# Mohsin Ali Khan (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Criminal Appeal No.220 of 1991
- **Bench:** Shailendra Kumar Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohsin-ali-khan-in-jail-v-state-of-u-p-44322
- **Pages:** 4

## Headnote

Criminal Law- The Essential Commodities
Act-
Section
3/7-
Conviction
and
sentenced to undergo six months' rigorous
imprisonment- Modification of Sentence-
Proportionate punishment- The appellant
has spent in jail 86 days i.e. about half
sentence awarded by the learned trial
court- The appeal is very old one and the
sentence is only for six months and more
than 26 years have elapsed- There is
nothing on record that the appellant has
any criminal history. Prosecution has
failed to bring on record any material
which disqualifies the appellant from his
sentence being modified- The conviction
of the appellant by impugned judgment
and order is hereby maintained. His
sentence is reduced to the period of
imprisonment already undergone by him
with fine of Rs.20,000/-.

Settled
law
that
sentence
should
be
commensurate with the gravity of the
offence and the manner of its commission as
well as other mitigating circumstances.
Where the accused has served out half the
sentence, the offence is not grave or heinous
and
much
time
has
elapsed,
hence
appropriate to modify the sentence with the
period
undergone
in
judicial
custody
alongwith
enhancement
of
fine
while
maintaining the conviction. ( Para 16, 17,
18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon :-

## Text

3 All. Mohsin Ali Khan Vs. State of U.P.
339
and to maintain healthy atmosphere in
the society, which is the most important
and essential factor for a civilized
society.

11- With the aforesaid observations
and directions, this application is disposed
of.

12- Registrar General of this Court is
directed to communicate the facsimile of
this order to the Secretary, Ministry of
Information and Technology, Government
of India, New Delhi, Chief Secretary, State
of U.P. and the concerned Court below
within a week.
----------
(2022)03ILR A339
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2017

BEFORE

THE HON'BLE SHAILENDRA KUMAR
AGRAWAL, J.

Criminal Appeal No.220 of 1991

Mohsin Ali Khan ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.K. Verma, Sri Mithilesh Kumar Gupta

Counsel for the Respondent:
A.G.A.

Criminal Law- The Essential Commodities
Act-
Section
3/7-
Conviction
and
sentenced to undergo six months' rigorous
imprisonment- Modification of Sentence-
Proportionate punishment- The appellant
has spent in jail 86 days i.e. about half
sentence awarded by the learned trial
court- The appeal is very old one and the
sentence is only for six months and more
than 26 years have elapsed- There is
nothing on record that the appellant has
any criminal history. Prosecution has
failed to bring on record any material
which disqualifies the appellant from his
sentence being modified- The conviction
of the appellant by impugned judgment
and order is hereby maintained. His
sentence is reduced to the period of
imprisonment already undergone by him
with fine of Rs.20,000/-.

Settled
law
that
sentence
should
be
commensurate with the gravity of the
offence and the manner of its commission as
well as other mitigating circumstances.
Where the accused has served out half the
sentence, the offence is not grave or heinous
and
much
time
has
elapsed,
hence
appropriate to modify the sentence with the
period
undergone
in
judicial
custody
alongwith
enhancement
of
fine
while
maintaining the conviction. ( Para 16, 17,
18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon :-

1. Sevaka Perumal etc. Vs St. of T.N, AIR 1991
SC 1463

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

(Delivered by Hon'ble Shailendra Kumar
Agrawal, J.)

1. This Criminal Appeal has been
preferred by the appellant Mohsin Ali Khan
against the judgment and order dated
07.02.1991 passed by the learned Special
Judge, Ghazipur in Criminal Case No.9 of
1990 (State Vs. Mohsin Ali Khan), arising
out of case crime no.122 of 1989, under
Section 3/7 of the Essential Commodities
Act, P.S. Kasamabad, District Ghazipur,
whereby the appellant was convicted and
sentenced under Section 3/7 of the
Essential Commodities Act for six months'
rigorous imprisonment.
340 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Filtering out the unnecessary
details, the prosecution story in brief is that
a complaint was jointly made to the District
Magistrate, Ghazipur by Sri Abdul Sattar
Nomani,
President,
Nagar
Congress
Committee, Bahadurganj and Sri Imtiyaz
Ahmad, Mohd. Murtaza, Mohd. Zakariya,
A. Salam, Shivnath, Gayasuddin, Members
of Town Area Bahadurganj against the
appellant Mohasin Ali Khan, Dealer of Fair
Price Shop Bahadurganj regarding the
irregularities
committed
by
him
in
distribution of sugar and on the basis of
said complaint, an enquiry was conducted
by
the
Supply
Inspector
regarding
distribution of sugar. Finding certain
irregularities in the distribution of sugar by
making forged entries in the distribution
register and black-marketing of the same, a
report Ex. Ka-1 was made to the In-charge,
Police
Chowki,
Bahadurganj,
District
Ghazipur. As the appellant/ Dealer of Fair
Price Shop by showing forged sale of
sugar, committed black-marketing, hence
he has violated the provisions of U.P. Food
Grains
and
other
Essential
Articles
Distribution Order, 1977, which is an
offence under Section 3/7 of the Essential
Commodities Act, 1955 and it was
requested to lodge an FIR against the
appellant Mohasin Ali Khan.

3. On the basis of the written report
Ex. Ka-1, a case in crime no.122 of 1989
was registered under Section 3/7 of the
Essential Commodities Act against the
appellant and the investigation was handed
over to Sub-Inspector Gyan Prakash
Tripathi.
The
Investigating
Officer
recorded the statements of the witnesses
under Section 161 Cr.P.C., prepared the
site plan Ex. Ka-41 of the place of
occurrence, obtained sanction Ex. Ka-42
from the District Magistrate, Ghazipur and
after
completing
other
necessary
formalities, submitted charge sheet Ex. Ka43 against the appellant.

4. Thereafter, the learned trial judge
recorded the statement of the appellant
regarding the offence under Section 3/7 of
the Essential Commodities Act, in which he
has accepted that on 26.03.1989 and
08.04.1989 he was the licensee of Fair
Price Shop, Bahadurganj, District Ghazipur
and denied the factum of enquiry done by
the Supply Inspector. He has also denied
the factum of prosecution that any enquiry
was made by the Supply Inspector on
26.03.1989 or 08.04.1989, in which it was
found that the names of 18 card holders
were twice entered in the same month
regarding distribution of sugar and in the
cards of some card holders, entries
regarding distribution of sugar have not
been made. He has also stated that this case
has been initiated against him due to
enmity by his enemies in collusion with the
Supply Inspector.

5. To prove its case, the prosecution
has examined as many as three witnesses
namely PW-1 Yaar Mohammad; PW-2
Ram Daras Singh, Supply Inspector; and
PW-3
S.I.
Gyan
Prakash
Tripathi,
Investigating Officer and also got proved
the documents by respective witnesses as
written report Ex. Ka-1, chik FIR Ex. Ka22, copy of G.D. Ex. Ka-23, site plan Ex.
Ka-41, sanction of District Magistrate,
Ghazipur Ex. Ka-42, charge sheet Ex. Ka43 and the pages of distribution register as
Ex. Ka-26, Ka-27, Ka-20 & Ka-21 and the
ration cards as Ex. Ka-2 to Ka-19.

6. The accused-appellant in his
statements u/s 313 Cr.P.C. has denied all
material facts of the prosecution and stated
that this case has been initiated against him
due to enmity.
3 All. Mohsin Ali Khan Vs. State of U.P.
341

7. After scrutinizing and appreciating
the evidence available on record, the
learned trial court recorded a finding of
conviction of accused-appellant Mohsin Ali
Khan for the offence under Section 3/7 of
the Essential Commodities Act.

8. Heard Sri S.K. Verma, learned
counsel for the appellant and Ms. Anjum
Haq, learned A.G.A. for the State.

9. Learned counsel for the appellant
did not make any argument regarding merit
of the case and did not challenge the
findings recorded by the learned trial court.
Learned counsel for the appellant at the
very outset conceded that so far as
conviction
part
of
the
appellant
is
concerned, the opinion by the learned trial
court does not suffer from any error.

10. Learned counsel for the appellant
did not harp much so far as the conviction
of the appellant under Section 3/7 of the
Essential Commodities Act is concerned,
hence
the
detailed
examination
of
evidences is hereby eschewed. The main
thrust of the arguments of the learned
counsel for the appellant is that the
sentence be reduced to the period of
undergone imprisonment and to fine only
as the matter is very old one.

11. It has also been stated that the
incident took place on 26.03.1989 and
08.04.1989 and the judgment by the trial
court was pronounced on 07.02.1991 and
today this is December, 2017 and at the
time of recording the statement u/s 313
Cr.P.C., the appellant was at the age of 24
years and presently he is aged about 50
years and moreover the appellant has spent
in jail 86 days i.e. about half sentence
awarded by the learned trial court.

12. Learned A.G.A. also had no
serious arguments on the said score as she
has also conceded to the fact that the appeal
is very old one and the sentence is only for
six months and more than 26 years have
elapsed, but the appeal could not be
decided.

13. Not pressing the criminal appeal
after the conviction of the accused by the
Court below is like the confession of the
offence by the accused. The Courts
generally take lenient view in the matter of
awarding sentence to an accused in
criminal
trial,
where
he
voluntarily
confesses his guilt, unless the facts of the
case warrants severe sentence

14. In case of Sevaka Perumal etc.
Vs. State of Tamil Nadu, AIR 1991 SC
1463, the Hon'ble Apex Court in the matter
of awarding proper sentence to the accused
in a criminal trial has cautioned the Courts
as under:-

"Undue
sympathy
to
impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed etc."

15. In Jameel vs. State of Uttar
Pradesh, (2010) 12 SCC 532, the Hon'ble
Apex Court has reiterated the principle by
stating that the punishment must be
appropriate and proportional to the gravity
of the offence committed. Speaking about
the concept of sentencing, this Court
observed thus:-
342 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. In operating the sentencing
system, law should adopt the corrective
machinery or deterrence based on factual
matrix. By deft modulation, sentencing
process be stern where it should be, and
tempered with mercy where it warrants to
be. The facts and given circumstances in
each case, the nature of the crime, the
manner in which it was planned and
committed, the motive for commission of
the crime, the conduct of the accused, the
nature of weapons used and all other
attending circumstances are relevant facts
which would enter into the area of
consideration.

16. It is the duty of every court to
award proper sentence having regard to
the nature of the offence and the manner in
which it was executed or committed. The
sentencing courts are expected to consider
all relevant facts and circumstances
bearing on the question of sentence and
proceed
to
impose
a
sentence
commensurate with the gravity of the
offence."

16. I have given a thoughtful
consideration on the overall facts and
circumstances. There is nothing on record
that the appellant has any criminal history.
Prosecution has failed to bring on record
any
material
which
disqualifies
the
appellant from his sentence being modified.

17. In these circumstances, I agree
with the arguments of the learned counsel
for the appellant that only by sending the
appellant to jail will not serve the purpose
and on an overall consideration of above
and other attending facts and circumstance,
I am of the view that the period of
imprisonment awarded by the learned trial
court for six months under Section 3/7 of
the Essential Commodities Act, may be
reduced to the period of imprisonment
already undergone and also with a fine of
Rs.20,000/-.

18. In view of the above, the appeal
filed by the appellant is allowed in part,
whereas the conviction of the appellant by
impugned judgment and order is hereby
maintained. His sentence is reduced to the
period of imprisonment already undergone
by him with fine of Rs.20,000/-. The
appellant Mohsin Ali Khan is permitted to
deposit fine within a period of one month
from today, failing which he has to undergo
three
months'
simple
imprisonment.
Concerned court will take all possible steps
for realization of fine.

19. Let a certified copy of this
judgment be sent to the concerned court
immediately for intimation and immediate
compliance. The concerned court shall send
its report immediately after the compliance
of the order of this Court.
----------
(2022)03ILR A342
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR , J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 745 of 2014

Bhura @ Bhure ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sharad Malviya, Sri J.H. Khan, Sri M.I.
Farooqui, Sri Gulrej Khan

Counsel for the Respondent:
A.G.A.