1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-1419-SB-2005 (O&M) Reserved on : 14.07.2026 Pronounced on : 31.07.2026 Avinash Gupta ..... Appellant VERSUS State of Punjab ..... Respondent CORAM: HON’BLE MR. JUSTICE SURYA PARTAP SINGH Argued by : Mr. Jagdish Goyal, Advocate for Mr. Dinesh Goyal, Advocate for the appellant. Mr. Eklavya Darshi, Deputy Advocate General, Punjab. ***** SURYA PARTAP SINGH, J. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 16.08.2005, passed by the Court of learned Special Judge Kapurthala, hereinafter being referred to as ‘trial Court’ only. 2. Briefly stating the facts emerging from record are that a complaint was registered at the instance of ‘Malkiat Singh, Chief Agricultural Officer, Kapurthala, for the commission of offence under Sections-7 and 12 AA of the Essential Commodities Act, 1955 read with Clause 19 of the Fertilizer Control Order, 1985. In view of abovementioned complaint, the investigation was taken up by the police, and as an outcome GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 2 of abovesaid investigation, the appellant along with co-accused were sent to face trial before the learned trial Court. 3. The appellant along with co-accused participated in the abovementioned trial, which by virtue of impugned judgment dated 16.08.2005, culminated into their conviction. Thus, vide order dated 16.08.2005 on the quantum of sentence, the appellant was awarded following sentence:- Name of convict Offence under Section Sentence Avinash Gupta 7 of Essential Commodities Act, 1955 Rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- and in default thereof to further undergo rigorous imprisonment for a period of one month. 4. Aggrieved of the abovementioned judgment of conviction and order of sentence, the present appeal has been preferred by the appellant. 5. In nut-shell, the facts emerging from record are that the abovementioned complaint came into being at the instance of ‘Malkiat Singh, Chief Agricultural Officer, Kapurthala’, pursuant to an inspection conducted by ‘Narinder Singh’, Fertilizer Inspector, on 04.12.1992 at the premises of ‘M/s Gupta Kissan Khad Agency’, New Dana Mandi, Phagwara, District Kapurthala, an authorised dealer of ‘M/s Munak Chemicals Limited’, Bathinda. It had been alleged in the complaint that at the time of inspection, ‘Avinash Gupta’, proprietor of the dealer firm, was present and after disclosing his identity and serving the requisite notice under the Fertilizer (Control) Order, 1985, the Fertilizer Inspector inspected the dealer's registration certificate and stock register, wherein 54 bags of Single GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 3 Super Phosphate (Granulated) 16% Pooja Brand (each weighing 50 kg) manufactured by ‘M/s Munak Chemicals Limited’, were found in stock. 6. It had further been alleged in the complaint that thereafter, in the presence of the proprietor and the ‘Soil Testing Officer’, representative samples were drawn from two randomly selected bags in the prescribed manner. The samples were duly sealed after completing the requisite formalities and Forms ‘J’ and ‘K’ were prepared. One sample was forwarded to the ‘Fertilizer Quality Control Laboratory, Ludhiana’ for analysis, whereas the remaining samples were deposited with the competent authority in accordance with the prescribed procedure. Upon analysis, the ‘Analytical Chemist (In-charge), Fertilizer Quality Control Laboratory, Ludhiana’, vide analysis report dated 05.01.1993, opined that the sample of Single Super Phosphate (Granulated) 16% Pooja Brand did not conform to the prescribed specifications under the ‘Fertilizer (Control) Order, 1985’ and was, therefore, declared non-standard. Consequent thereto, a show cause notice along with a copy of the analysis report was served upon ‘M/s Gupta Kissan Khad Agency’ and its proprietor ‘Avinash Gupta’. 7. It was alleged that the dealer firm had violated Clauses 19(1)(a) and 19(1)(c) of the ‘Fertilizer (Control) Order, 1985’ by selling, stocking and distributing non-standard fertilizer. According to complainant, ‘M/s Munak Chemicals Limited’, being the manufacturer of the said fertilizer, had manufactured and supplied non-standard fertilizer, while ‘Jarnail Singh Birdi’, the Responsible Officer and the person in-charge of, and responsible for the conduct of the business of the manufacturing company at the relevant GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 4 time, was liable for the abovesaid contravention. Accordingly, the dealer firm, its proprietor, the manufacturing company and its Responsible Officer were alleged to have committed an offence punishable under Section-7 of the Essential Commodities Act, 1955, whereupon the present complaint was filed by ‘Malkiat Singh, Chief Agricultural Officer, Kapurthala’, and the accused were summoned to face trial. 8. To discharge its burden with regard to charge against the appellant, the prosecution in the instant case relied upon documentary as well as oral evidence. The documents relied upon, and marked with exhibits, by the prosecution were:- Ex.PB - Notice regarding sample of fertilizer Ex.PC - Form ‘C’, Application, with regard to renewal of the certificate of registration to carry on the business of selling fertilizers in retail/wholesale Ex.PD - Form ‘J’ regarding particular of fertilizer sample Ex.PE - Form ‘K’ memorandum to accompany fertilizer sample for analysis Ex.PF - Invoice from ‘Munak Chemical Limited’ Ex.PG - Affidavit of ‘Avinash Gupta’ regarding undertaking Ex.PH - Application regarding issuance of fertilizer registration certificate Ex.PK - Show cause notice dated 02.02.1993 to ‘M/s Gupta Kissan Khad Agency’ Ex.PK/1 - Reply to the show cause notice Ex.PL - Show cause notice dated 01.03.1993, to ‘M/s Munak Chemicals Ltd.’ Ex.PL/1 - Reply to the abovementioned show cause notice Ex.PM - Complaint under Sections 7 and 12 AA of the Essential Commodities Act Ex.PJ - Application regarding disclosure of name GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 5 & address of the person responsible for Clause-24 of FCO, 1985, addressed to the Chief Agriculture Officer, Kapurthala. Ex.PU - Show cause notice dated 02.08.1994, to Mr. Samail Singh c/o Munak Chemical Ltd.’ Ex.PV - Reply to the abovementioned show cause notice. Ex.PS - Notice regarding non-standard of sample 16% Pooja Brand to M/s Munak Chemicals Ltd. Ex.PR - Application regarding issuance of fertilizer registration certificate by ‘Munak Chemicals Ltd.’ Ex.PA - Gazetted Notification dated 30.07.1987 Ex.PA/1 - Gazetted Notification dated 05.08.1991 9. To provide support and corroboration to the above-mentioned documentary evidence, as many as four witnesses were examined by the prosecution. Those were:- PW-1 - Harbans Singh, Soil Testing Officer, New Gran Market Phagwara PW-2 - Balwinder Singh, Agricultural Development Officer, Kapurthala PW-3 - Rajinder Singh, Beldar, c/o Chief Agricultural Officer, Kapurthala PW-4 - Surrinder Kumar, Training Officer, c/o Chief Agricultural Officer, Kapurthala 10. Once the prosecution evidence was complete, the learned trial Court undertook the essential formalities, as enshrined under Section 313 CrPC. Thereafter, opportunity of defence evidence was afforded to the appellant. In his defence evidence, the appellant did not examine any witness. GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 6 11. Once the evidence of both the parties was complete, the learned trial Court gave an opportunity to the appellants as well as prosecution to address arguments, and thereafter, returned the judgment of conviction against the appellant and his co-accused. 12. Heard. 13. It has been contended on behalf of appellant that the impugned judgment of conviction and order of sentence deserve to be set aside, being the outcome of non-application of judicial mind. According to learned counsel for the appellant, the learned trial Court has failed to appreciate that the necessary ingredients meant for the commission of abovementioned offence were not established by the prosecution, in accordance with the standard prescribed under the law. As per learned counsel for the appellant, merely, on the basis of conjectures and surmises as well as assumptions and presumptions, the learned trial Court held the appellant guilty. 14. However, during the course of arguments, the learned counsel for the appellant has contended that in the instant appeal, the appellant is not inclined to challenge the finding of conviction recorded by the learned trial Court. The learned counsel for the appellant has categorically contended that at this stage, by virtue of present appeal, the appellant is challenging the order on the quantum of sentence only. It has been further contended by learned counsel for the appellant that since the age of appellant is around 75 years, and he has clean record, he craves for the benefit of probation/ admonition. GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 7 15. As per learned counsel for the appellant, the appellant is not a habitual offender and that instant prosecution is the only prosecution faced by the appellant in his entire life. According to learned counsel for the appellant, the instant case is a fit case, wherein in view of the nature of offence committed by the petitioner, he is entitled to the benefit of probation/admonition, firstly because of his old-age; secondly because of his conduct subsequent to the present offence, as he has not indulged in any kind of criminal activity, and thirdly because of the nature of offence committed by the petitioner, as there was no mens rea behind the commission of offence. In support of his arguments, the learned counsel for the petitioner has placed reliance upon the principles of law laid down by this Court in the cases of ‘M/s Kanshi Ram Mehar Chand & Ors. V/s State of Punjab’ CRA-S-358-SB-2003 and ‘M/s Vishnu Trading & Ors. V/s State of Punjab’ CRA-S-436-SB-2004. 16. Per contra, the learned State Counsel has contended that the appellant has been found guilty for the commission of offence punishable under Section-7 of the Essential Commodities Act, and that merely, on the basis of his old age, the appellant does not deserve a lenient view. According to learned State Counsel, the sentence awarded to the appellant, i.e. imprisonment for a period of two years, is already on lenient side, and that the appellant is not entitled for a sentence of imprisonment for a period of less than two years. The learned State Counsel has further contended that the gravity of offence, committed by the appellant, renders him ineligible for GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 8 any lenient view, and therefore, he is not entitled to the benefit of probation/ admonition. 17. The arguments addressed on behalf of both the parties have been duly considered and the record has been perused carefully. 