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CR.A/291/1999 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 291 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
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 ?
=========================================================
LAXMANSINH
MANABHAI MATIA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
BY MANKAD for
Appellant(s) : 1, for Appellant(s) : 1,
MR HL JANI, APP for
Opponent(s) : 1,
HL PATEL ADVOCATES for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/07/2010
ORAL
JUDGMENT
The
present appeal is directed against the judgment and order passed in
Special Summary Case No. 7 of 1998, passed by the learned Special
Judge, Panchmahal, at Godhra, dated 15.3.1999 recording the
conviction of the appellant-orig.accused for the offence under
Section 3 and 12(a)(a) of the Essential Commodities Act and imposing
sentence of rigorous imprisonment for one year and fine of Rs.500/-,
in default, to undergo further simple imprisonment for one month.
2. The
facts of the case, briefly summarised, are that the
appellant-orig.accused is said to have indulged in the business of
selling Kerosene without licence and also using the licence of one
Ratan Mansukh as the licence holder as the licence was issued to him
unauthorisedly and thereby committed offence as alleged. It is case
that on 17.1.1979 on a surprise visit on checking by the Inspector of
the Department at the place of orig.accused, it was found that he
was not the same licencee and that he was Laxman Mana and on
scrutiny, it was found that he was selling the Kerosene of the
Registered licenced hawker of Ratan Mansukh for about 8 years and
thereby committed offence under the Essential Commodities Act.
3. On
the basis of the complaint given by the Inspector, the case was
registered as Special Summary Case No.7 of 1998. However, as it is a
summary case, the plea of the accused was recorded at Exh.1. The
accused denied to have committed any such offence and therefore, the
learned Special Judge proceed with the trial.
4. After
recording of the evidence of the prosecution witnesses was over, the
learned Special Judge, recorded the further statement of the accused
under Section 313 of the Code of Criminal Procedure.
5. After
hearing the learned APP and the learned advocate for the
orig.accused, the learned Special Judge convicted the accused for the
alleged offence under Section 3 read with Section 12(a)(a) of the
Essential Commodities Act, imposing the sentence as stated
hereinabove. It is this judgment and order which has been assailed
on the grounds stated in the memo of the appeal.
6. Learned
advocate Mr.B.Y.Mankad submitted at the outset that the earlier order
was passed by this Court on 15.10.2007 that one S.D.Parikh who was
the dealer responsible and the present accused was selling at his
instance in place of the licenced hawker. However, he submitted that
without prejudice, he does not press the present appeal on merits and
would confine his case only on the aspect of sentence. Learned
advocate Mr.Mankad submitted that as stated in the statement of the
accused, he is an illiterate village person who would not have
understood the things in proper perspective and he has other family
circumstances. Therefore, considering the fact that this is his
first offence, the benefit under the Probation of Offenders Act may
be extended subject to enhancement of the fine.
7. Learned
APP Mr.Jani submitted that as the learned advocate has not pressed
the appeal on merits, the aspect of benefit under the Probation of
Offenders Act may be granted subject to the enhancement of fine.
8. Having
heard learned advocate Mr.Mankad as well learned counsel Mr.V.H.Patel
for newly added respondent and learned APP Mr.Jani, and after going
through the entire material evidence on record, this Court has to
decide as to whether the benefit under the Probation of Offenders Act
can be extended or not as the learned advocate has not pressed the
appeal on merits and particularly agrees with the findings and the
conclusions arrived at. At the same time, considering the material
evidence on record and also the submissions that the accused is a
poor village man and this is his first offence, the benefit under the
Probation of Offenders Act is required to be extended in light of the
object of the said Act. The earlier order dated 15.10.2007 has also
been noted on the basis of which, Mr.S.D.Parikh was issued notice and
whether he can be joined as accused and the entire case can be
remanded for re-trial, however, the incident is of 1998 and
therefore, considering the time limit, it would be a futile exercise
and no useful or fruitful purpose would be served. This is one more
further aspect for extending the benefit of Probation of Offenders
Act to the accused. Therefore, the Court is of the opinion that the
benefit under the provisions of the Probation of Offenders Act is
required to be granted to the present appellant-accused while the
conviction is required to be confirmed and maintained.
9. In
the result, the
present appeal hereby stands dismissed. The judgment and order dated
15.3.1999 passed by the learned Special Judge, Panchmahal, at Godhra,
in Special Summary Case No.7 of 1998, recording the conviction of the
appellant-accused for the offence punishable under Section 3 and
12(a)(a) of the Essential Commodities Act is maintained and
confirmed.
However,
while maintaining the conviction for the offence, the benefit is
required to be given under the Probation of Offenders Act.
Therefore, the substantive sentence shall remain under suspension for
a period of two years. The appellant-accused is directed to execute
a bond of good behaviour of Rs.5,000/- (Rupees Five thousand only)
for two years with a surety before the trial Court within a period of
one month from the date of receipt of this writ, failing which, the
trial Court shall issue non-bailable warrant for arrest of the
appellant-accused so that he may have to serve the sentence imposed
upon him. It is also ordered that in case of breach of condition of
the bond of good behaviour, the trial Court shall be at liberty to
issue bailable warrant against the appellant-accused.
Further,
the order of sentence imposing fine of Rs.500/-
is enhanced to payment of Rs.5,000/- (Rupees five thousand only)
which shall be deposited on or before
the execution of the bond of good behaviour before the Special Judge,
Panchmahal, at Godhra.
The
bail bond executed by the appellant-accused shall stand discharged on
the day on which the appellant-accused executes the bond of good
behaviour before the trial Court.
(Rajesh
H.Shukla,J./)
Sreeram.
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