IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 380 of 2012 With CRIMINAL MISC.APPLICATION NO. 10965 of 2012 In CRIMINAL REVISION APPLICATION NO. 380 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ HAMIR BHOJA CHAVDA Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
MR SHALIN MEHTA, SR.ADV. WITH MR KANDRAP H DHOLKIA, ADVOCATE for the Applicant MS CHETNA AHSH, ADDL.PUBLIC PROSECUTOR for the Respondent ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/12/2012 CAV JUDGEMNT 1.00. Present Criminal Revision Application, under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein – original accused to quash and set aside the impugned Judgement and Order dtd.17/7/2012 passed by the learned appellate court - learned 7th Additional Sessions Judge, Jamnagar in Criminal Appeal No.15 of 2009 by which the learned appellate court has partly allowed the said appeal preferred by the petitioner - original accused and confirming the Judgement and Order dtd.15/6/2009 passed by the learned trial court - learned Chief Judicial Magistrate, Jamnagar in Criminal Case No. 3334 of 2004 in so far as the offence under section 21(1) and (2) of the Air (Prevention and Control of Pollution) Act (hereinafter shall be referred to as “the Act” for convenience), and convicting the petitioner - original accused for the offences punishable under sections 21(1) and (2) of the Act, and reducing the sentence imposed by the learned trial court from six years Rigorous Imprisonment to two years Rigorous Imprisonment.
2.00. That the respondent No.2 – original complainant lodged the complaint against the petitioner - original accused for the offence under section 21(1) and (2) read with section 31 of the Act, in the court of Chief Judicial Magistrate, Jamnagar which was numbered as Criminal Case No. 3334 of 2004. That the learned Chief Judicial Magistrate, Jamnagar, by the Judgement and Order dtd.15/6/2009 held the petitioner - original accused guilty for the offences punishable under section 21(1) and (2) as well as section 31A of the Act and convicted the appellant for the said offence, under section 37 of the Act and imposed punishment of six years Rigorous Imprisonment with fine of Rs.10,000 and in default to undergo further one year Rigorous Imprisonment.
2.01. Being aggrieved by and dissatisfied with the Judgement and Order of conviction passed by the learned Chief Judicial Magistrate Jamnagar in Criminal Case No. 3334 of 2004 dtd.15/6/2009, petitioner – original accused preferred Criminal Appeal No.15 of 2009 before the learned Sessions Court, Jamnagar and the learned 7th Additional Sessions Court, Jamnagar by the impugned Judgement and Order dtd.17/7/2012 has partly allowed the said appeal acquitting the petitioner - original accused for the offence under section 31A of the Act, however confirmed the conviction of the petitioner for the offence under section 21(1) and (2) of the Act, punishable under section 37 of the Act. However, has reduced the sentence from six years Rigorous Imprisonment to two years Rigorous Imprisonment with fine of Rs.10,000/-, and in default, to undergo further one year Rigorous Imprisonment.
2.02. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by the learned appellate court confirming the Judgement and Order of conviction passed by the learned trial court convicting the petitioner - original accused for the offence under section 21(1) and (2) of the Act, punishable under section 37 of the Act and passing order of sentence of two years Rigorous Imprisonment with fine of Rs.10,000/- and in default to undergo one year Rigorous Imprisonment, petitioner herein – original accused has preferred preferred present Criminal Revision Application.
3.00. Present Criminal Revision Application was heard by this Court at length and this Court heard Mr.Shalin Mehta, learned Senior Advocate appearing with Mr.Kandrap Dholakia, learned advocate appearing on behalf of the petitioner herein – original accused and Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State at length.
4.00. After elaborate submissions, Mr.Shalin Mehta, learned Senior Advocate appearing on behalf of the petitioner
- original accused, under the instructions of the petitioner - original accused, has stated at the bar that the petitioner - original accused does not press the present present Criminal Revision Application in so far as challenging the impugned Judgement and Order passed by the learned appellate court confirming the Judgement and Order of conviction passed by the learned trial court convicting the accused for the offence under section 21(1) and (2) of the Act, punishable under section 37 of the Act. However, has requested to consider the question of sentence and has requested to reduce the sentence from two years Rigorous Imprisonment to one year Rigorous Imprisonment. It is submitted that fine is already deposited / paid by the accused.
