# Ballu Mal (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Criminal Appeal No. 1248 of 1985
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ballu-mal-in-jail-v-state-of-u-p-50225
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973
- Section 374(2)
-
Essential
Commodities
Act,
1955
-
Sections-3/7-Challenge
to-ConvictionAppellant shop was raided, it was found
that accused had taken delivery of 30
quintals of rice, instead of distributing the
same he disposed of the same otherwise,
besides 2 quintals 40 kg Ata Flour mill was
found deficient at his shop than that
shown in the stock register-He violated
Clause 4 and 23 of U.P. Food grains and
other Essential Articles Distribution Order,
1977 and of Clause 8 of U.P. Foodgrains
Dealers (Licensing and Restriction on
Hoarding)
Order,
1976
by
violating
Condition No. 3(1)(b) and (c) of the
Licence of Form 'D' issued to him and thus
render himself liable under section 3/7 of
the Essential Commodities Act-In the
instant case, alleged incident took place
about 40 years ago and appellant is not a
previous convict-accused has remained in
custody-appellant alone cannot be held
responsible for long delay in disposal of
this appeal-Hence, conviction of appellant
is upheld but sentence of three months
5 All. Ballu Mal & State of U.P.
495
awarded by the trial court is set aside and
accused-appellant is sentenced to the
period already undergone by him along
with fine of Rs. 5,000/-(Para 1 to 36)

B. It is well settled principle that sentence
must be just but simultaneously the
principle of proportionality between the
crime and punishment cannot be totally
brushed
aside-The
principle
of
just
punishment is the bedrock of sentencing
in
respect
of
a
criminal
offence-A
punishment
should
not
be
disproportionately excessive. (Para 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES
miserably failed to prove that the P.W.-2
Rupesh Kumar Jain had accompanied the
deceased and her husband when they had
gone to see the cinema. Furthermore, if the
various contradictions and the statements of
the
other
prosecution
witnesses
are
examined
then
the
only
inevitable
conclusion is that the prosecution was
trying to bring in P.W.-2, Rupesh Kumar
Jain as a witness who had seen the
deceased and her husband going together
for the last time.

26. The prosecution must prove its
case beyond all reasonable doubt as has
been held by a Full Bench judgement of
this Court in Rishi Kesh Singh & Ors. vs.
The
State
reported
in
AIR
1970
Allahabad 51(FB). The operative portion
of the judgement is reproduced here as
under:-

"177. In accordance with the
majority opinion, our answer to the
question referred to this Full Bench is as
follows: -

The majority decision in 1941 All
LJ 619 = AIR 1941 All 402 (FB) is still
good law. The accused person is entitled to
be acquitted if upon a consideration of the
evidence as a whole (including the
evidence given in support of the plea of the
general exception) a reasonable doubt is
created in the mind of the Court about the
guilt of the accused."

27. The prosecution definitely failed
to prove the case which was taken by it
beyond all reasonable doubt.

28. Under such circumstances, the
appeal is allowed. The judgement and order
dated 22.2.1986 passed by Additional
Sessions Judge, Lalitpur, in S.T. No. 4 of
1985 is set aside.
----------
(2023) 5 ILRA 494
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1248 of 1985

Ballu Mal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Viresh Misra, Sri Radheshyam Yadav
(Amicus Curiae)

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973
- Section 374(2)
-
Essential
Commodities
Act,
1955
-
Sections-3/7-Challenge
to-ConvictionAppellant shop was raided, it was found
that accused had taken delivery of 30
quintals of rice, instead of distributing the
same he disposed of the same otherwise,
besides 2 quintals 40 kg Ata Flour mill was
found deficient at his shop than that
shown in the stock register-He violated
Clause 4 and 23 of U.P. Food grains and
other Essential Articles Distribution Order,
1977 and of Clause 8 of U.P. Foodgrains
Dealers (Licensing and Restriction on
Hoarding)
Order,
1976
by
violating
Condition No. 3(1)(b) and (c) of the
Licence of Form 'D' issued to him and thus
render himself liable under section 3/7 of
the Essential Commodities Act-In the
instant case, alleged incident took place
about 40 years ago and appellant is not a
previous convict-accused has remained in
custody-appellant alone cannot be held
responsible for long delay in disposal of
this appeal-Hence, conviction of appellant
is upheld but sentence of three months
5 All. Ballu Mal & State of U.P.
495
awarded by the trial court is set aside and
accused-appellant is sentenced to the
period already undergone by him along
with fine of Rs. 5,000/-(Para 1 to 36)