18. As far as the present appeal is concerned, there are two points, which are supposed to be determined by this Court:- i) Whether the finding recorded by the learned trial Court with regard to proving of charge against the appellant, needs interference and indulgence of appellate jurisdiction of this Court. ii) If first point is answered against the appellant, whether the appellant is entitled for benefit of probation/admonition. POINT NO.I 19. As far as this point is concerned, at the threshold it is relevant to mention here that the findings recorded by the learned trial Court with regard to judgment of conviction, have not been challenged by the learned counsel for the appellant during the course of arguments. Otherwise also, the record has been perused carefully and a perusal of evidence, adduced by the prosecution before the learned trial Court, shows that the abovementioned evidence was thoroughly consistent, reliable and good enough to bring home charge against the appellant for the commission of offence punishable under Section-7 of the Essential Commodities Act. It is also relevant to mention here that the findings, recorded by the learned trial Court, are well-reasoned. Thus, it is hereby held that there is no scope for interference or indulgence in GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 9 the finding, recorded by the learned trial Court with regard to conviction of appellant under Section-7 of the Essential Commodities Act. 20. Accordingly, the abovementioned finding is hereby affirmed, and as an outcome of abovementioned finding, the point of determination No.1, framed in this appeal, is hereby answered against the appellant. POINT NO.II 21. With regard to above point of determination, it is relevant to mention here that similar question has been dealt with by this Court in the case of ‘M/s Kanshi Ram Mehar Chand’ (supra). In the abovementioned case, for the commission of offence punishable under Section-7 read with Section 12AA of the Essential Commodities Act, the appellants in the abovementioned case were sentenced to undergo rigorous imprisonment for a period of two years. However, this Court accorded the benefit of probation to the appellants in that case. 22. Similarly in the case of ‘M/s Vishnu Trading & Ors.’ (supra), the benefit of probation was accorded to a convict, who had faced charge for the commission of offence punishable under Section-7 of Essential Commodities Act, and was sentenced to undergo imprisonment for a period of two years. The abovementioned benefit was given to the convict in the abovementioned case, by taking into consideration that they had no criminal antecedents. 23. The abovementioned principles of law squarely covers the factual matrix of the present case. As far as the benefit of probation is concerned, the relevant principles have been propounded by the Hon’ble GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 10 Supreme Court of India in the case of ‘Jugal Kishore Prasad v. State of Bihar’ (1972) 2 SCC 633. The Hon’ble Supreme Court of India while considering the scope of the Probation Act held as under: - “The Probation of Offenders Act was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that a good many crimes are the product of socioeconomic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that youthful offenders should not be sent to jail, except in certain circumstances. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of Section 6 of the Act. Sub-section (1) of that section reads as under: - “When any person under twenty-one years of age is found guilty of having committed an offence punishable GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 11 with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.” 24. The similar question was considered by the Hon’ble Supreme Court of India in a subsequent judgment, i.e. in the case of ‘Chellammal and Another v. State’ 2025 SCC OnlineSC 870. In the abovementioned case, the Hon’ble Supreme Court of India observed as under: - “On consideration of the precedents and based on a comparative study of Section 360, Cr. P.C. and subsection (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in subsection gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. P.C. itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 12 provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor. What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. P.C. is that if Section 360, Cr. P.C. were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor.” 25. Taking into consideration that the facts and circumstances of the present case are squarely covered by the principles of law propounded in the abovementioned cases, it is hereby held that instant case also is a fit case, wherein the appellant, who is almost 75 years old having no history of other GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document 13 conviction of similar offence, and also faced agony of trial for the last almost 31 years, is entitled to the benefit of probation/admonition. As an outcome of abovementioned discussion, the point of determination No.II framed in this appeal, is hereby answered accordingly, i.e. in favour of appellant. CONCLUSION: 26. As a sequel to abovementioned observations, the plea of the appellant with regard to benefit of probation deserves to be accepted. Consequently, by partly accepting the present appeal, while upholding the judgment of conviction, the sentence awarded to the appellant is hereby modified and the benefit of probation is accorded to the appellant. He is directed to furnish the requisite bonds of good behaviour to the satisfaction of learned Chief Judicial Magistrate Kapurthala. Once the bonds are executed, the appellant would be released on probation for a period specified by the learned Chief Judicial Magistrate Kapurthala. Obvious to say that in case of any offence committed by the appellant during the period of probation, he shall have to undergo the sentence awarded in this case. 27. The present appeal stands partly allowed, accordingly. The miscellaneous application(s) pending, if any, shall also stand disposed of. (SURYA PARTAP SINGH) JUDGE 31.07.2026 Gaurav Thakur Whether speaking/reasoned Yes/No Whether reportable Yes/No GAURAV THAKUR 2026.08.01 12:37 I attest to the accuracy and integrity of this document