputed signatures of the appellant-accused tally with his specimen signature and that they have been made by one and the same person. He also proved the photos taken in this behalf Ext Ka-16 and his report Ext. Ka-17. 19. The defence of accused-appellant was rightly negated by the trial court. It is clear from evidence that act of accused-appellant has violated provisions of clause 4 of U.P. Foodgrain and other Essential Articles Distribution Order, 1977. Learned trial court has discussed entire evidence and found that act of accused-appellant contravenes provisions of Clause 4 of U.P. Food grains and other Essential Articles Distribution Order, 1977 Act and thus, liable to be convicted under Section 3/7 of E.C. Act. After considering entire evidence on record, it is apparent that conviction of accused-appellant is based on evidence and suffers no factual, illegality. 20. Learned Amicus Curiae for the appellant has not disputed the findings rendered by learned trial court regarding conviction of accused-appellant and confined his arguments only regarding sentence. However, I have gone through the entire evidence carefully. 21. So far as question of sentence is concerned, it was argued by learned counsel for accused-appellant that alleged incident occurred on 11.01.1983 and since then a period of 40 years has passed. Accused-appellant has no criminal history and that he has faced the sword of proceedings of this case for about 40 years. 21. So far as question of sentence is concerned, it was argued by learned counsel for accused-appellant that alleged incident occurred on 11.01.1983 and since then a period of 40 years has passed. Accused-appellant has no criminal history and that he has faced the sword of proceedings of this case for about 40 years. It was submitted that in view of above stated facts and circumstances, it would not be appropriate to send the accused-appellant in judicial custody at this stage. 22. Learned A.G.A. has opposed and argued that keeping in view that a period of 40 years has passed since the incident, appropriate sentence may be awarded. 23. In historical backdrop, Indian parliament has not laid down any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in changing circumstances of the society. So, the Courts are dependant on the precident laid down by the Supreme Court. 24. Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt with High Courts and Trial Courts. In Accused "X' v. State of Maharastra (2019) 7 SCC 1 ) "the Apex Court has held that" It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities, in light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." "12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). 13. In State of Madhya Pradesh v. Udham and others (2019) 10 SCC 300 the Apex Court has held" we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." 25. It is also notable that in State of Madhya Pradhesh v. Vikram Das (2019) 4 SCC 125 ".... where minimum sentence is provided for, the Court cannot impose less than minimum sentence." 26. In Mohd. Giasuddin v. State of AP, [ AIR 1977 SC 1926 ], explaining rehabilitary and reformative aspects in sentencing it has been observed by the Supreme Court: "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modem community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." 27. The term 'Proper Sentence' was explained in Deo Narain Mandal v. State of UP [ (2004) 7 SCC 257 ] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 28. In Ravada Sasikala v. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel v. State of UP [ (2010) 12 SCC 532 ], Guru Basavraj v. State of Karnataka, [ (2012) 8 SCC 734 ], Sumer Singh v. Surajbhan Singh, [ (2014) 7 SCC 323 ], State of Punjab v. Bawa Singh, [ (2015) 3 SCC 441 ], and Raj Bala v. State of Haryana, [ (2016) 1 SCC 463 ] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 29. Keeping in view the facts and circumstances of the case and also criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 30. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 31. Accused-appellant Ballu Mal has been convicted under Section 3/7 of E.C. Act. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 31. Accused-appellant Ballu Mal has been convicted under Section 3/7 of E.C. Act. Section 7 of E.C.Act which reads as under:- [(1) If any person contravenes any order made under Section 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; (b) any property in respect of which the order has been contravened shall be forfeited to the Government; (c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the court so orders, be forfeited to the Government. (2) If any person to whom a direction is given under clause (b) of sub-section(4) of section 3 fails to comply with the direction, he shall be punishable 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. (2A) If any person convicted of an offence under subclause (ii) of clause (a) of sub-section (1) or under subsection (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six 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 six months. (2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months or six months, as the case may be. [(3) Where a person having been convicted of an offence under sub-section (1) is again convicted convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that subsection, by order, direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the Order.] 32. It is well settled principle that sentence must be just but simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the court but the same has to be guided by certain principles. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the court but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner 33. It has also been observed by the Apex Court that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. In Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545 , the Apex Court elaborating the sentencing that, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances. 34. In Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545 , the Apex Court elaborating the sentencing that, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances. 34. In the instant case, alleged incident took place about 40 years ago and appellant is not a previous convict and that accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. It was stated for some days, accused-appellant has remained in custody. Considering all aspects of the matter, no useful purpose would be served by sending accused-appellant in to judicial custody to suffer imprisonment of three months at this stage, rather it appears that ends of justice would met it the sentence of three months imprisonment awarded by the trial court be set aside and accused-appellant be sentenced to the period already undergone by him along with fine of Rs. 5,000/-. 35. Accordingly, conviction of accused-appellant Ballu Mal is upheld, but sentence of three months awarded by the trial court is set aside and accused-appellant is sentenced to the period already undergone by him along with fine of Rs. 5,000/- Accused-appellant is directed to deposit fine of Rs. 5,000/- within forty five days from today. In default of payment of fine, accused-appellant shall undergo three months imprisonment. 36. Resultantly, the instant appeal is party allowed with following directions:- (i) The judgment of conviction dated 27.04.1985 is confirmed though the sentence awarded of three months Rigorous Imprisonment is modified to the period already undergone by appellant. (ii) The amount of fine of Rs.2,000/- is increased to Rs.7,000/- which shall be paid by appellant within six weeks from the date of judgment. In default, thereof, appellant has to undergo an additional simple imprisonment of two months. (iii) A copy of judgment be sent to Court concerned for necessary information and compliance. (iv) Trial court's recod be remitted back forthwith. 37. The Court appreciate the assistance rendered by Sri Radheyshyam Yadav, learned Amicus Curiae. The State Government is directed to pay Rs.5000/- as remuneration to Sri Radheyshyam Yadav at the earliest.