ARVIND KUMARversusSTATE

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 1207 of 1987

Arvind Kumar
                                                              .....Appellant(s)
                                   Versus
State
                                                            .....Respondent(s)

Counsel for Appellant(s)             :   Anuj Kumar Gupta, Shyam Lal
Counsel for Respondent(s)            :   A.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. This appeal has been preferred by the appellant against the conviction and
sentence recorded vide judgment and order dated 24.04.1987 passed by
learned Special Judge, Moradabad in E.C. Act Case No.35/9 of 1994
convicting and sentencing the appellant under Section 3/7 of E.C. Act, P.S.-
Sambhal, District- Mordabad, to undergo RI for 9 months and a fine of
Rs.3000/- and in default of payment of fine the accused to further undergo
for 3 months.

2. The prosecution case, in brief, is that the accused, Arvind Kumar is a
fertilizer dealer and licensee and proprietor of the firm in the name of Kisan
Khad Store situated at Alam Sarai, Sambhal. The B.D.O., Sambhal Sri
Surendra Pal inspected the fertilizer store on 05.07.1983 in the presence of
the accused. The accused was found to have not maintained the stock
register as required under the law and the entries in the stock register were
not up to date. The entries were made only up to 03.07.1983 in the stock
register. There were entry of 56 bags of Calcium 25% and 16 bags of
Calcium 26% on 30.06.1983, however, these entries were not carried
forward further.

3. From the cash memo, seal of 7 bags was shown in the name of Sri Kishan
on 05.07.1983 but on physical verification 26 bags of Urea and 6 bags of
super Phosphate were found and two bags of UPI and 3 bags of super
phosphate were from less in stock.
4. On physical verification, 72 bags of Calcium 25% and 26% were also
found in stock for which no explanation could be given by the licensee.
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5. The B.D.O. prepared recovery memo Ext. Ka-1, regarding 72 bags of
Calcium and it was given in the supurdagi of Sri Ajendra Kumar, who was
present at the time of inspection. An FIR was lodged at Police Station
Sambhal Kotwali, chik report was drawn and G.D. entries were made. After
investigation of the case, charge-sheet was submitted.

6. Charges under Section 3/7 of E.C. Act were framed and read over to the
accused. He denied the charges and claimed the trial.

7. The prosecution has produced PW-1 B.D.O. Surendra Pal Singh and PW-
2 Sri Balwant Singh A.R.O. The genuineness of chik report Ext. Ka-3, site
plan Ext. Ka-4, charge-sheet Ext. Ka-5 and sanctioning order of the District
Magistrate Ext. Ka-6 have been admitted by the defence counsel and the
same has been dispensed with under Section 294 Cr.P.C. Statement under
Section 313 Cr.P.C. has been recorded in which the accused again denied the
charges levelled against him. In defence, DW-1 accused Arvind Kumar,
DW-2 Sri Jishan Ahamad and DW-3 Sri Kishan Lal were examined.

8. DW-1, accused Arvind Kumar stated that his shop was closed on Monday,
on 04.07.1983, he made entries of the closing stock in the stock register on
03.07.1983. On 05.07.1983, Sri Kishan Lal had purchased 7 bags of Urea,
which were kept outside the shop. Besides this, 2 bags of Urea and 3 bags of
super phosphate have been taken by the Sri Jishan Ahamad. He took out the
stock register and the cash memo but Sri Kishan Lal was in a hurry and so he
left one blank cash memo receipt. When the B.D.O. arrived, he took the cash
memo book and the stock register from the accused and he did not counted
the bags sold to Kishan Lal and Jishan Ahamad.

9. The accused, Arvind Kumar DW-1 further stated that 72 bags of Calcium,
which was recovered by the B.D.O. were not recovered from the shop but
they were lying in their tractor trolley parked outside his shop. He stated that
the B.D.O. forced him to make an entry of Calcium bags in the stock register
dated 30.06.1983 and then the B.D.O. himself struck it. The B.D.O. did not
allow him to complaint the receipt.

10. D.W.-2 Jishan Ahamad stated regarding purchase of 2 bags of Urea and
3 bags of super Phosphate from the shop of accused Arvind Kumar. D.W.-3
Sri Kishan Lal stated regarding purchase of 7 bags of Urea from the accused
on the date of occurrence. He also supported the defence taken by the
accused.
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11. The learned Trial Court, after considering the oral and documentary
evidence on record observed that the prosecution has proved his case beyond
reasonable doubt by producing oral and documentary evidences. Stock
register and cash memo which were taken into possession at the time of
inspection are proved as Ext.- 1 and 2. The defence taken by the accused was
an afterthought. Even if the explanation given by the accused regarding the
shortage of fertilizer stock is accepted. There is no satisfactory explanation
regarding other irregularities in the stock. The accused has disowned the
recovery of 72 bags of Calcium and stated that they were recovered from a
tractor trolley parked in front of his shop because no person has come to
claim these 72 bags if these bags were lying in the tractor there must be
some owner and he certainly would have claimed the same. The version of
the accused that the B.D.O. forced him to make entry regarding 72 bags in
the stock register for 30.06.1983 and then cut it of himself was also
considered absurd.

