Punjab-Haryana High Court
Nem Chand vs State Of Haryana on 26 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 870-SB of 1999
Date of decision: 26th February, 2010
Nem Chand
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Sumeet Goel, Advocate for the appellant.
Mr. Manish Deswal, Deputy Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal has been preferred by Nem Chand son of Hari Dass. He was tried in case FIR No.426 dated 26.11.1996 registered at Police Station Gohana under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as, 'the Act'). The Court of Special Judge, Sonepat found the appellant guilty of offence under Section 7 of the Act for having violated clause 19 of the Fertilizer (Control) Order, 1985. The appellant was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo imprisonment for a period of three months.
On 26th November, 1996, Attar Singh, Deputy Director (Agriculture), Sonepat had inspected the stocks stored by the appellant inside his premises. The appellant was Proprietor of a firm titled 'M/s Nem Chand Vijay Kumar, Gohana Mandi, Gohana'. The inspecting team, Criminal Appeal No.870-SB of 1999 2 consisting of Deputy Director (Agriculture), Sonepat; Sub Divisional Agriculture Officer, Gohana; Quality Control Inspector, Sonepat and ASI Mehra Singh of Police Station Gohana, found the appellant in possession of 119 bags of DAP (Spic). The appellant failed to divulge the origin of fertilizer and the source of its acquisition. He was not possessed of any document, from which purchase of fertilizer could be deciphered. Out of 119 bags of DAP (Spic), three bags at random were taken up and about 1200 gms of fertilizer was taken out of those three bags. It was divided into three equal parts. In consonance with the rules, three samples were prepared and one of them was sent to the Laboratory for analysis. The Director, Central Fertilizer Quality Control and Training Institute, Faridabad submitted its report Ex.PE that the sample was non-standard.
The trial Court examined six witnesses. Statement of the accused was also recorded under Section 313 Cr.P.C. However, no witness was examined in defence.
Mr.Sumeet Goel, Advocate appearing for the appellant, has stated that he will not be able to assail the conviction of the appellant in the present case, as the prosecution has succeeded to prove guilt of the appellant. However, counsel for the appellant has drawn my attention to the order of sentence passed by the trial Court on 19th August, 1999. In the said order, the trial Court had noticed the age of the appellant as 68 years. At present, appellant will be about 79 years of age. Mr.Goel has further stated that the only son of the appellant has expired about six months ago. The appellant is at the fag end of his life. He is ailing and has serious medical problems. Learned counsel has further stated that the appellant has committed no such offence before or after the present occurrence. Counsel for the appellant has relied upon 'Sant Lal v. State of Haryana' 1999 (2) RCR (Criminal) 563, wherein a Single Bench of this Court, taking the age of the appellant to be about 84 years, had released Criminal Appeal No.870-SB of 1999 3 the accused on probation. The relevant portion of the judgment reads as under:
"6. Keeping in view the old age of the accused- appellant, in my opinion, he would certainly be entitled to be released on probation of good conduct, especially when he is not a previous conduct and is a first offender. Merely because Legislature has provided the minimum sentence under the provisions of the Act, in my opinion, would not be sufficient to disentitle the accused-appellant of being granted the benefit of probation, in view of the law laid down by the Full Bench of this Court, in the case of Joginder Singh v. State of Punjab, 1980 CLR (Punjab & Haryana) 196. In the said authority it was held by the Full Bench of this Court, in a case under the Punjab Excise Act, that the prescribed minimum sentence under the provisions of the said Act, would not operate as a bar to the applicability of the provisions of Section 360/361, Cr.P.C. Similarly, in a case under the Essential Commodities Act, this Court, in the case of Niranjan and another v. State of Haryana, 1992(3) Crimes 1069, had ordered the release of the accused- appellant on probation, on the ground that the accused had to face protracted criminal proceedings."
This Court, in another case titled 'Satinder Singh v. Punjab State' 2003(4) RCR (Criminal) 616, also relied upon the case of Sant Lal (supra) and had released the accused on probation, taking into consideration the protracted trial of 15 years as a mitigating circumstance.
In the present case, premises of the appellant were inspected in the year 1996. A period of more than 13 years has already elapsed. Taking into consideration the protracted trial, age and antecedents of the appellant, this Court is of the view that the appellant can be released on probation.
Criminal Appeal No.870-SB of 1999 4
Accordingly, while upholding the conviction of the accused appellant for offence under Section 7 of the Act, it is directed that Nem Chand appellant shall be released on probation for a period of six months. He shall furnish personal/surety bonds to the satisfaction of the Chief Judicial Magistrate, Sonepat with an undertaking that he shall maintain peace, good conduct and behaviour during the period of probation. However, cost of litigation is assessed at Rs.10,000/-. The same shall be deposited within three months after receipt of certified copy of this order. In case the appellant commits breach of any of the terms and conditions of the bonds, he shall be called upon by the Chief Judicial Magistrate, Sonepat to undergo the sentence awarded. Non deposit of the amount of cost shall be construed as dismissal of the present appeal and benefit of probation shall not accrue to the appellant.
With the observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 26, 2010 rps