Biharilal Gupta vs State of Madhya Pradesh

N.K. Gupta, J.

The appellant has preferred the present appeal against the judgment dated 20.8.1998 passed by the Special Judge under Essential Commodities Act and Sessions Judge, Satna in Special case No. 1/1997, whereby the appellant has been convicted of offence under Section 3/7 of Essential Commodities Act (in short "EC Act") and sentenced to 6 months Rigorous Imprisonment with fine of Rs. 10,000/-.

The prosecution''s case, in short, is that, Food Inspector Shri Vipin Kumar Patel (P.W. 3) alongwith Assistant Food officer Shri N.K. Chaturvedi went to the shop of the appellant on 19.2.1997 at village Sajjanpur (Police Station Rampur Baghelan, District Satna). Thereafter, in 4-5 drums 450 liters of blue kerosene was recovered from the appellant in presence of the witnesses. The appellant had no licence to sell such prohibited article according to M.P. Kerosene Licensing Order, 1979. Hence, seized kerosene oil was given to the Manager of Sewa Sahakari Samiti, Sajjanpur and thereafter, it was sold by the Collector. An FIR was lodged and after due investigation, a charge-sheet was filed before the Special Court.

The appellant abjured his guilt. He took a plea that in connivance of Sarpanch Shyamlal Choudhary, Food Inspector Shri Vipin Kumar Patel dropped 4-5 drums near the house of the appellant and thereafter, a false case has been registered against him. In defence, Kashi Prasad (D.W. 1) was examined.

Special Judge after considering the evidence adduced by the parties, convicted and sentenced the appellant as mentioned above.

I have heard the learned counsel for the parties.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case and evidence laid by the parties before the trial Court, it appears that there are only 3 points which are to be considered. Firstly, that whether the seized article was prohibited kerosene? Secondly, whether the prohibited kerosene was found in the possession of the appellant and thirdly, whether any relaxation can be done in the sentence imposed by the trial Court? Food Inspector Shri Vipin Kumar Patel (P.W. 3) did not state that he took any sample from the seized liquid or sent it for its chemical or any other examination.

Looking to the statement of Shri Vipin Kumar Patel and other two witnesses of the document, Ex. P/3 seizure memo, where the independent witnesses Dashrath Prasad (P.W. 6) and Chandrabhan Tiwari (P.W. 7) have turned hostile, a doubt was created that blue kerosene oil was recovered from the appellant. If the seizure memo Ex. P/3 is perused then, there is difference of ink on so many places and possibility cannot be ruled out that alleged seized liquid was not prohibited kerosene oil. The learned senior counsel for the appellant has submitted that kerosene oil can be sold by any vendor, if it is not specifically given to ration shops for its distribution on subsidized rates and such kerosene which is to be distributed on subsidized rates was coloured with blue colour and therefore, it was for the Food Inspector to prove that the seized liquid was blue kerosene. By physical observation, the Food Inspector could say that it was kerosene but, unless the witnesses have proved its colour, testimony of the Food Inspector cannot be believed and it cannot be said that seized article was prohibited kerosene. Looking to the conduct of Food Inspector Shri Vipin Kumar Patel (P.W. 3), the contention advanced by the learned senior Advocate for the appellant appears to be acceptable and therefore, it is not proved beyond doubt that Shri Vipin Kumar Patel had seized the prohibited kerosene.

So far as the possession of the appellant is concerned, Shri Vipin Kumar Patel has stated that initially when he and Assistant Food Officer Shri N.K. Chaturvedi went to Sajjanpur then, they were stopped from going inside the shop and house because Ashok Kumar, son of the appellant did not permit them to get his shop examined in absence of his father. After one hour the appellant came and he did not cooperate in the enquiry and therefore, Shri Vipin Kumar Patel went to the police station Rampur Baghelan and brought the police force. He has further stated that no objectionable article was found in the shop of the appellant but, in the gallery from the shop to the residential portion, a drum filled with blue kerosene was found and 4 drums of kerosene were found from the back courtyard of the house of the appellant and therefore, a seizure memo, Ex. P/3 was prepared.

