Gujarat High Court
Daudbhai Hasanbhai Ghanchi vs State Of Gujarat on 27 March, 2025
NEUTRAL CITATION
R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO.
1107 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
==================================================
Approved for Reporting Yes
No
==================================================
DAUDBHAI HASANBHAI GHANCHI
Versus
STATE OF GUJARAT
==================================================
Appearance:
MOHAMADZAID I SAIYED(8411) for the Applicant(s) No. 1
MR SS SAIYED(3690) for the Applicant(s) No. 1
MR NEERAJ SHARMA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 27/03/2025
ORAL JUDGMENT
1. The present revision application under Section 397 read with 401 of the Code of Criminal Procedure is filed challenging the validity and legality of the judgment and order dated 12.10.2011 passed in Criminal Case No. 1614 of 2006 by the learned Additional Chief Judicial Magistrate First Class, Viramgam as well as the impugned judgment and order dated 17.11.2017 passed in Criminal Appeal No. 9 of 2011 passed by the learned 2nd Additional District and Sessions Court, Ahmedabad, whereby the appeal preferred by Page 1 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025 NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined the applicant - accused came to be dismissed confirming the order dated 12.10.2011 passed by the learned Additional Chief Judicial Magistrate First Class, Viramgam.
2. The brief fact leading to filing of the present application is that a complaint came to be filed by the Deputy Mamlatdar, Detroj Police Station on 10.04.2006 wherein it was contended that as a part of his duty, he had to look after the distribution of Essential Commodities and was required to implement the order passed by the Collector. The Collector, Ahmedabad had authorized the Mamlatdar to lodge a complaint against the applicant for the breach of Sections 16, 23, 24, 214, 18(9) and 16 of the Gujarat Essential Article (License, Control and Stock Declaration) Order, 1981 as well as condition nos. 7, 9, 3, 2(a), 2(b), 6(6) of Licence. Looking to the nature of offence, it tantamount to breach of Section 3 of the Essential Commodities Act, 1955. Therefore offence punishable under Section 7 of the Essential Commodities Act was registered.
2.1. Pursuant to filing of the complaint by the Mamlatdar and investigation by the authorities, charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Viramgam and the case came to be numbered as Criminal Case No. 1614 of 2006. The learned trial court after hearing the parties and after considering the Page 2 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025 NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined documentary evidence, passed an order dated 12.10.2011 convicting the present applicant and ordered to undergo simple imprisonment for a period of two years and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment for a period of five days.
3. Being aggrieved and dissatisfied with the order dated 12.10.2011, the present applicant preferred an appeal being Criminal Appeal No. 9 of 2011 before the learned Sessions Court, Viramgam, which came to be rejected vide order dated 17.11.2011. As a result of dismissal of appeal, the applicant has preferred present revision application.
4. Heard Mr. Mohamadzaid I. Saiyed, learned advocate for the applicant and Mr. Neeraj Sharma, learned Additional Public Prosecutor appearing for the State - respondent.
5. Mr. Mohamadzaid I. Saiyed, learned advocate for the applicant at the upfront conceded to the fact that present application being Criminal Revision Application and looking to the findings given by both the courts below, there would be no reason or justification to upturn the order passed by both the courts below. However, it has been submitted by Mr. Saiyed, learned advocate for the applicant to grant the benefit of Section 4 of the Probation of Offenders Act. Page 3 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025
NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined
6. Per contra, Mr. Neeraj Sharma, learned Additional Public Prosecutor appearing for the State - respondent has submitted that both the courts below have properly recorded true and correct facts and the conviction has been rightly confirmed. However, there is no argument on the part of the applicant to assail the order of conviction passed by the trial court. The offence is essentially under the Essential Commodities Act and looking to the nature of offence, the benefit of grant of Probation of Offenders Act ought not to be extended to the present applicant.
7. Having heard the learned advocates appearing for the respective parties and having perused the material on record, the only issue remains for consideration is with regard to the grant of benefit of Section 4 of the Probation of Offenders Act. It is not in dispute that the findings returned by the learned Additional Chief Judicial Magistrate, First Class in convicting the present applicant is more or less accepted by the applicant and there is no challenge to the same as submitted by the learned advocate for the applicant. Reliance is placed on the decision of the Hon'ble Apex Court in the case of Harivallabha & Anr., v. State of Madhya Pradesh, reported in (2005) 10 SCC 330, whereby the Court has granted benefit of Section 4 of the Probation of Offenders Act. The Page 4 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025 NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined observations made in the said decision read as under :-
"1. Heard learned counsel for the parties.
2. The appellants were convicted by the trial court u/s. 7 of the Essential Commodities Act, 1955 and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000. On appeal being preferred, the High Court upheld the conviction and sentence of fine, but reduced the sentence of imprisonment from three years to three months. Hence, this appeal by special leave.
3. Learned counsel appearing on behalf of the appellants submitted that the appellants are first offenders and in the facts and circumstances of the case they should have been dealt with under the provisions of Sec. 360 of the Code of Criminal Procedure, 1973 (for short "the Code") and the High Court reduced the sentence of imprisonment from three years to three months without recording any reasons, as required u/s. 361 of the Code, which lays down that for special reasons to be recorded, a court can refuse to release a person on probation of good conduct u/s. 360 of the Code. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of Sec. 360 of the Code"
8. In similar set of circumstance, this Court in the case of Nagsi Khemu Harijan v. State of Gujarat rendered in Criminal Revision (Against Conviction) No. 941 of 2005 dated 20.04.2015 has observed that while upholding the conviction and sentence recorded under the Essential Commodities Act, 1955 benefit of probation under Section 360 of Code of Criminal Procedure can be granted. These powers can be exercised by the appellate court or by the High Court while exercising the powers of revision. As per Section 4 of the Probation of Offenders Act, 1958, the Court may release certain offenders on Page 5 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025 NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined probation of good conduct.
9.1. In view of the above and as per the statement made by the learned advocate for the applicant, the applicant is not involved in any other offences as far as offence under the Essential Commodities Act. This aspect has been confirmed by the learned Additional Public Prosecutor. Looking to the nature of offence, the Hon'ble Apex Court as well as this Court in catena of decisions as mentioned herein- above has granted the benefit of Section 4 of the Probation of Offenders Act, 1958.
9. Therefore, instead of requiring the applicant to undergo sentence of imprisonment, the applicant is directed to be released on probation of good conduct on execution of bond of Rs.25,000/- for good behaviour for a period of three years. The applicant shall further furnish surety of equivalent amount in addition to the personal bond as above. The applicant shall remain in supervision for good conduct for a period of three years and sentence imposed as per the order impugned shall remain suspended during the said period. It is further directed that in the event of any breach, he shall appear and shall be required to receive the said sentence during such period as may be directed by the Court.
Page 6 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025
NEUTRAL CITATION R/CR.RA/1107/2017 JUDGMENT DATED: 27/03/2025 undefined
10. With the aforesaid observations and directions, the present application succeeds and the same is allowed. Rule is made absolute accordingly.
Office shall send back the Records and Proceedings to the Court concerned if received.
(PRANAV TRIVEDI,J) phalguni Page 7 of 7 Uploaded by PHALGUNI PATEL(HC00175) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 21:39:13 IST 2025