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CR.RA/530/2005 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 530 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AGRAWAL
SUNILKUMAR BABULAL & 1 - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YM THAKORE FOR MR KEYUR A VYAS FOR MR PRAKASH K JANI
for
Applicant(s) : 1 - 2
MR LR PUJARI, APP for Respondent(s) : 1,
NOTICE SERVED
BY DS for Respondent(s) : 2,
MR VIKRAMSINH GOHIL FOR M/S NANAVATI
ASSOCIATES for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 02/08/2011
ORAL
JUDGMENT
This revision is directed against the judgment and order dated 24-6-2005 passed in Criminal Appeal No.49 of 2003 by the learned Presiding Officer, Fast Track Court No.1, Mehsana, confirming the judgment and order dated 17-11-2003 delivered by the learned Judicial Magistrate (First Class), Visnagar in Criminal Case No.1622 of 1987 whereby the applicants-original accused Nos.1 and 2 were convicted and sentenced to undergo SI for three months with a fine of Rs.1,000/- and Rs.500/- respectively, in default, to undergo further SI for 15 days and 10 days respectively for the offence punishable under Sec.3(1) and 3(2)(d) of Gujarat Minor Forest Produce Trade Nationalisation Act, 1979.
Facts as appearing in this revision is that a complaint was filed by the respondent No.2 complainant against the applicants on 3-12-1987 alleging that the applicant No.1 unauthorisedly collected gum from the forest and stored at an unauthorised place of applicant No.1. The applicant No.1 paid fine amount of Rs.2,000/- on 2-6-1987. However, gums weighing 202.11 quintal were seized by the respondent No.2 under Sec.14(3) of the Act and complaint was filed in the Court of learned J.M.F.C., Visnagar, under Sec.17 of the Act, Secs.206 and 201 of IPC and Secs.3(1) and 3(2)(d) of the Act. Upon issuance of summons, the accused remained present before the Court and their statements were recorded. They also placed on record their reply denying the prosecution case. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Judicial Magistrate (First Class), Visnagar, delivered the impugned judgment convicting and sentencing the applicants as aforesaid in the earlier part of this judgment giving rise to prefer the present revision.
Heard learned advocate, Mr.Y.M.Thakore for Mr.Keyur A.Vyas for Mr.Prakash K.Jani for the applicants, learned APP, Mr.L.R.Pujari, for the respondent No.1-State and learned advocate, Mr.Vikramsinh Gohil for M/s Nanavati Associates for the respondent No.2.
Learned advocate, Mr.Thakore has submitted that he is pressing this revision only on the point of quantum of sentence. It is submitted that the applicant No.2 has expired long back and this revision now remains only qua the applicant No.1 only. It is submitted that the complaint was filed as early as on 3-12-1987. After registration of this offence, no other offence was registered against the applicant No.1 either during trial, pendency of appeal as well as pendency of this application. Moreover, nothing adverse is reported against the applicant all these time. This is the first offence registered against the applicant No.1. He has produced an affidavit affirmed by the applicant No.1 stating that he has closed his business and is settled at present in Mumbai with his family and is doing the business of clothes-fabric. It is also stated by him in the affidavit that he will not claim any right over the muddamal which was confiscated by the respondent No.2 Corporation. Said affidavit is ordered to be taken on record. It is further submitted by learned advocate for the applicant that the applicant No.1 is having the liability of maintaining his entire family. It is also submitted that the applicant No.1 remained in jail for about two days and he has paid the fine also. In view of the above, learned advocate for the applicant has submitted that the sentence imposed on the applicant may be reduced to the period already undergone by the applicant No.1 in jail.
Learned advocate, Mr.Vikramsinh Gohil for M/s Nanavati Associates has submitted that if fine is increased and applicant No.1 will not claim muddamal, he has no objection is appropriate order is passed.
This Court has considered the submission made on behalf of the parties together with the impugned judgment and order of conviction and sentence passed by the trial court.
It
is to be noted that the learned advocate for the applicant has
restricted his arguments only on the point of quantum of sentence.
Hence, I would not like to
reproduce or discuss the entire evidence which are on record as the
same remained
unchallenged. Section 15 of the Act reads as under:
“15.
Penalty– ….
a)
….
(b)
….
Provided
that if the court is of the opinion that it is not necessary to
direct forfeiture in respect of the whole or as the case may be,
any part of minor forest produce, it may for reasons to be recorded
refrain from doing so.”
This
Court is also in complete agreement with the reasons adopted and the
conclusions arrived at by the learned trial court in the impugned
judgment so far as the conviction of the present applicant is
concerned. However, in view of the provisions of Sec.15, the
question to be considered is as to whether the applicant in the
given facts and circumstances of the case entitled to reduction of
sentence which has been awarded by the trial court or not.
In
this connection reference will have to be made to the decisions
rendered in the case of (1)Ghasita Sahu v. State of Madhya Pradesh
reported in AIR (Criminal) 277, wherein the Apex Court, considering
the poor background of the accused reduced the sentence from 5 years
to one already undergone(about 4 years as noticed by the Apex Court)
and also reduced the fine from Rs.20,000/- to Rs.10,000/- and
imposed the default sentence of six months and (2) Shanti Lal v.
State of M.P. reported in 2007(2) EFR 702, wherein in para 36 the
Apex Court has observed that the accused appellant is very poor
person and it was his first offence and considering that fact
reduced the sentence, and (3) Balwinder Singh vs. Asstt.
Commissioner, Customs and Central Excise reported in 2005(2) EFR 420
= AIR 2005 SC 2917) wherein considering the fact that the accused
was a first time offender, sentence of 14 years of imprisonment
imposed by the Courts below was reduced to minimum prescribed under
the Act that of 10 years.
In
the present case, it is to be noted that the applicant has stated in
his affidavit that he is no longer doing the business and is settled
in Bombay doing cloth business. It is also stated that he will not
claim right over the muddamal. This is the first offence committed
by him in his entire life. No other offence was registered against
the applicant either during the trial, pendency of appeal and
revision. He has remained in jail for about two days. The entire
family is dependent wholly upon him. Considering all these aspects,
this Court is of the opinion that interest of justice will be met if
the sentence imposed on the applicant is reduced to the period which
he has already undergone in jail and the fine amount is increased.
The
revision is accordingly partly allowed. While confirming the
conviction, the sentence imposed on the applicant No.1-accused is
ordered to be reduced to the period which has already undergone by
him in jail and the applicant No.1 is directed to deposit an amount
of Rs.5,000/- with the Gujarat State Legal Services Authority on or
before 9-8-2011. The applicant No.1 shall not make any claim over
muddamal and the respondent authority is at liberty to dispose of
the muddamal. As far as the applicant No.2 is concerned, he has
already expired and hence, this revision qua him would not survive
and disposed of. Judgment
and order dated 17-11-2003 delivered
by the
learned Judicial Magistrate (First Class), Visnagar in Criminal
Case No.1622 of 1987 and confirmed vide judgment
and order dated 24-6-2005 passed
in Criminal Appeal No.49 of 2003 by the learned Presiding Officer,
Fast Track Court No.1, Mehsana, is modified to the aforesaid extent.
Rule is made absolute to the aforesaid extent.
(M.D.SHAH,J.)
radhan
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