B. It is well settled principle that sentence
must be just but simultaneously the
principle of proportionality between the
crime and punishment cannot be totally
brushed
aside-The
principle
of
just
punishment is the bedrock of sentencing
in
respect
of
a
criminal
offence-A
punishment
should
not
be
disproportionately excessive. (Para 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Accused "X' Vs St. of Mah. (2019) 7 SCC 1

2. St. of M.P. Vs Udham & ors. (2019) 10 SCC
300

3. St. of M.P. Vs Vikram Das (2019) 4 SCC 125

4. Md. Giasuddin Vs St. of A.P. (1977) AIR SC
1926

5. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

6. Ravada Sasikala Vs St. of A.P. (2017) AIR SC
1166

7. Jameel Vs St. of U..P (2010) 12 SCC 532

8. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

9. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

10. St. of Punj. Vs Bawa Singh (2015) 3 SCC
441

11. Raj Bala Vs St. of Har. (2016) 1 SCC 463

12. Gopal Singh Vs St. of U.K. (2013) 7 SCC 55

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri Radheyshyam Yadav,
Amicus
Curiae,
appearing
for
the
appellant-accused, learned AGA for the
State and perused the record.

2. The instant appeal arises out of
impugned judgement and order dated
24.07.1985 passed by learned Special
Judge (E.C. Act), Kanpur, in Case No. 09
of 1983 (State vs. Ballumal), under Section
3/7 of Essential Commodities Act, 1955
(hereinafter referred to as 'E.C. Act'), police
station
Chamanganj,
District
Kanpur,
whereby accused-appellant Ballumal has
been convicted under Section 3/7 of E.C.
Act and sentenced to three months rigorous
imprisonment and fine of Rs. 2000/.

3. The factual matrix, unfolded in
prosecution case in brief is, that on
16.01.1983, appellant's shop was raided by
Regional Enforcement Squad along with
S.M.I., M.A. Siddiqui, Marketing Inspector
Ashok Kumar Bajpai, S.K. Pal, Sanad
Kumar
Srivastava
and
Ravi
Narain
Srivastava. At the time of inspection it was
found that the said shop the accused had
taken delivery of 30 quintals of rice on
11.01.1983 as per the order of Chhatriya
Khadya Adhikari Anwaranj for R.F.C.
Godown Marey Company Kanpur. Instead
of bringing such rice to the shop and
distributing the same to the card holders he
disposed of the same otherwise as there
was no entry of the receipt and disposal of
such rice in the registers of the accused.
Besides, 2 quintals 40 Kg Ata Flour Mill
was found deficient at his shop than that
shown in the stock register. In this view of
the matter he allegedly violated Clauses 4
and 23 of U.P. Foodgrains and other
Essential Articles Distribution Order, 1977
and of Clause 8 of U.P. Foodgrains Dealers
(Licensing and Restriction on Hoarding)
Order, 1976 by violating Condition No. 3
496 INDIAN LAW REPORTS ALLAHABAD SERIES
(1) (b) and (c) of the Licence of Form 'D'
issued to him and thus render himself liable
under
Section
3/7
of
the
Essential
Commodities Act.

4. On same day a criminal case was
registered against accused-appellant on the
basis of the complaint of the complainant
Krishna Pal, Marketing Inspector. An FIR
was registered against the appellant and
enteries were made in chik FIR and Kaimi
G.D., the carbon copy of the same was also
prepared in the same process with original.
The investigation was entrusted to S.I.
Jagdamba Bukhsh Singh.