Shri Vipin Kumar Patel has stated that he prepared the seizure memo, Ex. P/3 and Ex. P/6 a memo of total proceedings was prepared. It is surprising that on document, Ex. P/3 Shri Vipin Kumar Patel took only two witnesses namely Dashrath Prasad Shukla (P.W. 6) and Chandrabhushan Singh Tiwari (P.W. 7), who have turned hostile, whereas in memo of proceedings, he took as many as 5 witnesses. It is no where clear as to why he took 5 witnesses while preparing the memo of proceedings. However, signatures of Dashrath Prasad as well as of Chandrabhan Tiwari were taken on the document, Ex. P/6 also. Prakash (P.W. 4) who was Panch of Gram Panchayat Sajjanpur was also made a witness in the document, Ex. P/6, who also has turned hostile. The witness Shyamlal Choudhary (P.W. 5) had supported the prosecution''s story. He has stated that one half filled drum with kerosene was found from the house of the appellant, whereas 4 drums were found in his courtyard. Shanti Devi (P.W. 2) was also examined in the case, who was a lady peon accompanied with the complainant Shri Vipin Kumar Patel but, she has accepted that she was not permitted to visit inside the house of the appellant and she was informed that such kerosene was found from the premises of the appellant. Shanti Devi was a peon in the Food department and she was under administrative control of Food Inspector Shri Vipin Kumar Patel therefore, she was bound to say in favour of his officers. Hence, her evidence has no value. It would be pertinent to note that Assistant Food officer Shri N.K. Chaturvedi was not examined in the case.

According to Shri Vipin Kumar Patel and Shyamlal Choudhary, a half filled drum with kerosene was found in the house of the appellant, whereas 4 drums filled with blue kerosene were found in the back courtyard of the appellant. Though seizure was made by Shri Vipin Kumar Patel of 5 drums with a common document, Ex. P/3 but, it would be appropriate to discuss about the seizure for the drums found in the courtyard and half filled drum found in the house separately. If anything is recovered out of the house of any person then, it is for the recovery officer to prove that it was in possession of that person, who was the owner of the house. Shri Vipin Kumar Patel in para 16 of his cross-examination has accepted that there is entry in the house of the appellant from his shop. House is double storied. There is no door on the back side of the house to enter in the courtyard, whereas a boundary of stones has been created in that courtyard. He has accepted that he and other persons did not visit in the courtyard from the house of the appellant himself but, they visited by crossing the entire street to reach the courtyard which was on the back side and jumped the wall of the courtyard and thereafter, 4 drums could be recovered. When there was no door opening in the courtyard from the house of the appellant then, it was for the prosecution to prove that, that courtyard was in possession of the appellant because other witnesses have accepted that various row houses were there adjacent to the house of the appellant and amongst the persons residing in those row houses, 3-4 persons were running shops of grocery, as run by the appellant. Anyone might have constructed a courtyard in back of the appellant''s house then, the appellant was not responsible for the property kept in that courtyard.

The prosecution has failed to prove that the courtyard was in possession of the appellant. It is not the case of prosecution that when Shri Vipin Kumar Patel went to bring the police for search of the house, in the meantime, 4 drums of kerosene were shifted in the courtyard by the appellant with help of some labours. When Food Inspector Shri Vipin Kumar Patel had been to the police station then, Shanti Devi, peon of the Food department must have stayed there and she could say that the appellant took 4 drums of kerosene out of his shop and house and shifted them to the courtyard. Under these circumstances, where there was no opening in the courtyard from the house of the appellant, it was not proved beyond doubt that alleged 4 drums filled with kerosene were found from the possession of the appellant and for such 4 drums, the appellant could not be made liable.

Shri Vipin Kumar Patel and Shyamlal Choudhary have stated that one half filled drum having 40 liters of blue kerosene was found in the gallery between the shop and house of the appellant. However, a suggestion was given to Shyamlal Choudhary that due to his enmity with the appellant, the appellant was falsely implicated in the matter and one defence witness Kashi Prasad (D.W. 1) was also examined to that effect. It was for the prosecution to prove beyond doubt that such half filled drum of 40 liters was found with the appellant.

In this context, if documents, Ex. P/3, Ex. P/4 and Ex. P/6 are examined then, it would be apparent that in document, Ex. P/3 and Ex. P/6, it is mentioned that 840 liters of blue kerosene was recovered from the appellant, whereas according to the document, Ex. P/4, it would be apparent that only 777 liters of blue kerosene oil was handed over to the Manager of Sewa Sahakari Samiti on supurdginama. There is a huge difference in documents, Ex. P/3 and Ex. P/4 about the quantity of kerosene found in possession of the appellant. Shri Vipin Kumar Patel did not give any explanation as to why the quantity of kerosene in the document of seizure and document of interim custody shown was different. There is a difference of 63 liters of kerosene. Shri Vipin Kumar Patel did not say that the quantity of kerosene mentioned in the documents, Ex. P/3 and Ex. P/6 were mentioned without measuring the quantity of kerosene and when kerosene was given on temporary custody to the Manager of Sewa Sahakari Samiti then, it was measured and it was found to be 777 liters. Looking to a huge difference of 63 liters of kerosene, possibility cannot be ruled out that no half filled drum of kerosene was found inside the house of the appellant and therefore, such quantity of kerosene shown in that semi filled drum could not be given to the Manager of Sewa Sahakari Samiti, Sajjanpur. Hence, looking to the difference of quantity of kerosene in documents, Ex. P/3 and Ex. P/4, the testimony of Vipin Kumar Patel as well as Shyamlal Choudhary cannot be believed that any half filled drum of kerosene was found in the house of the appellant.

It is a strange case, in which Food Inspector Shri Vipin Kumar Patel did not say that it was a routine checking in the village Sajjanpur because only the shop of the appellant was inspected. No other shop was inspected by Shri Vipin Kumar Patel. It is not a case of Food Inspector Shri Vipin Kumar Patel that he received an intimation that the appellant was selling blue kerosene and therefore, he went to enquire the matter. If Shri Vipin Kumar Patel would have received any information from anyone then, without telling the name of that person, he could say that he inspected the shop of the appellant on the basis of intimation received by him. In such a case, he would have taken the police force from the very beginning. Under such circumstances, looking to the conduct of Shri Vipin Kumar Patel, difference in quantity of alleged seized kerosene and quantity of kerosene given to the Manager of Sewa Sahakari Samiti on temporary custody, the testimony of Shri Vipin Kumar Patel appears to be doubtful and it was not proved beyond doubt that anything was recovered from the possession of the appellant.

From the aforesaid discussion, it would be apparent that the prosecution could not prove its case beyond doubt that 4 or 5 drums of kerosene were found in possession of the appellant. Shri Vipin Kumar Patel could not prove beyond doubt that half filled drum of kerosene was recovered from the house of the appellant. Possibility cannot be ruled out that due to instigation of someone, a false case has been lodged against the appellant. It is not a case, in which any advantage of presumption may be received by the prosecution. Since conviction imposed by the trial Court appears to be doubtful then, it would not be necessary to discuss about the sentence of the appellant.

On the basis of the aforesaid discussion, the prosecution could not prove its case beyond doubt that the appellant had possession of prohibited kerosene for sale or he committed an offence under Section 3/7 of Essential Commodities Act, violating the aforesaid control order and the appeal filed by the appellant appears to be acceptable. Consequently, the appeal filed by the appellant is hereby allowed. Conviction and sentence imposed by the trial Court upon the appellant are hereby set aside. The appellant is acquitted from the charge of offence under Section 3/7 of Essential Commodities Act. He would be entitled to get the fine amount back from the trial Court, if he has deposited the same.

The appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.

Copy of the order be sent to the trial Court alongwith its record for information and compliance.