4.01. The learned counsel appearing on behalf of the petitioner - accused has submitted that as such the petitioner is coming from very small village and as such was not aware about the position of law and strict compliance thereof.
4.02. Mr.Shalin Mehta, learned counsel appearing on behalf of the petitioner - original accused has further submitted that even as per the Notification extending time to comply with the provisions of the Act, more particularly to provide Chimney while preparing bricks, the petitioner was under bonafide impression that the bricks manufacturer is exempted permanently from the requirement of putting up Chimney.
4.03. Mr.Shalin Mehta, learned counsel appearing on behalf of the petitioner - original accused has further submitted that even otherwise, in the facts and circumstances of the case to impose sentence of two years Rigorous Imprisonment would be too harsh. Therefore, it is requested to consider the request of the petitioner - original accused to reduce the sentence.
5.00. Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State has submitted that as such the learned appellate court has already reduced the sentence from six years Rigorous Imprisonment to two years Rigorous Imprisonment and therefore, in the facts and circumstances of the case, further sentence is not required to be reduced. It is further submitted by Ms.Shah, learned Additional Public Prosecutor that even considering section 37 of the Act, minimum sentence / imprisonment is one year and six months, which may extend to six years, and therefore, it is requested not to impose less than the minimum punishment. Therefore, she has requested to impose appropriate sentence considering the facts and circumstances for which she has no objection, however, has requested to consider the object and purpose of the Act while imposing appropriate sentence.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.01. As stated above, the petitioner - original accused is not challenging the Judgement and Order of conviction passed by the learned trial court confirmed by the learned appellate court in so far as convicting the petitioner - original accused for the offence under section 21(1) and (2) of the Act and therefore, this Court is not considering the present Criminal Revision Application qua challenging the impugned Judgement and Order of conviction and present Criminal Revision Application is dismissed as not pressed / withdrawn in so far as challenging the impugned Judgement and Order of conviction passed by the learned trial court confirmed by the learned appellate court. However, the learned counsel appearing on behalf the petitioner - original accused has requested to reduce the sentence from two years Rigorous Imprisonment to one year Rigorous Imprisonment.
7.02. It is required to be noted that the learned appellate court has imposed sentence of two years rigorous imprisonment with fine of Rs.10,000/- and in default to undergo further Rigorous Imprisonment for one year while confirming the Judgement and Order of conviction passed by the learned trial court convicting the petitioner - original accused for the offence under section 21(1) and (2) of the Act and the learned advocate appearing on behalf of the petitioner
- original accused has requested to further reduce the said sentence.
7.03. It appears that the petitioner is a villager and was preparing bricks and as such the petitioner has been convicted for the offence under section 21(1) and (2) of the Act only and the petitioner - original accused has been acquitted by the appellate court for the offence under section 31A of the Act and it appears that it was the first offence and there was no malafide intention and/or deliberate attempt on the part of the petitioner to commit breach of the provisions of the Act, it appears that if the sentence is reduced from two years to one year and six months (which is the minimum sentence under the Act) and fine is increased from Rs.10,000/- to Rs.25,000/- and in default, to undergo Rigorous Imprisonment for a period of six months, in the facts and circumstances of the case, it will meet the ends of justice.
7.04. In view of the above and for the reasons stated above, present Criminal Revision Application succeeds in part and the impugned Judgement and Order dtd.17/7/2012 passed by the learned appellate court - learned 7th Additional Sessions Judge, Jamnagar in Criminal Appeal No.15 of 2009 is hereby modified qua sentence only and while confirming the Judgement and Order of conviction passed by the learned trial court confirmed by the learned appellate court convicting the petitioner - original accused for the offence under section 21(1) and (2) of the Act, punishable under section 37 of the Act, and petitioner herein – original accused is hereby directed to undergo sentence of one year and six months Rigorous Imprisonment (which is minimum punishment under the Act) with fine of Rs.25,000 and in default to pay fine, to undergo further sentence of six months Rigorous Imprisonment. If the petitioner - original accused has already paid the fine of Rs.10,000/- imposed by the learned appellate court, in that case, the same shall be given credit to the petitioner - original accused and the petitioner to pay balance / remaining amount of fine of Rs.15,000/-. Rule is made absolute to the aforesaid extent only.
In view of disposal of the main Criminal Revision Application, no order in the Criminal Misc.Application No. 10965 of 2012 and the same is disposed of accordingly.
rafik Sd/-
[M.R. SHAH, J.]