Bijoy Kumar Mishra vs State of Orissa

L. Rath, J.—The conviction of the Petitioner u/s 36(d) of the Weights and Measures Act, 1958 (for brevity ''the Act'') having been confirmed in appeal with modification of sentence reducing the fine from Rs. 250/- to Rs. 100/-, in default to undergo S.I. for one week, he has preferred this revision.

Originally the Petitioner stood charged u/s 36(b) and (d) of the Weights and Measures Act on the allegations of not maintaining uptodate stock register having made entries upto the end or July, 1980 only and that while the Senior Inspector of Weights and Measures, P.W. 2 inspecting the spot had seized documents and Was preparing the seizure-list, he having snatched away the stock register and the purchase memos and having refused to sign the seizure-list.

The learned trying Magistrate acquitted the Petitioner of the charge u/s 36(b) of the Act of having refused to permit the Inspector to inspect and verify the weights and measures instruments, etc. but convicted him u/s 36(d) for his having snatched away the seized documents.

So far as the allegations relating to the offence u/s 36(d) of the Act are concerned; they are sought to be established by the prosecution through the sale evidence of P.W. 2. It is the admitted case as stated by P.W. 2, that during the raid he was accompanied by P.W. 1, the A.S.I. of Police (Vigilance), and P.W. 3, a peon But while P.W. 2 has stated regarding the conduct of the Petitioner of snatching away the seized documents, no such fact is whispered either by P.W. 2 or P.W. 3 and they are completely silent about it, P.W. 3 who is a peon of P.W. 2 has specifically stated of P.W. 2 having verified the documents of the Petitioner and then submitting a case against him. It is the further admission of P.W. 2 that though after the seizure the document were taken away by the Petitioner, he never reported the matter to the mobile Magistrate accompanying them either by written report or verbally. He also contradicted him self again stating that when he informed the matter to the mobile Court, the Court simply directed to file prosecution report and that when the Court sent P.W. 1 to bring the Petitioner before it, it was found that he had closed his shop and had gone away. No such fact is deposed to by P.W. 1 at all. Such conduct of the Petitioner which amounted to an offence was also not reported to the police by P.W. 2. It would be reasonable to assume that if actually the incident as complained by P.W. 2 had taken place, then P.Ws. 1 and 3 would have also borne testimony to the same. It is of course true that though the Petitioner in his statement before the court has spoken of enmity of P.W. 2 against him due to some critical publication made by his brother who is a journalist, yet the same has not been put to P.W. 2 in cross-examination. But the glaring omissions in the statements of P.Ws. 1 and 2 coupled with the evidence of P.W. 2 himself lead to the reasonable conclusion of such offence by the Petitioner being not established. There is in law no inherent infirmity in basing a conviction upon the sale testimony of a witness, but however it is well settled that for such statement to be made the basis of a conviction, it must be completely irreproachable and without any blemish whatsoever. Taken as a whole, the evidence of P.W. 2, does not appear to be of that character. The Courts below have lost sight of such giaring omissions in the evidence of the prosecution witnesses which has resulted in failure of justice. In that view of the matter, the prosecution cannot be said to have brought home the charge against the Petitioner u/s 36(d) of the Act.

In the result, the revision is allowed. The conviction and sentence of the Petitioner are set aside and he is acquitted of the charge.