Savaldas Ghumamal vs State of Gujarat

Z.K. Saiyed, J.—The present appeal has been preferred by the Appellant-original convict (hereinafter referred to as ''the Appellant'') u/s 374(2) of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 31st March, 1998 passed by learned Special Judge, Sabarkanth at Himmatnagar, in Summary Case No. 11 of 1993, whereby he has been held guilty for the offence punishable u/s 3(2)(d) and Section 7(a)(2) of the Essential Commodities Act, 1955 (hereinafter referred to as ''the Act'').

Earlier on 09th March, 2011, after hearing the learned Counsel for the parties at length, called for the Report of the Probation Officer.

Pursuant to the order dated 09th March, 2011, Office has placed on record Report of Mr. P.J. Kharadi, Chief Probation Officer, Himmatnagar.

Heard Mr. Haresh Joshi, learned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Today also, Mr. Joshi has contended that the Appellant is an innocent person and he is not the habitual offender. The second fold of argument is that the alleged wrong was traced in the month of February, 1993; criminal complaint was filed in the month of July, 1993; the judgment and order was passed in the year 1998 and today after a lapse of 13 years, present appeal is listed for final hearing before this Court. He, therefore, contended that this Court may give benefit of Section 4 of the Probation of Offenders'' Act to the Appellant and he may not be asked to go to prison after a lapse of about 18 years from the date of incident. He has placed reliance on various decisions of this Court as well as the Apex Court and submitted that merely because the legislature has provided the minimum punishment of three months, it is not always necessary that the Appellant should be sent to jail and he can be given advantage of Section 4 of the Probation of Offenders'' Act.

I have perused the Report of the Chief Probation Officer, Himmatnagar as well as I have also perused several decisions of the Apex Court. The Apex Court clearly goes to indicate in some of its decisions that while dealing with the sentence imposed upon the accused, the Court should consider the category of case. The Court is aware that protraction of trial or delay in hearing of criminal appeal normally would not come in the way of imposition of sentence and that by condition, would not be sufficient to reduce the quantum of punishment imposed. But considering the circumstances that may be pointed out to the Court, the lesser punishment can be imposed by the Court. Ultimately, the imposition of punishment, period of punishment and substantive sentence should be able to carry the proper message to the society. But in each case, the Court should not be enthusiastic to see that each order of punishment should deter the members of the society. I am of the opinion that the learned trial Judge ought to have thought whether the Appellant should be given any benefit of Section 4 of the Probation of Offenders'' Act or not.

In view of aforesaid observations and discussion, the present appeal is hereby partly allowed. The judgment and order of conviction dated 31st March, 1998, passed by the learned Special Judge, Sabarkantha at Himmatnagar, in Summary Case No. 11 of 1993 is confirmed.

The Appellant is directed to execute a bond of Rs. 10,000/- (Rupees Ten Thousand only) u/s 4 of the Probation of Offenders'' Act read with Section 361 of the Code of Criminal Procedure, 1973, with one surety of the like amount for a period of two years, failing which also, the learned trial Court shall issue a non-bailable warrant of arrest against the Appellant to serve the sentence imposed by the learned trial Court. The order of substantive sentence imposed shall remain under suspension till the period of bond i.e. for two years, and it shall become inoperative on completion of such period of two years. If there is breach of any of the conditions of bond to be executed u/s 4 of the Probation of Offenders'' Act read with Section 361 of the Code of Criminal Procedure, 1973, by the Appellant-original convict, the learned trial Court shall be at liberty to issue a non-bailable warrant of arrest against the Appellant-original convict to serve the sentence imposed by the learned trial Court.

The bail bond executed by the Appellant-original convict pending appeal shall stand discharged on the date on which the Appellant-original convict executes the bond u/s 4 of the Probation of Offenders'' Act read with Section 361 of the Code of Criminal Procedure, 1973, before the learned trial Court.