5.

Investigating
Officer,
has
investigated the matter. Prepared site plan
and
recorded
the
statement
of
the
witnesses. He also took and had taken into
possession Sale Register (Ext.II and III),
Stock
Register
(Ext.
IV)
from
the
possession of the accused appellant. Ext.
Ka-11, recovery memo was prepared by
him in this behalf and also recorded the
statements
of
the
members
of
the
Enforcement
Squad.
Sanction
of
prosecution was obtained from District
Magistrate Exhibit Ka-14. After due
investigation, getting credible and clinching
evidence against the accused/ appellant
charge sheet Exhibit Ka-13. was submitted
in the court concerned.

6. The learned trial judge framed
charges under Section 3/7 E.C. Act, which
were read over and explained to the
appellant.
The
appellant
abjured
the
charges. He did not plead guilty and
claimed to be tried.

7. To substantiate the proseuction has
examined the following ocular evidence:-

S.l. No.
Particulars of the Nos.
witness
1
Ashok
Kumar
Bajpai
(marketing
inspector)
Pw- 1
2
Damodar
Lohani
(ARO)
Pw- 2
3
Sukhdeo
Prashad
(marketing
inspector)
Pw- 3
4
S.I.
Krishna
Pal
(marketing
inspector)
Pw- 4
5
Maqsood
Ali
(Public witness)
Pw- 5
6
Mukhtar
Ahmad
(Constable)
Pw- 6
7
S.I.
J.B.
Singh
(I.O.)
Pw- 7
8
Siya Ram Gupta
(handwriting
expert)
Pw- 8

8. Apart from the abovestated ocular
evidence, prosecution has adduced the
following documentary evidence also:-

S.L. Particulars
Ext. Nos.
Proved
By
1
Aata
weightment
with sample
of Aata
Ext.- 1
Pw- 1
2
Sale
Registers
Ext. 2 &3
Pw- 2
3
treasury
chalan
Register
Ext. 4
Pw- 4
4
Relese order
for 30q. rice
Ext. 5
Pw- 2
5
Takpatti of
weightment
Ext. 6
Pw- 2
6
Relese
orders- II
Ext.Ka5A
Pw- 2
7
Supurdgi
Ext.Ka-7
Pw- 1
5 All. Ballu Mal & State of U.P.
497
Nama
8
Recovery
Memo
Ext. Ka- 8 Pw- 4
9
Sale
Registers- II
& III
Ext. 2 &
3
Pw- 5
10
stock
Registers-
IV
Ext. Ka-
11
Pw- 4
11
Prosecution
Sanction
Ext. Ka-
14
Pw- 7
12
Chik FIR
Ext. Ka- 9 Pw- 6
13
Handwriting
expert
report
Ext. Ka-
16 & 17
Pw- 8
14
Chargesheet
Ext. Ka-
13
Pw- 7
15
Copy
of
kaimi G.D.
Ext. Ka-
10
Pw- 7

9. After completion of the prosecution
evidence accused/ appellant was examined under
Section 313 Cr.P.C. in which the accused/
appellant stated that he is falsely implicated. He
denied the prosecution evidence.

10. The appellant adduced following
defence witnesses as ocular evidence:-

S.l.
No.
Particulars of the
witness
Nos.
1
Kushal Das
Dw- 1
2
Abdul Hakim
Dw- 2
3
Rajendra
Prashad
(handwriting expert)
Dw- 3

11. After hearing and analysing
evidence on record, accused/ appellant was
convicted by the trial court under Section
3/7 of E.C. Act and sentenced as stated
above. Being aggrieved by the impugned
judgement and order dated 24.07.1985,
accused-appellant has preferred the present
appeal.

