Patel Singh And ORS v. State Of Punjab

- 1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 101-2 cases Date of decision: 24.01.2024 Patel Singh and others .....Appellants

Versus

State of Punjab ..... Respondent Roop Lal .....Appellant

Versus

State of Punjab ..... Respondent

CORAM:

HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present :

Mr. Surinder Garg, Advocate for the appellants. Mr. Manipal Singh Atwal, DAG, Punjab.

***** AMAN CHAUDHARY, J.

1.

Both these criminal appeals arising out of a common judgment, are thus being decided together.

2.

Challenge in the present appeals is to the judgment/order dated 25.11.1998, passed by the learned Judge, Special Court, Faridkot, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for two years alongwith fine of Rs.3,000/- and in default of payment of the same, to further undergo rigorous imprisonment for one month for the offence under Section 7 of the Essential Commodities Act, 1955 (for short 'the Act').

- 23.

Brief facts of the case are that on 16.11.1997, a raid was conducted in the house of accused-Roop Lal situated in Village Wara Bhai Ka, Bathinda by SHO Darshan Singh alongwith Sarpanch-Gurnam Singh and Naranjan Singh, Member Panchayat but the accused was not found to be present there. However, three drums containing kerosene oil each carrying 220 litres were recovered from there. Thereafter, a raid was conducted at the shop of the accused in the same village and seven drums of kerosene oil each containing 220 litres were recovered. Samples were taken and sealed, thereafter sent for examination. 4.

After completion of investigation, final report under Section 173 Cr.P.C. was presented in the Court against the accused-appellants. On finding a prima facie case, charges under Section 7 of the Act, were framed against them, to which they pleaded not guilty and claimed trial. 5.

The prosecution, in order to prove its case, examined as many as 19 witnesses. Thereafter, the statements of the accused-appellants were recorded under Section 313 Cr.P.C. whereby incriminating evidence was put to them, which they denied and pleaded innocence. In defence, they examined one witness. 6.

The trial Court came to the conclusion that prosecution has proved its case and accordingly convicted and sentenced as mentioned above. 7.

Aggrieved accused-appellants are before this Court. 8.

Learned counsel for the appellants, at the outset, gives up the challenge to the appeal on merits and prays for extending the benefit of probation in view of the facts that they are the sole breadwinners of their respective families; the incident pertains to the year 1997; first time offenders and never misused the concession of bail granted to them.

9.

Learned State counsel submits that the Court below has rightly

- 3convicted the accused-appellants on the evidence produced by the prosecution. Thus, he prays for the dismissal of the present appeals. He, however, affirms the factum of non-involvement of the appellants and misused the concession of bail granted to them.

10.

Heard the learned counsel on either side and perused the record. 11.

Evidently, the trial Court had thoroughly examined the evidence and categorically recorded that according to the record maintained by the Depot holders accused Roop Lal has failed to account for the kerosene oil found in the Tanker and moreover he has kept the kerosene oil beyond the jurisdiction of his depot which was in utter violation of the Rules. Thus, there is no scope for interference in the findings recorded and conclusion arrived at by the trial Court. As such, the conviction of the appellants is affirmed. 12.

As regards the prayer for probation made on behalf of the appellants is concerned, it would be apposite to make a reference to Section 4 of the Probation of Offenders Act, 1958, which reads thus: "4.

Power of Court to release certain offenders on probation of good conduct.-

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an

- 4offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

13.

It would be worthwhile to refer to the judgment of Ratan Lal vs. State of Punjab AIR 1965 SC 444, whereby Hon'ble The Supreme Court, regarding the purpose and object of 'The Probation of Offenders Act, 1958' had observed and held that, "The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual

- 5offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act." 14.

Hon'ble The Supreme Court in Sitaram Paswan and Anr. vs. State of Bihar, AIR 2005 SC 3534, observed that benefit of probation can be extended at the appellate or revisional stage as well, and held that, "For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim.

The benefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act having regard to the nature of the offence and the character of the offender and overall circumstances of the case.

- 6committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."

15.

A gainful reference can be made to Harivallabha vs. State of M.P., (2005) 10 SCC 330, and Dhurukumar vs. State of Maharashtra, (2017) 9 SCC 411, wherein the respective accused were convicted and sentenced under Section 7 of the Essential Commodities Act, 1955, Hon'ble the Supreme Court considering that they were first time offenders and ought to have been granted the benefit under Section 360 CrPC, released them on probation. 16.

Hon'ble the Supreme Court in Tarak Nath Keshari v. State of West Bengal, 2023(2) Law Herald (SC) 1391, by observing that even if a minimum sentence is provided in the Essential Commodities Act, 1955, the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958 and released the appellant on probation, while considering the fact that the act was committed more than 37 years and he was not involved in any other offence. Similarly in Naresh Kumar vs. State, 2001 SCC OnLine Del 557, a case relating conviction under the Essential Commodities Act, 1955, it was held by the High Court that the accused deserved the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, especially in view of the fact that he had suffered the agony of trial lasting for about five years; the offence was of a technical nature; not a previous convict and also the offence committed by him

- 7was not one punishable with life imprisonment. 17.

In Satish vs. State of U.P., (2021) 14 SCC 580, Hon'ble the Supreme Court had observed that, "Whilst it is undoubtedly true that society has a right to lead a peaceful and fearless life, without free roaming criminals creating havoc in the lives of ordinary peace loving citizens. But equally strong is the foundation of reformative theory which propounds that a civilised society cannot be achieved only through punitive attitudes and vindictiveness; and that instead public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first time offenders ought to be liberally accorded a chance to repent their past and look forward to a bright future. [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112]".

18.

Humanistically viewing, the appellants having suffered the ignominy of trial since long; successfully warded off their crime-proneness-an evident learning of a lesson; their socio-economic circumstances, this Court finds extenuation to be implicit. Thus, to strike a balance and serve the interest of justice, the appellants deserve to be granted an opportunity to assure the authorities of their reformation. They be released on probation for a period of one year, on the following conditions as enshrined under Section of the Probation of Offenders Act, 1958:-

(1) They shall execute a bond for good behaviour with two solvent sureties in a sum of Rs.10,000/- each which shall be executed before the trial Court within a period of one month from today.

(2) The said bond shall be in force for a period of one year.

(3) They shall be subject to the supervision of the Probation Officer and subject to the conditions laid down in the Probation of Offenders Act.

19.

It is clarified that in case there is any breach of the aforesaid

- 8conditions, the appellants will forthwith be taken into custody and shall have to undergo the sentence awarded to them by the trial Court. 20.

Appeals stand disposed of accordingly.

21.

A photocopy of this order be placed on the file of the connected case. (AMAN CHAUDHARY) JUDGE 24.01.2024 Hemant Whether speaking/reasoned :

Yes / No Whether reportable :

Yes / No