Sagar Sahu & Anr. vs The State Of Jharkhand

By Court: Heard Mr. Pradeep Kumar Nayak, learned counsel for the appellants and Mr. Tarun Kumar, learned A.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 16.09.2008 passed by learned Additional Judicial Commissioner, F.T.C.-VIII Ranchi, in S.T. No. 124 of 2003, whereby and whereunder the appellants have been held guilty for the offence under Sections 414/34 of the I.P.C. and Section 7(a)(ii) of Essential Commodities Act and sentenced to undergo R.I. for two years along with fine of Rs.1000/- with default stipulation for the offence under Section 414/34 of the I.P.C. and R.I. for one year along with fine of Rs.1000/- each with default stipulation for the offence under Section 7(a)(ii) of Essential Commodities Act. Both sentences were directed to run concurrently.

The factual matrix giving rise to this appeal as per written report of the informant, Mithilesh Prasad, son of Baldeo Prasad, the then Assistant District Supply Officer, is that on 21.01.2002, on the basis of secret information that blue kerosene oil, H.S.D., petrol and grease etc., were being kept in the house of above named accused persons in connivance with the driver of related vehicle and that the accused persons were engaged in illegal business of these items, they have inspected the place of occurrence. He has further alleged that the inspecting team Supply Inspector and Block Supply Officer were the members. In the course of inspection, when the team reached the place of occurrence, they noticed that two persons from the place where the raid was to be conducted were seen fleeing towards the forest from the rear side. However, none of the members of the inspecting team could identify them. He has further alleged that in the dhaba of Basant Sahu, the landlord and other related persons were searched, but no one could be traced. Thereafter, he contacted the Sub-Divisional Officer, Sadar, Ranchi as one of the rooms of the said house was found locked. The S.D.O. Sadar, Ranchi, permitted him to break open the said lock in the presence of two witnesses. Then as per direction, he contacted the Officer-in-charge of Ormanjhi P.S and in the presence of the police officer and independent witnesses, the lock was break open. During the course of search blue kerosene oil 80 litres, high speed diesel 10 litres, petrol 180 litres and other related items were recovered and duly seized by him. He has further alleged that the landlord of said house was again searched for by the inspecting team, but no one could be found. Ultimately, the seized articles were handed over to one Sri Ashok Kumar on the basis of the undertaking (zimmanama). Since Sagar Sahu or his any other family members was not available at the spot, copy of the seizure list could not be served nor the signature of the accused be obtained thereon. He has further claimed that the seizure of the aforesaid articles clearly proof that the above named both accused persons are engaged in black marketing of blue kerosene oil.

On the basis of above written report, Ormanjhi P.S. Case No. 6 of 2002 dated 22.01.2002 was registered for the offences under Sections 7 of the E.C. Act and 413 of the I.P.C. against the accused persons.

After completion of investigation, charge-sheet was submitted against the accused persons for the aforesaid offences and after taking cognizance the case was committed to the Court of Sessions, where S.T. No. 124 of 2003 was registered.

In the course of trial, altogether 8 witnesses were examined by the prosecution apart from several documentary evidences.

On the other hand, no oral evidence has been adduced by the defence.

However, the defence has adduced documentary evidence Exhibit-A, judgment dated 12.07.2005 passed by S.D.J.M., Ranchi in Ormanjhi P.S. Case No.63 of 1999.

The case of defence is denial from occurrence and false implication.

After conclusion of trial, the appellants were held guilty for the offences under Sections 7(a)(ii) of the Essential Commodities Act and 414/34 of the I.P.C. and sentenced as stated above which has been assailed in this appeal.

Learned counsel for the appellants without touching the merits of the judgment has confined himself towards the point of non-extension of the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants. He submits that the appellants have been held guilty for the offences under Sections 414/34 of the I.P.C. and Section 7(a)(ii) of Essential Commodities Act and sentenced to undergo R.I. for two years for the offence under Section 414/34 of the I.P.C. and R.I. for one year for the offence under Section 7(a)(ii) of Essential Commodities Act. Learned counsel further submits that it was first offence of the appellants and they have never been convicted for any other offence. The Probation Officer’s report has been called for which is also available on record showing no previous conviction against the appellants. The appellants have been granted provisional bail by the learned Trial Court which was confirmed by the Co-ordinate Bench of this Court vide order dated 03.12.2008. It is further submitted that the learned Trial Court without recording any special reasons has declined to extend the benefit of Section 4 of the Probation of Offenders Act to the appellants. The occurrence took place in the year 2002 and even after conviction, the appellants have maintained peace and good conduct and have been living normal lives. Hence, the appellants may be granted the benefit of Section 4 of the Probation of Offenders Act instead of directing for substantive sentence of imprisonment as awarded by the learned Trial Court.

On the other hand, learned A.P.P. has defended the impugned judgment on merits but so far as the plea for extension of benefit of Section 4 of the Probation of Offenders Act is concerned, no serious objection has been raised.

I have given anxious consideration to the aforesaid contentions raised on behalf of both side and also perused the impugned judgment and order along with materials available on record.

It appears that plea of first offence and no other previous conviction has been taken by appellants at the time of hearing on quantum of sentence, but has been rejected by learned Trial Court without recording any special reasons. It is also a fact that the appellants have never been previously convicted of any other offence. The incident was of the year 2002 and more than two decades have been elapsed since the date of commission of offence. It is also pleaded that the appellants in the aforesaid period have also maintained peace and harmony and have never been involved in any other criminal activities.

Considering the facts and circumstances of the case, the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, it is expedient in the ends of justice to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants, for which the appellants appear to be entitled, instead of awarding substantive sentence of imprisonment.

In view of the above, this appeal is dismissed on merits with modification in sentence to the extent that instead of undergoing substantive sentence of imprisonment awarded to the appellants by learned Trial Court, the appellants are hereby directed to be released on furnishing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety of like amount each to the satisfaction of learned Trial Court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

If the bond is not furnished within above stipulated time, the learned Trial Court shall issue notice upon the appellants to secure their attendance for furnishing the bond.

In case of violation of terms and conditions of the bond, the learned Trial Court shall call upon the appellants to serve the substantive sentence of imprisonment awarded to them.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back immediately to the court concerned for information and needful.