12. A careful scrutiny of evidence of
both the parties show that PW-1 Ashok
Kumar Bajpai, Marketing Inspector and
P.W. 4 Sri Krishna Pal, Marketing
Inspector have deposed in clear and
categorical terms that on 16.01.1983 they
along with other members of squad had
conducted inspection and at the time of
inspection on 16.01.1983, the stock of Aata
wholesale Mill at the shop of the accused
as per the stock register was 14 Quintals 25
Kgs., but on physical verification it was
found to be 7 quintals 50 Kgs. On
16.01.1983 he made a sale of 4 quintals 35
Kgs. Ata and as such the Ata was found to
be deficient on physical checking to the
extent of 2 quintals 40 Kgs. Certain other
stocks of sugar and wheat were also there
but the mention of the same is not
necessary. The accused has taken delivery
of 30 quintals of rice on 11.01.1983 from
the Goverment Godown for being sold to
be card holders but he did not make any
entry regarding it in his stock register.
Takpatti of the weighment of the Ata whole
Mill prepared at the time of inspection is
Ext. Ka-1. P.W. 1 Ashok Kumar Bajpai
denied that some Ata which had got
moisture was kept in the cabin of the
accused which the Enforcement Squad did
not take into account. Ext. Ka-7 is the
Supurdigi Nama through which the stock of
the shop of the accused had been given in
the custody of Mool Chand Hans Raj,
which has been proved by P.W. 4 Sri
Krishan Pal. Ext. Ka-8 is the Fard of
recovery prepared at the spot by P.W.4.

13. P.W. 2 A.R.O. Damodar Lohani,
has stated in his statement that the accused
has come to his office and had filled a
demand memo (Registration Memo) for 30
quintals rice. He has proved the same
which is Ext. Ka-3. It contains the signature
of the accused and he has also admitted his
498 INDIAN LAW REPORTS ALLAHABAD SERIES
signatures on it. This witness has also
proved the photocopy of the Treasure
Challan of Rs. 6,120/- deposited by the
accused for getting such rice, which is Ext.
Ka-4. This witness prepared the release
order for Marey Company government
Godown for releasing 30 qntls rice to the
accused. He has proved the release order
Ext. Ka-5. It is also contains the signature
of the appellant-accused Ballu Mal which
had been attested by this witness.

14. P.W.3 Sukhdeo Prasad has stated
in his statement on that date i.e. on
11.01.1983, he was on duty at Marey
Company
Government
Godown,
the
appellant-accused Bulla Mal had brought to
him the release order Ext. Ka-5 for the
release of 30 quintals. rice and after
obtaining the signature of the appellantaccused on the release order and after
comparing the same with his signature
attested by the A.R.O. Sri Lohani, he issued
30 quintals rice to the appellant-accused. A
Takpattin of the weighment of the rie
released to the accused had been prepared
and the same is Ext. Ka-7.

15. P.W. 5 Maqsood Ali is a public
witness who has come to say that his ration
card was attached to the shop of the
accused but he did not take any ration since
13.01.1983 from the shop of the appellantaccused. He has further stated that the entry
dated 13.01.1983 in the sale register (Ext.
II) of the appellant/ accused at serial no. 26
neither bears his signature, nor of his son.

16. P.W. 6 Constable Mukhtar Alam
is a formal witness who has proved the
Chik F.I.R. Ext. Ka-9 written in the police
station on the basis of the Fard of recovery
filed by Marketing Inspector Sri Krishan
Pal on 16.01.2023, which has been marked
Ext. Ka-9. This witness has also been
lodged the FIR on 16.01.1983 at 10:45
hours and entry has been made in G.D. No.
32 (Ext. Ka-10).

17. P.W.7 Jagdamba Bukhsh Singh is
the Investigating Officer of this case, he
had recorded the statements of the
members of the Enforcement Squad and
had taken in possession Sale Register (Ext.-
II and III) and Stock Register (Ext-IV).

