Gujarat High Court
Laxmansinh vs State on 13 July, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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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,
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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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