Allahabad High Court
Jai Prakash Gupta vs State Of U.P. on 17 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:85514
RESERVED ON 09.04.2026
DELIVERED ON 17.04.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1312 of 1986
Jai Prakash Gupta
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Govind Saran
Counsel for Respondent(s)
:
A.G.A.
Court No. - 84
HON'BLE JAI PRAKASH TIWARI, J.
1. Heard Sri Shravan Kumar Yadav, learned counsel for the appellant and Sri M.K. Upadhyay, learned AGA for the State, and perused the entire material available on record.
2. The present criminal appeal has been preferred against the judgment of conviction dated 28.04.1986 and order of sentence dated 29.04.1986 passed by the learned Special Judge, Aligarh in Criminal Case No. 46 of 1984 (State vs. Jai Prakash Gupta), arising out of Case Crime No. 153 of 1983, whereby the accused-appellant has been convicted for the offence punishable under Section 3/7 of the Essential Commodities Act, 1955 and sentenced to undergo three months' rigorous imprisonment with fine of Rs. 2000/- and in default of payment, he shall undergo further rigorous imprisonment for a period of two months.
3. Learned counsel for the appellant has not challenged the findings of conviction recorded by the trial court and has confined his submissions only to the question of sentence and fine.
4. The prosecution case, briefly stated, is that Supply Inspector, Atrauli, District Aligarh received information from the informer that the accused was illegally hoarding the kerosene oi1. On 26.9.1983 at about 1 p.m. he alongwith Shri Laxmi Narain Gautam and Shri R.P. Kulshrestha, Supply Inspector, Aligarh, went to the house, which contained the shop of the accused. The property is situated in Mohalla Kundanganj, town Chharra Tehsil Atrauli, P.S. Barla, District Aligarh. A raiding party, in presence of the witnesses conducted a search of the house of the accused. The accused was absent from his house and was reportedly having gone out. In a room, six drums containing 950 litres of kerosene oil and one drum containing 120 litres of High Speed Diesel Oil were found stored. No document for hoarding the kerosene oil and High Speed Diesel oil could be traced out during the raid. The recovered kerosene oil and the High speed Diesel oil were given in the Supurdgi and sample of kerosene and diesel was taken. The accused had no licence to deal in the commodities and illegally carried on business in kerosene oil and High speed Diesel oil. The complainant wrote the report and lodged the same at P.S. Barla, District Aligarh on 26.9.1983 at 2.30 p.m. On the basis of the written report, the chick F.I.R. was prepared and the case was registered in the general diary against the accused by Head Moharrir. The investigation of the case was entrusted to S.I., who went to the place of occurrence and prepared the site plan. The investigating officer during the course of investigation recorded the statements of the witnesses under Section 161 Cr.P.C. and after having observed the various formalities submitted charge-sheet against the accused on 31.12.1983. District Magistrate, Aligarh accorded the sanction to prosecute the accused under Sec. 3/7 of the Essential Commodities Act. The accused pleaded not guilty to the charge levelled against him, and alleged to have been falsely implicated due to party friction in the town. He has further added that the house, wherefrom the kerosene oil and High speed Diesel oil are said to have been recovered, does not belong to him. No kerosene oil or High Speed Diesel oil was recovered from his house and the said recovered commodities do not belong to him. The prosecution, in order to prove its case, has examined P.W.1, complainant. He has narrated the prosecution case and proved the recovery memo-cum-Supurdginama (Ex.Ka-1). He has also proved the written report (Ex. Ka-2). P.W.2 S.I. is the last investigating officer, who has proved the charge-sheet (Ex. Ka-5) and the sanction (Ex. Ka-6). He has also proved the site plan (Ex. Ka-3) prepared by S.I. He has further proved the chick F.I.R. (Ex. Ka-4) scribed by Head Moharrir. The accused in defence has examined D.W.1, Moharrir, Town Area, Chharrah to state that Mohalla Kundanganj and Shivpuri are two different Mohallas and the accused lives in Mohalla Shivpuri. The accused also filed a ration card (Ex. Kha-1). A certificate issued by Secretary and a Receipt (Ex.Kha-2) issued by the Accountant of the Town Area, Chharrah have also been filed by the accused and the same are proved by D.W.1. The sanction accorded by the District Magistrate Aligarh to prosecute the accused for the recovery of kerosene oil and High Speed Diesel Oil is Ex. Ka-6. The District Magistrate, though has given the details of the recovery of the High Speed Diesel Oil from the possession of the accused, but while according the sanction it has not been mentioned that the accused is liable to be prosecuted for the recovery of High Speed Diesel Oil also. As such, no sanction to prosecute the accused for the