18. P.W. 8 Siya Ram Gupta, who is
the Hand Writing Expert has got compared
the
disputed
two
signatures
of
the
appellant-accused on the front of release
order Ext. Ka-5 and Ext. Ka 5A. He has
opined that all the disputed signatures of
the
appellant-accused
tally
with
his
specimen signature and that they have been
made by one and the same person. He also
proved the photos taken in this behalf Ext
Ka-16 and his report Ext. Ka-17.

19. The defence of accused-appellant
was rightly negated by the trial court. It is
clear from evidence that act of accusedappellant has violated provisions of clause
4 of U.P. Foodgrain and other Essential
Articles Distribution Order, 1977. Learned
trial court has discussed entire evidence
and found that act of accused-appellant
contravenes provisions of Clause 4 of U.P.
Food grains and other Essential Articles
Distribution Order, 1977 Act and thus,
liable to be convicted under Section 3/7 of
E.C. Act. After considering entire evidence
on record, it is apparent that conviction of
accused-appellant is based on evidence and
suffers no factual, illegality.

20. Learned Amicus Curiae for the
appellant has not disputed the findings
rendered by learned trial court regarding
conviction
of
accused-appellant
and
confined his arguments only regarding
5 All. Ballu Mal & State of U.P.
499
sentence. However, I have gone through
the entire evidence carefully.

21. So far as question of sentence is
concerned, it was argued by learned
counsel for accused-appellant that alleged
incident occurred on 11.01.1983 and since
then a period of 40 years has passed.
Accused-appellant has no criminal history
and that he has faced the sword of
proceedings of this case for about 40 years.
It was submitted that in view of above
stated facts and circumstances, it would not
be appropriate to send the accusedappellant in judicial custody at this stage.

22. Learned A.G.A. has opposed and
argued that keeping in view that a period of
40 years has passed since the incident,
appropriate sentence may be awarded.

23. In historical backdrop, Indian
parliament
has
not
laid
down
any
sentencing
policy,
though
Malimath
Committee (2003) and Madhava Menon
Committee (2008) has asserted the need of
sentencing
policy
in
changing
circumstances of the society. So, the Courts
are dependant on the precident laid down
by the Supreme Court.

24. Principle of sentencing has been
an issue of concern before the Supreme
Court in many cases and tried to provide
clarity on the issue. Apex Court has time
and again cautioned against the cavalier
manner considering the way sentencing is
dealt with High Courts and Trial Courts.

In Accused ''X' vs. State of
Maharastra (2019) 7 SCC 1) "the Apex
Court has held that" It is established that
sentencing
is
a
socio-legal
process,
wherein a Judge finds an appropriate
punishment for the accused considering
factual circumstances and equities. In light
of the fact that the legislature peroxided for
discretion to the Judges to give punishment,
it becomes important to exercise the same
in a principled manner."

"12. Sentencing for crimes has to
be analysed on the touchstone of three tests
viz.
crime
test,
criminal
test
and
comparative proportionality test. Crime
test involves factors like extent of planning,
choice of weapon, modus of crime, disposal
modus (if any), role of the accused, antisocial or abhorrent character of the crime,
state of victim. Criminal test involves
assessment of factors such as age of the
criminal, gender of the criminal, economic
conditions or social background of the
criminal, motivation for crime, availability
of defence, state of mind, instigation by the
deceased or any one from the deceased
group, adequately represented in the trial,
disagreement by a Judge in the appeal
process,
repentance,
possibility
of
reformation, prior criminal record (not to
take pending cases) and any other relevant
factor (not an exhaustive list).

13. In State of Madhya Pradesh
vs. Udham and others (2019) 10 SCC 300
the Apex Court has held" we may note that
under the crime test, seriousness needs to
be ascertained. The seriousness of the
crime may be ascertained by (i) bodily
integrity of the victim; (ii) loss of material
support
of
amenity;
(iii)
extent
of
humiliation; and (iv) privacy breach."

25. It is also notable that in State of
Madhya Pradhesh vs. Vikram Das
(2019) 4 SCC 125".... where minimum
sentence is provided for, the Court cannot
impose less than minimum sentence."

26. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
500 INDIAN LAW REPORTS ALLAHABAD SERIES
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage punishment
is thus a relic of past and regressive times. The
human today vies sentencing as a process of
reshaping a person who has deteriorated into
criminality and the modern community has a
primary stake in the rehabilitation of the
offender as a means of a social defence. Hence
a therapeutic, rather than an 'in terrorem'
outlook should prevail in our criminal courts,
since brutal incarceration of the person
merely produces laceration of his mind. If you
are to punish a man retributively, you must
injure him. If you are to reform him, you must
improve him and, men are not improved by
injuries."

27. The term 'Proper Sentence' was
explained in Deo Narain Mandal Vs. State
of UP [(2004) 7 SCC 257] by observing
that
Sentence
should
not
be
either
excessively harsh or ridiculously low.
While
determining
the
quantum
of
sentence, the court should bear in mind the
'principle of proportionality'. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into account. Discretion of Court in
awarding sentence cannot be exercised
arbitrarily or whimsically.

28. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
5 All. Ballu Mal & State of U.P.
501
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

28. Keeping in view the facts and
circumstances of the case and also criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive, this Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. Accused-appellant Ballu Mal has
been convicted under Section 3/7 of E.C.
Act. Section 7 of E.C.Act which reads as
under:-

[(1) If any person contravenes
any order made under Section 3,―

(a) he shall be punishable,―

(i) in the case of an order made
with reference to clause (h) or clause (i) of
sub-section (2) of that section, with
imprisonment for a term which may extend
to one year and shall also be liable to fine,
and

(ii) in the case of any other order,
with imprisonment for a term which shall
not be less than three months but which
may extend to seven years and shall also be
liable to fine:

Provided that the court may, for
any adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than three months;

(b) any property in respect of
which the order has been contravened shall
be forfeited to the Government;

(c) any package, covering or
receptacle in which the property is found
and any animal, vehicle, vessel or other
conveyance used in carrying the property
shall, if the court so orders, be forfeited to
the Government.

(2) If any person to whom a
direction is given under clause (b) of subsection(4) of section 3 fails to comply with
the direction, he shall be punishable with
imprisonment for a term which shall not be
less than three months but which may
extend to seven years and shall also be
liable to fine:

Provided that the court may, for
any adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than three months.

(2A) If any person convicted of
an offence under sub-clause (ii) of clause
(a) of sub-section (1) or under sub-section
(2) is again convicted of an offence under
the same provision, he shall be punishable
with imprisonment for the second and for
every subsequent offence for a term which
shall not be less than six months but which
may extend to seven years and shall also be
liable to fine:
502 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that the court may, for
any adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than six months.

(2B) For the purposes of subsections (1), (2) and (2A), the fact that an
offence under sub-clause (ii) of clause (a)
of sub-section (1) or under sub-section (2)
has caused no substantial harm to the
general public or to any individual shall be
an adequate and special reason for
awarding a sentence of imprisonment for a
term of less than three months or six
months, as the case may be.

[(3) Where a person having been
convicted of an offence under sub-section
(1) is again convicted convicted of an
offence
under
that
sub-section
for
contravention of an order in respect of an
essential commodity, the court by which
such person is convicted shall, in addition
to any penalty which may be imposed on
him under that sub-section, by order, direct
that that person shall not carry on any
business in that essential commodity for
such period, not being less than six months,
as may be specified by the Court in the
Order.]

32. It is well settled principle that
sentence must be just but simultaneously
the principle of proportionality between the
crime and punishment cannot be totally
brushed aside. The principle of just
punishment is the bedrock of sentencing in
respect of a criminal offence. A punishment
should not be disproportionately excessive.
The concept of proportionality allows a
significant discretion to the court but the
same has to be guided by certain principles.
In certain cases, the nature of culpability,
the antecedents of the accused, the factum
of age, the potentiality of the convict to
become a criminal in future, capability of
his reformation and to lead an acceptable
life in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in mind
the nature of the offence, the relationship
between the parties and attractability of the
doctrine of bringing the convict to the value
based social mainstream may be the
guiding factors. Needless to emphasize,
these are certain illustrative aspects put
forth in a condensed manner.

