ORDER :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

“It is, therefore, respectfully prayed that appeal may kindly be allowed and impugned judgment and order dated 12.12.1994 may kindly be set aside and in the alternative their case may kindly be considered under Section 360 of Cr.P.C. or Probation of Offenders Act may be applied”

3. The matter pertains to an incident that occurred in the year 1990 and the present appeal has been pending since 1995.

4. Vide impugned judgment dated 12.12.1994 the learned Special Judge, Essential Commodities Cases in Criminal Original Case No.09/1990, convicted the accused-appellants for the offences under Sections 3/7 of the Essential Commodities Act and sentenced them to undergo four months' S.I. and a fine of Rs. 1000/-, in default of payment of which they were to further undergo one month simple imprisonment.

5. Learned counsel for the accused-appellants submits that the accused-appellants do not have any criminal antecedents to their discredit.

6. Learned counsel for the accused-appellants further submits that the sentence awarded to the accused-appellants was suspended by this Hon’ble Court vide the order dated 06.01.1995, passed in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 3/1995, and thus, they are on bail.

7. Learned counsel for the accused-appellants however, makes a limited prayer that the accused-appellants may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

“4. Power of court to release certain offenders on probation of good conduct.—

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to

keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)…

(4)…

(5)... ”

8. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellants are not entitled for any indulgence by this Court.

9. Heard learned counsel for the parties as well as perused the record of the case.

10. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon’ble Apex Court observed as under:-

“The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the