12. After considering oral and documentary evidences placed on record, the
trial court convinced that the accused was not maintaining the record
according to the conditions of the license and at the time of inspection, his
stock was not found according to the stock as shown in the stock register.
The Trial Court convicted the accused for offence under Section 3/7 of E.C.
Act and sentenced him to undergo rigorous imprisonment for 9 months and a
fine of Rs.3000/-. In default of payment of fine, a further imprisonment of 3
months have been awarded.

13. Aggrieved by the order of conviction and sentence, the appeal has been
preferred. It is submitted that the conviction and sentence of the appellant is
against the weight of evidence on record. The sentence is imposed on the
appellant is too severe, therefore, it is prayed that appeal be allowed and the
judgment and order of conviction and sentence be set aside.

14. At the time of argument, learned counsel for the appellant contended that
the offence is of the year 1987, nearly 4 decades old. The accused is now
have been 65 years of age. The offence is technical and regulatory in nature,
involving no violence and moral turpitude. The appellant has already
suffered the trauma of protracted criminal proceedings for an inordinate long
period. He also submitted that the conviction on merit is not under challenge.
The appeal is confined only to the question of sentence.
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15. Learned A.G.A. for the State supported the conviction but submits that
question of sentence may be left to the discretion of the Court.

16. This Court has taken into consideration to the submissions of both the
parties and perused the record. The witnesses P.W.-1 and P.W.-2 produced
by the prosecution fully supported the prosecution version against the
accused. There is no material contradiction in their statements. The appellant
was undergone for a period of 8 days. This Court finds no infirmity or
jurisdictional error in the findings of the Trial Court. The oral and
documentary evidences produced by the prosecution transpires that the
accused has contravened the conditions of the license and also contravened
the provisions of the Fertilizer Control Order, 1957, and thereby committed
an offence punishable under Section 3/7 of E.C. Act. The conviction
recorded by the trial court deserves to be upheld.

17. So far as the sentence is concerned, it is well settled that the sentencing
is the discretionary function of the Court, which must be exercised
judicially, balancing the gravity of the offence with mitigating
circumstances. In State of Punjab Vs. Prem Sagar, (2008) 7 SCC 550, the
Hon'ble Supreme Court held that proportionality on sentence is cornerstone
of criminal jurisprudence and the punishment must be tailored to the facts of
each case. Similarly, in Ali Star Anthony Pareira Vs. State of Maharashtra,
(2012) 2 SCC 648, the Hon'ble Supreme Court reiterated that sentence
imposed should reflect the balance between deterrence and reform,
depending upon the nature of the offence in cases involving old and
technical offences. The Supreme Court has consistently adopted a technical
approach in sentencing, particularly where the accused has faced prolong
litigation, sentence may be reduced, considering the long lapse of time and
age of the accused.

18. As regards the sentence, it is true that Section 7 of the Act prescribes a
minimum period of 3 months of imprisonment, but the proviso empowers
the Court to impose a lesser sentence in special circumstances and for
adequate reasons. In the present case, the following mitigating factors
assumes significance :-

     (a) The offences is non-violent and regulatory.

     (b) The incident occurred in 1987, and the appellant has faced
     criminal proceedings for decades.
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                                    19. The appellant is now elderly, and incarceration at this stage would serve
                                    no meaningful purpose. These mitigating factors constitute special reasons
                                    within the meaning of the said proviso. The ends of justice would be made
                                    by reducing the custodial sentence and enhancing the fine.

                                    20. In view of the foregoing discussion, while the conviction of the appellant
                                    deserves to be sustained, the sentence imposed by the trial court calls for
                                    interference and modification. Accordingly, the appeal is partly allowed in
                                    the following terms :-

                                         "(1) The conviction of the appellant under Section 3/7 of E.C. Act
                                         is affirmed.

                                         (2) The sentence of 9 months of rigorous imprisonment is
                                         modified to the imprisonment already undergone 8 days.

                                         (3) The fine is enhanced from Rs.3000/- to Rs.10000/-. The
                                         enhanced find shall be deposited within a period of two months
                                         from the date of receipt of a certified copy of this judgment. In
                                         default of payment of fine, the appellant shall undergo the default
                                         sentence as directed by the trial court."

                                    January 28, 2026
                                    P. Pandey
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad