STATE OF GUJARAT Vs. KANTILAL AMBALAL PAID

JUDGEMENT

(1.) The three important questions that surface for consideration in this acquittal appeal are - Firstly, "whether it is open to the trial Court to straightway accept the 'plea-of-guilty' and immediately thereupon record the order of conviction and sentence without issuing notice to the learned P.P. and for that purpose [when not represented by the learned P.P.] to the learned Advocate for the complainant to enable him to make submission either on the acceptance of the said 'plea-of-guilty' and/or Order of sentence to be passed ?" Secondly, "whether the contravention of Clause 16 of the Gujarat Essential Articles [Licensing, Control and Stock Declaration] Order, 1981, framed under the Essential Commodities Act, 1955 can ever be termed to be a 'Technical Offence' or the same is quite grave and serious enough to be lightly countenanced, while awarding the sentence ?" AND Thirdly, "What is the meaning of the term "Technical Offence" ?

(2.) Few relevant facts leading to above three questions : According to the prosecution, when Shri A. V. Padhya, Supply Inspector, Mehsana on 11-11-1986 inspected the Fair Price Shop of the respondent-Kantilal Ambalal Patel, situated at Market Yard, Plot No. 116, Kukarwada [Taluka Vijapur], he came across certain irregularities and contraventions; in particular Clause'16 of the Gujarat Essential Articles [Licensing, Control and Stock Declaration] Order, 1981 [for short "the Order"] framed under the Essential Commodities Act, 1955 [hereinafter referred to as "the Act"] pertaining to not displaying the facts about the Opening-Stock and Price of the edible oil, and working hours at the conspicuous place of his business premises. On the basis of these allegations, the Civil Supply Inspector filed a complaint Exh. 1, dated 28- 10-1987 against the respondent in the Court of learned Special Judge, Mehsana, which came to be registered as a Essential Commodity Case No. 11 of 1987, whereupon a bailable warrant in sum of Rs. 5,000.00 was issued. Thereafter, it appears that for whatever reasons, the case could not be taken up till 10- 9-1991 [for about four years, when ultimately the respondent appearing' before the Court pleaded guilty and prayed for mercy in the matter of sentence on the ground that the offence alleged against him was merely 'technical' and that there was no evidence of charging customers more than the fixed rate. The learned trial Judge accepting the same convicted and sentenced him for the alleged offence punishable under Sees. 3 and 7 of the Act, and sentenced him till rising of the Court and to pay fine of Rs. 100.00 and in default, to undergo further S.I. for 15 days. It is under these circumstances that the State has been constrained to file the present appeal before this Court for enhancement of the sentence.

(3.) Now, it indeed cannot be disputed that for the alleged contravention of Clause 16 of the Order which is an offence under Sec. 3 of the Act, the punishment provided in Sec. 7(l)(a)(ii) is that of imprisonment for a period not less than 3 months but which may extend to 7 years, and shall also be liable to fine. In this view of the matter, not only the impugned order of sentence is unduly lenient and grossly inadequate but the same being contrary to the statutory minimum prescribed under the Act is also patently illegal. As a matter of fact, having regard to the facts and circumstances of the case, it appears that this is more or less a case of 'pleabargaining' and in that view of the matter, in the light of decisions of this Court rendered in cases of [i] State of Gujarat v. Thakorelal N. Rana & Anr., reported in [1991 (1)] XXXII (1) GLR 71, and [ii] State v. Rajesh Medical Stores, reported in [1993 (2)] XXXIV (2) GLR 1094, this case shall have to be remanded to the trial Court for de-now trial. However, the matter does not simply rest here as something more is required to be stated to clarify the three important aspects having direct bearing on the procedural and sentencing process in the important matters of such a nature which have been raised by way of three questions at the top of this judgment. Accordingly, apart from the patent illegal 'plea-bargaining' in the present case, in the first place, it appears that the trial Court has committed one more illegality in disposing of this case on the very day of the accused appearing before it and pleading guilty, without caring to issue the notice to the learned P.P., enabling him to make submissions on the point either of the acceptance of the said plea and/or that of sentence to be passed. Of course, as submitted by the learned P.P. it is quite true that the Criminal Procedure Code, 1973 nowhere lays down any direction to the trial Courts that whenever accused pleads guilty it should stand-over the matter for sometime to enable the learned P.P. to make his submission for the same, but at the sometime, it is equally true that how to exercise the common sense while exercising the judicial discretion can never be a subject-matter of any legal provision. Thus, whether the plea should be accepted or not is a matter undoubtedly within the sole discretion of the trial Court, yet at the same time, the judicial pragmatism warrants that whenever the accused pleads guilty, it should not hasten and hush-up the matter by immediately accepting the same and imposing some trivial sentence, without even issuing notice to the learned P.P. with a view to avail him an opportunity if he has anything to say either against acceptance of plea of guilty and/or against the imposition of sentence. The reason is if such an opportunity is to given the learned P.P., what ought we know that he may, on his making suitable inquiry be in a position to point out that the accused pleading guilty is a person who was previously convicted for the same and/or such other offence[s] and in that view of the matter, in the first instance, he may persuade the Court not to accept the said 'plea of guilty' and in the second instance, may point out that the offence alleged against the accused was liable to be punished with at least the minimum sentence. Accordingly, if the learned P.P. is successful enough to persuade the Court that the 'plea of guilty' should not be accepted, the matter stands rested there and there only but as against that despite the objection of the learned P.P., if the Court is inclined to' accept the plea in question then in those cases where the statutory minimum punishment is prescribed, the Court may be saved from inadvertently imposing less than the minimum. Further, none of us can ever be oblivious to the fact that ordinarily when any person commits offence[s], he does not commit the same for the purpose of ultimately making clean-breast before the Court, when detected. Rather, in very nature of things, none is ordinarily that honest, truthful and sincere to admit his guilt which may ultimately land him in Jail. In fact, it is only when accused find himself in an uncomfortable tight-corner, inextricably clutched and thereby unable to come out of the same that he, only with an ingenious devices of throwing dust in the eyes of Court or when he is so induced to plead guilty by way of 'plea-bargaining' that he pleads guilty in order to get away with the lighter sentence. Bearing in mind this sort of patent and obvious accused psychology and the resultant modus-operandi, if the learned P.P. is given the much needed opportunity of hearing him before accepting the so-called plea of guilty as well as passing of the order of sentence, the patent illegality as the one which has taken place in the instant case which usually creeps in, in all such matters, the same could be safely avoided . Thus, a little exercise of judicial pragmatism on the part of the trial Court at the time of recording plea of guilty could save not only the parties but the Court as well from the inconveniences and the wastage of precious public time and money resulting out of the multiplicity of proceedings . In this view of the matter, whenever the accused pleads guilty, the learned Magistrate/Judge shall not act upon it at once by accepting the same and dispose of the case by inflicting lighter sentence. Such a hasty disposal is not only illegal, being unfair to the prosecution, but the same very much eclipses the image of the administration of Justice. Therefore, in such cases, it is the duty of every Court to issue notice to the learned P.P. and in case the complainant is not represented by the learned P.P. but by the private learned Advocate then in that case, to that concerned learned Advocate, and after hearing him fully whether the plea of guilty should be accepted or not, and if he reaches the conclusion that such a plea is required to be accepted, then after hearing him what should be the proper quantum of sentence [if the minimum sentence is not prescribed], the final order should be passed.