recovery of High Speed Diesel Oil was accorded by the District Magistrate. This fact has been also conceded by the learned counsel for the State during the course of arguments. Thus, the accused, for want of sanction of the District Magistrate, can not be held guilty for storage of High Speed Diesel Oil. As far the recovery of 950 litres of Kerosene oil in six drums is concerned, the sanction accorded by the District Magistrate to prosecute the accused under U.P. Kerosene Control Order, 1962 is proper. It has been contended on behalf of the accused that the District Magistrate accorded the sanction without applying his mind. A perusal of the sanction (Ex.Ka-6) would show that the District Magistrate applied his mind before according the sanction. In this sanction, it is clearly mentioned that before according the sanction the District Magistrate has perused the case diary and other relevant papers. Thus, there is no substance in the argument of the learned counsel for the accused that the District Magistrate accorded the sanction without applying his mind. It has been contended on behalf of the accused that the recovery of kerosene oil was not made from his house or his shop. P. W.1, Supply Inspector, has deposed on oath that the raid was laid at the house of accused, from where 950 litres of kerosene oil in six drums was recovered. He also prepared the recovery memo of the same. The accused has said that the house does not belong to him from where the recovery of kerosene oil was made. According to the prosecution, the kerosene oil was recovered from the house situated in Mohalla Kundanganj of town Chharrah. The house and the shop of the accused are in the same building. The shop was locked at the time when the raid was laid. The Additional District Magistrate (Civil Supplies), Aligarh was present at the place, where the raid was laid. He, however, ordered to break open the lock of the shop. The kerosene oil was recovered from the room of the house belonging to the accused. P.W.1 though has admitted that no customer was found at the shop or the house of the accused; but, the kerosene oil can not be stored or possessed in such quantity without licence. P.W.1 Hari Om Gupta and P.W.2 Jeet Singh investigating officer both have consistently deposed that one of the commodities, which were recovered from the house of the accused was kerosene oil. It has been argued on behalf of the accused that according to the F.I.R. the recovery of the kerosene oil was made from the house situated in Mohalla Kundanganj; whereas in the charge-sheet the accused is shown to be resident of Mohalla Shivpuri. The accused will not get any benefit of this discrepancy because Shivpuri and Kundanganj are the adjoining Mohallas of Chharrah town and are separated by a road, which leads to Sankara, as has been admitted by D.W.1 Tota Ram. P.W.1 Hari Om Gupta has consistently stated that the recovery of 950 litres of kerosene oil was made from the house of the accused and the same was stored for sale in black. Thus, the guilt of the accused for defiance of the provisions of U.P. Kerosene Control Order, 1962 is proved and the accused is accordingly liable to be convicted.
5. So far as question of sentence is concerned, it was argued by learned counsel for accused-appellant that alleged incident occurred on 26.09.1983 and since then a period of 42 years has passed. Accused-appellant has no criminal antecedents and appellant has remained in custody for some days during trial. It was submitted that in view of above stated facts and circumstances, it would be inappropriate to send the accused-appellant in judicial custody at this stage. It was further submitted that appellant was first time offender, and was not convicted in any other case, therefore, he prays for the benefit of the Probation of Offenders Act, 1958.
6. To substantiate his arguments, learned counsel has placed reliance upon the judgment of Supreme Court in Dhurukumar s/o Radhakishan Pitti and another vs. State of Maharashtra; (2017) 9 SCC 411.
Further, he placed reliance upon the recent judgment of the Hon'ble Apex Court in the case of Tarak Nath Keshari Vs. State of West Bengal, 2024 (13) SCC 384, wherein the Hon'ble Apex Court after considering the provisions of the Act, 1955 extended the benefit of the Act, 1958 to the accused. The relevant paragraphs of Tarak Nath Kesari (supra) are extracted hereunder:-
"9. However, still we find that a case is made out for grant of benefit of probation to the appellant for the reason that the offence was committed more than 37 years back and it was not pointed out at the time of hearing that the appellant was involved in any other offence. Before all the courts below, the appellant remained on bail. While entertaining his appeal, even this Court had granted him exemption from surrendering. Section 4 of the Probation of Offenders Act, 1958 has a non obstante clause. The same is extracted below:
"4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
10. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab & Ors.
11. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence."
7. Learned A.G.A. has opposed the appeal and argued that keeping in view that a period of 42 years has passed, suitable sentence may be awarded.
8. Accused-appellant has been convicted under Section 3/7 of E.C. Act, 1955.
Section 7 of E.C. Act, 1955 reads as under:-
[Section 7 of E.C. Act, 1955. (1) If any person contravenes any order made under Section 3,-
(a) he shall be punishable,-
(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
(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:
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;
(b) any property in respect of which the order has been contravened shall be forfeited to the Government;
(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the court so orders, be forfeited to the Government.
(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:
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.
(2A) If any person convicted of an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (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:
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.
(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.
[(3) Where a person having been convicted of an offence under sub-section (1) is again convicted 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.]
9. It is well settled law that sentence must be just 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 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 emphasize, these are certain illustrative aspects put forth in a condensed manner.
10. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that apart of the merits of the case, so far as the prayer of learned counsel for the appellant for providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded by the Apex Court.
Section 4 of the Probation of Offenders Act, 1958, which reads as under:
4. Power of Court to release certain offenders on probation of good conduct.-
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour:Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
11. In the instant case, alleged incident took place about 42 years ago and appellant is not previous convict and that accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. It was stated that he remained in custody for some days during trial. Considering all aspects of the matter, no useful purpose would be served by sending accused-appellant in judicial custody at this stage.
12. Accordingly, this Court finds that the prosecution has successfully proved its case beyond reasonable doubt. The conviction of the accused-appellant under Section 3/7 of the Essential Commodities Act is affirmed.
13. So far as the question of sentence is concerned, it is noteworthy that the incident pertains to the year 1983, i.e., more than four decades old. Further, the appellant has faced the agony of criminal proceedings for a long period. There is no material to indicate involvement of the appellant in any other criminal case.
14. The conviction of the appellant under Section 3/7 of the Essential Commodities Act is maintained.
15. The facts of the present case are similar to the facts of Tarak Nath Kesari (supra), wherein the accused- appellant Tarak Nath Kesari was convicted and sentenced to undergo imprisonment for a period of three months and a fine of Rs. 2000/-, under Section 7(1) of the Act, 1955. The Hon'ble Supreme Court in Tarak Nath Kesari (supra) extended the benefit of probation while upholding the conviction under Section 7(1) of the Act, 1955. It was further held by the Hon'ble Supreme Court in paragraph no. 10 that even if minimum sentence is prescribed in Section 7 of the Act, 1955, the appellant-accused is entitled to the benefit of probation. The minimum sentence provided under the Act, 1955 is not a hurdle for invoking the applicability of provisions of the probation of offenders Act, 1958. Therefore, the objection raised by the learned A.G.A. has no force and thus, fails.
16. After hearing the learned counsel for both the sides and going through the record, this Court finds that the learned trial court has not given any special reasons as prescribed under Section 361 of Cr.P.C. as to why the benefit of Section 4 of the Act, 1958 was not extended to the appellant.
17. The incident in the present matter took place way back in the year 1983. The accused-appellant has suffered in this matter for last 42 years and there is no criminal antecedent prior or after the incident. Therefore, in view of the above discussion, this Court finds that the sentencing order passed by the learned trial court suffers from irregularity and benefit of provision of the Act, 1958 should be provided to the accused-appellant.
18. In view of the above facts and circumstances of the case and also considering the scope of Section 4 of the Act, 1958, the conviction of the appellant is maintained but the sentence is hereby modified. Instead of sending the appellant to jail, he is given benefit of Section 4 of the Act, 1958 and he is directed to file two sureties to the tune of Rs. 25,000/- along with his personal bond before the District Probation Officer, Aligarh and also an undertaking to the effect that he shall maintain peace and good behaviour during the period of one year from today. The said bonds are to be filed by the appellant within a period of one month from the date of this judgment.
19. In case of breach of any of the above conditions, the appellant shall be taken into custody and shall have to undergo sentence awarded to him.
20. With the above modification, the instant criminal appeal is partly allowed.
21. A certified copy of the order be also sent to the court concerned for compliance.
22. Office is directed to communicate this order to the court concerned for necessary compliance.
23. Trial court record, if any, shall also be sent back to the district court concerned.
(Jai Prakash Tiwari,J.) April 17, 2026 Brijesh