Judgment:
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction and the order of sentence, dated 5.10.96, rendered by the Court of Special Judge, Yamuna Nagar, at Jagadhri, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 7 of the Essential Commodities Act (hereinafter to be called as Act only), and sentenced him to undergo rigorous imprisonment for a period of 2 years, and to pay a fine of Rs. 2,000/-, in default thereof, to further undergo rigorous imprisonment for a period of 6 months.
2. The facts, in brief, are that in pursuance of the orders passed by the Deputy Commissioner, Yamuna Nagar, Shri S.C. Jain, Additional Deputy Commissioner-cum-Chief Executive Officer D.R.D.A., Yamuna Nagar (as he then was), alongwith Deputy Superintendent of Police, Head Quarters, Krishan Kumar, and Krishan Gopal, Accountant, carried out joint inspection of M/s Madan Gas Indane Distributors, Yamuna Nagar. The stock register duly signed by Madan Gopal accused, the owner of the agency, and all the vouchers from 1.4.1993 to 27.4.1993, were taken into possession. The godown of the agency situated in Gobindpuri, was also inspected and the filled cylinders were counted physically. On account of such inspection, the stock register was found to be incomplete from 24.4.1993 to 27.4.1993; 306 refills received on 25.04.1993, and 306 refills received on 27.04.1993, were not entered in the stock register, as per the stock register, on 1.4.1993, 238 cylinders (refills) had been shown issued to the consumers, whereas, no vouchers had been issued on 1.4.1993; the number of refills issued, as per the vouchers and as per the stock register did not tally; the distribute' had put, in use, more than one voucher books, for issuance, to the consumers, on the same dates; as per the entries of stock register, the balance of refills at the time of inspection should have been 187, whereas as per the recorded statement of the salesman of the godown, the number was 81 and, in this way, the discrepancy of 106 cylinders was found. Four refill vouchers had been issued on 24.4.1993, and their dates of booking had also been shown as 24.04.1993. Shri S.P. Jain, then sent a letter Ex.PB to the Deputy Commissioner, Yamuna Nagar, with a copy to the Superintendent of Police, Yamuna Nagar, along with the difference shown. The records aforesaid, were taken into possession by the Police from Krishan Gopal, Accountant, through recovery memo Ex.PC. The accused gave a writing Ex.PF, justifying the irregularities in his record. Formal first information report, Ex.PG, was recorded on the basis of the letter, received in the Police Station, from the Additional Deputy Commissioner, Yamuna Nagar. During the course of investigation, documents were taken into possession by Sub Inspector Piare Lal, vide recovery memo Ex.PC. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 7 of the Act, was framed against the accused.
4. The prosecution, in support of its case, examined Biram Singh, Constable (PW1), Sub Inspector Nar Singh (PW2), Shri S.C. Jain, Additional Deputy Commissioner (PW3), Krishan Kumar, Deputy Superintendent of Police (PW4), Ramesh Kumar (PW5), and Sub Inspector Piare Lal (PW6). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 Cr.P.C, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him mat some record of the agency, was taken into possession, which could not be completed by the employees, as he had to go to his village, to attend to his ailing father. It was further stated by him, that the stock register, on account of this reason, remained lying in the almirah. He further stated that a truck load of 306 filled cylinders, was standing in front of his godown, which had not been entered. It was further stated by him that in the godown the cylinders were complete, as per the stock. It was further stated by him that the witnesses counted only the cylinders which were filled. There were also some filled cylinders, which were defective, and they were also not counted. It was further stated by him that the empty cylinders were also not counted. The witnesses did not prepare the inventory of total cylinders inspite of his request. It was further stated by him that at his agency there were about 6500 customers, who were having gas connections, and according to the rules, he could keep 800 filled cylinders in his godown, but due to some unavoidable circumstances, the inventory was below 400. It was further stated that him that there was no irregularity, at any stage, at his agency. It was further stated by him, that he was falsely implicated due to rivalry with his partners. It was further stated by him that the witnesses had taken into possession the permit file, which they did not show in the record. No evidence, in defence, was led by the accused.
