Partly allowed

Virendra Kumar v. Stat

Allahabad HC28 Sept 2022CRLA/291/1993

Case brief

AI extract

What is this about?

The High Court allowed the appeal partially. Convicting the appellant for illegal storage of kerosene and diesel under the E.C. Act was upheld as the evidence was satisfactory. However, due to a lapse of 32 years, the original sentence was modified to one month imprisonment warrant till rising of the Court with a fine of Rs. 6,000.

What did the court decide?

Sentence reduced from one month rigorous imprisonment to imprisonment warrant till the rising of the Court with a fine of Rs. 6,000.

Virendra Kumar Vs Stat — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 92

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Case :- CRIMINAL APPEAL No. - 291 of 1993

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Appellant :- Virendra Kumar

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Respondent :- State

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Counsel for Appellant :- K.K. Arora,Ashutosh Upadhyay Counsel for Respondent :- A.G.A.

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Hon'ble Gajendra Kumar,J.

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[Order on Crl. Misc. Recall Application No.01 of 2020]

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This is an application moved on behalf of the appellant with a prayer to recall the order dated 11.02.2020 passed by another co-ordinate Bench of this Court, by which Non Bailable Warrant was issued against the appellant.

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I have gone through the application and affidavit filed in support thereof.

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Cause shown for recalling of the order dated 11.02.2020 is sufficient.

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The recall application is allowed. The order dated 11.02.2020 is recalled.

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[Order on Appeal]

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Heard Sri Ashutosh Upadhyay, learned counsel for the appellant and learned AGA for the State.

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This appeal arises out of impugned judgment and order dated 03.02.1993 passed by learned Special Judge (E.C. Act), Moradabad in E.C. Case No.106 of 1991 (State Vs. Virendra Kumar), under Section 3/7 of Essential Commodities Act, 1955 (hereinafter referred to as 'E.C. Act'), Police Station- Hayat

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Nagar, District- Moradabad, whereby accused-appellant Virendra Lal has been convicted under Section 3/7 of E.C. Act and sentenced to 1 months rigorous imprisonment along with fine of Rs.3000/- and in default of payment of fine, he has to undergo additional one month rigorous imprisonment.

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Learned counsel for the appellant has not disputed the findings rendered by learned trial court regarding conviction of accused-appellant and confined his arguments only regarding the sentence. However, I have gone through the entire evidence carefully.

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Prosecution version is that the accused-appellant was illegally running the business of Kerosene oil and Diesel Oil in Saraitareen, Mohalla-Sambhal, Moradabad. On 15-10-1990, Supply Inspector conducted a raid at the shop of the appellant, where he found that 225 litre diesel and 30 litre kerosene oil were illegally stored in the premises. Accused was failed to present any license in that respect. Afterwards, the FIR was lodged and investigation was started against the appellant. After completion of investigation, police submitted a chargesheet against the accused-appellant under Section 3/7 of E.C. Act.

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In support of his case, prosecution has examined the witness PW-1 Shri A.K. Garg, Supply Inspector and his statement was recorded.

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After hearing and analyzing the evidence on record, accused-appellant was convicted by the trial court under Section 3/7 of E.C. Act, and was sentenced as stated in

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paragraph no.2 of this judgment. Hence, being aggrieved of the same, accused-appellant has preferred the present appeal.

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Scrutiny of the evidence shows that PW-1, Shri A.K. Garg, Supply Inspector has made clear and categorical statement to the effect that on 15-10-1990, the accused was failed to present the license in respect to the illegally stored kerosene oil and diesel oil at his premise. Statement of PW-1 is clear and cogent and no such fact could emerge in his crossexamination so as to create any doubt about the credibility of his version.

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As far as the question of sentence is concerned, it was argued by learned counsel for accused-appellant that the alleged incident is shown to have taken place on 15-10-1990 and since then a period of 32 years have elapsed. Accusedappellant has no criminal antecedents. It is submitted that during trial, the appellant remained in custody for some days. It was submitted that in view of above stated facts and circumstances, it would not be appropriate to send the accusedappellant in judicial custody, at this stage.

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Learned A.G.A. has opposed the appeal and argued that keeping in view that a period of 32 years have passed since the incident, suitable sentence may be awarded.

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Before proceeding further with the case, a cursory glance of Section 7 of E.C. Act is necessary for better appreciation of the present case.

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“7. Penalties.—[(1) If any person contravenes any order made under section 3,—

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(a) he shall be punishable,—

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(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

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(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:

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[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;]

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(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

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(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.]

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[(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: 37[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.]

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(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: 38 [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.]

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[(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.]]

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[(3) Where a person having been convicted of an offence under sub-section (1) is again 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 sub-section, 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.]”

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It is a well settled principle that sentences must be just and 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. 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

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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 emphasise, these are certain illustrative aspects put forth in a condensed manner.

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It has been observed by the Hon'ble 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. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. A court, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, 5 sentences can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances. (vide Raj Bala vs. State of Haryana & Ors, passed in Special Leave Petition (Crl.) Nos. 4099-4100 of 2015)

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In the instant case, the alleged incident took place about 32 years ago and the appellant is not a previous convict and that accused-appellant alone cannot be held responsible for the long delay in disposal of this appeal. It was stated that he remained in custody for some days during trial. Considering all

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aspects of the matter, no useful purpose would be served by sending accused-appellant in judicial custody at this stage, rather it appears that ends of justice would be met if sentence of one year imprisonment awarded by the trial court is reduced to imprisonment till the rising of the Court along with fine of Rs.2,000/-.

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Accordingly, conviction of accused-appellant Virendra Kumar is upheld and sentence of one month of R.I., awarded by the trial court, is modified accordingly and accusedappellant is sentenced to imprisonment till the rising of court along with fine of Rs.6,000/- (Six thousands only). Accusedappellant is directed to deposit a fine of Rs.6,000/- within forty five days from today. In default of payment of fine, accusedappellant shall undergo additional one month of R.I.

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The instant appeal is partly allowed in above terms.

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A copy of this order be transmitted to the court concerned.

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Order Date :- 28.9.2022

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SK Goswami

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Digitally signed by SHIVAKANT GOSWAMI Date: 2022.10.19 17:25:04 IST Reason: Location: High Court of Judicature at Allahabad

Virendra Kumar v. Stat

Case brief

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What did the court decide?

Virendra Kumar v. Stat

Case brief

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What did the court decide?

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