33. It has also been observed by the
Apex Court that there can neither be a
straitjacket formula nor a solvable theory in
mathematical exactitude. It would be
dependent on the facts of the case and
rationalised judicial discretion. Neither the
personal perception of a Judge nor self
adhered moralistic vision nor hypothetical
apprehensions should be allowed to have
any play. For every offence, a drastic
measure cannot be thought of. Similarly, an
offender cannot be allowed to be treated
with leniency solely on the ground of
discretion vested in a court. The real
requisite is to weigh the circumstances in
which the crime has been committed and
other concomitant factors which we have
indicated hereinbefore and also have been
stated in a number of pronouncements by
this Court. On such touchstone, the
sentences are to be imposed. The discretion
should not be in the realm of fancy. It
should be embedded in the conceptual
essence of just punishment. In Gopal
Singh v. State of Uttrakahand (2013) 7
SCC 545, the Apex Court elaborating the
sentencing that, while imposing sentence,
has to keep in view the various complex
matters in mind. In respect of certain
offences, sentence can be reduced by
giving adequate special reasons but the
5 All. Raje @ Rajesh @ Santosh Kumar Vs. State of U.P.
503
special reasons have to rest on real special
circumstances.

34. In the instant case, alleged
incident took place about 40 years ago and
appellant is not a previous convict and that
accused-appellant alone cannot be held
responsible for long delay in disposal of
this appeal. It was stated for some days,
accused-appellant has remained in custody.
Considering all aspects of the matter, no
useful purpose would be served by sending
accused-appellant in to judicial custody to
suffer imprisonment of three months at this
stage, rather it appears that ends of justice
would met it the sentence of three months
imprisonment awarded by the trial court be
set
aside
and
accused-appellant
be
sentenced to the period already undergone
by him along with fine of Rs. 5,000/-.

35. Accordingly, conviction of
accused-appellant Ballu Mal is upheld, but
sentence of three months awarded by the
trial court is set aside and accusedappellant is sentenced to the period already
undergone by him along with fine of Rs.
5,000/- Accused-appellant is directed to
deposit fine of Rs. 5,000/- within forty five
days from today. In default of payment of
fine, accused-appellant shall undergo three
months imprisonment.

36. Resultantly, the instant appeal is
party allowed with following directions:-

(i) The judgment of conviction
dated 27.04.1985 is confirmed though the
sentence awarded of three months Rigorous
Imprisonment is modified to the period
already undergone by appellant.

(ii) The amount of fine of
Rs.2,000/- is increased to Rs.7,000/- which
shall be paid by appellant within six weeks
from the date of judgment. In default,
thereof, appellant has to undergo an
additional simple imprisonment of two
months.

(iii) A copy of judgment be sent
to
Court
concerned
for
necessary
information and compliance.

(iv)
Trial
court's
recod
be
remitted back forthwith.

37.
 The Court
appreciate
the
assistance rendered by Sri Radheyshyam
Yadav, learned Amicus Curiae. The State
Government is directed to pay Rs.5000/- as
remuneration to Sri Radheyshyam Yadav at
the earliest.
----------
(2023) 5 ILRA 503
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1399 of 2010

Raje @ Rajesh @ Santosh Kumar
 ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Dharmendra Pratap Singh, Sri Sushil
Tiwari, Sri Shyam Sunder Mishra

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 376, 342 &
506 - Challenge to-Conviction-Statement
of the victim (PW-1) corresponds with the
site plan as shown where the victim
allegedly raped at the tubewell of the
accused person in which the cot is
marked-delay is self-explanatory as the