6. After hearing counsel for the parties, and on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
7. Feeling aggrieved, the instant appeal, was filed by the appellant.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, did not challenge the conviction, recorded by the trial Court. He even could not successfully challenge the same, as the trial Court, on due appreciation of the cogent, convincing and reliable evidence of Shri S.C. Jain, PW3, at the relevant time, the Additional Deputy Commissioner, Yamuna Nagar, and Krishan Kumar, Deputy Superintendent of Police, PW4, who accompanied him, at the time of inspection of the premises of the accused, came to the conclusion that the discrepancies, referred to above, were found, in the stock-register of the accused. There was no reason, on the part of the witnesses to depose falsely, as they had no grudge or enmity, against the accused. The findings of the trial Court, to the effect, that the accused committed the offence, punishable under Section 7 of the Act, do not suffer from any illegality or infirmity. The trial Court, was, thus, right, in recording conviction of the accused, for the offence, punishable under Section 7 of the Act.
10. The Counsel for the appellant, however, submitted that there was no allegation, against the accused, that he was selling the gas cylinders in the open market. He further submitted that only discrepancies in the record of the accused, were found, by the inspection team. He further submitted that there was, thus, only technical violation of the provisions of the notification dated 12.02.1987, issued under Section 5 of the Haryana Commodity Price Marking and Display Order 1975 and Clause 4 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988. He further submitted that the appellant is not a previous convict, and is handicapped. He further submitted that the appellant has been facing the criminal proceedings since 4.5.93. He further submitted that the Court may consider the release of the appellant on probation of good conduct. He also placed reliance on Niranjan Dass v. The Slate of Punjab 1992 (2) R.C.R. (Criminal) 104, Shiv Parshadv. State of Haryana 1997 (4) R.C.R. (Criminal) 117, Ms Maya Ram and Sons v. State of Haryana 2003 (3) Crl.C.C. 544, Dharam Pal v. State of Haryana 2004 (1) Crl.C.C. 465, Virender Kumar v. State of Haryana 2004 (2) R.C.R. (Criminal) 775, and Radhey Sham v. State of Haryana 2006 (4) R.C.R. (Criminal) 260, in support of his contention. The submission of the Counsel for the appellant, in this regard, appears to be correct. It is evident from the facts of the case that the accused was only found to have technically violated the provisions of the notification and the order, referred to above. Only discrepancies in the record and the stock register were found. There was no allegation, against the accused, that he was selling the gas cylinders, in the open market, so as to deprive the genuine consumers for monetary gain. The appellant is not a previous convict. There is nothing, on the record, that he committed any offence of the like nature, after the registration of the first information report, against him. He is also handicapped. In Niranjan Dass's Shiv Parshad's. M/s Maya Ram and Sons'. Dharam Pals Virender Kumar's, and Radhey Sham's cases (supra), the accused was convicted for the offence, punishable under Section 7 of the Act and sentenced by the trail Court, but he was ordered to be released, on probation of good conduct, on the ground, that he had been facing the protracted criminal proceedings. There is, therefore, precedental profusion, on the point. Keeping in view the facts and circumstances of the case, the nature of offence, the factum that the appellant is handicapped and has been facing the protracted criminal proceedings since 4.5.93, the date of registration of criminal case i.e. for the last more than 15 years, in my considered opinion, it is a fit case, in which, he should be granted the concession of provisions of Section 4 of the Probation of Offenders Act.
11. For the reasons recorded above, the appeal is partly accepted. The judgment of conviction, recorded by the trial Court, is upheld. The order of sentence, is set-aside, and instead, the appellant is directed to be released on probation of good conduct, for a period of three years, on his furnishing personal bond, in the sum of Rs. 10,000/- with one surety in the like amount, to appear and receive sentence, as and when called upon, during this period, and, in the meantime, to maintain peace and be of good behaviour. The appellant shall also furnish an undertaking that he shall not commit any offence, of the like nature, during the period of probation. The appellant shall also pay costs of the proceedings to the tune of Rs. 50,000/-. The probation bonds and the undertaking, shall be furnished by the appellant, within a period of 2 months, from today, in the Court of Chief Judicial Magistrate, Yamunanagar at Jagadhri. The costs, shall also be deposited, in the said Court, within the stipulated time. In case, the appellant, failed to furnish the probation bonds, and the undertaking, and deposit the costs, within the time-frame, the Court of the Chief Judicial Magistrate, shall be at liberty to proceed, in accordance with the provisions of law, to comply with the judgment, promptly.