Brahm Kumar vs State of Haryana

A.N. Jindal, J.—This appeal is directed against the judgment dated 30.5.1998 passed by the learned Special Judge, Faridabad, acquitting Silak Ram (non appellant) and convicting accused-appellant Brahm Kumar (herein referred as ''the accused'') for the offence u/s 7 of the Essential Commodities Act, 1955 herein referred as ''the Act'') on the allegations that he was not properly maintaining the stock register and pilfered 221 gas cylinders and 9 regulators. Consequently, he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5000/-.

On 17.9.1992, on the basis of the various complaints from the general public against M/s Surya Gas Agency, a surprised raid under the supervision of S.D.M. M.L. Kaushik (PW1), S.K. Sahi District Food & Supplies Controller, Faridabad, M.K. Mishra Senior Sales Officer Hindustan Petroleum Corporation, Kishan Chand Arora, Assistant Food & Supplies Officer Ballabgarh, S.C. Sikha Manager M/s Sikka Enterprises, Faridabad, Vinay Vardhan Proprietor M/s Allied Agencies Faridabad and some other persons, was conducted. At the time of search of the premises of M/s Surya Gas Agency, it was found that it was lying locked for the last three days. Accordingly, the raiding party sealed the godown with the paper seal of S.D.M. in the presence of the aforesaid persons and they tried to locate the proprietor. They issued notice dated 23.11.1992 (Ex.PB) to appear before the S.D.M.M.L. Kaushik on 30.11.1992 but the accused did not appear as desired. Consequently, the godown of the said premises was unsealed by the S.D.M. M.L. Kaushik and inspection was carried out. On inspection, 265 gas cylinders of Hindustan Petroleum Corporation and five defective gas cylinders were recovered from there which were entrusted to M.K. Mishra (PW2) vide seizure memo Ex.PD. On 10.2.1993, Assistant Food & Supplies Officer, Ballabgarh referred the complaint for registration of the case to the Station House Officer, Police Station City, Ballabgarh along with details of inspection carried out on 17.9.1992 and 30.11.1992. On the basis of the aforesaid complaint, First Information Report (Ex.PJ/1) was recorded. ASI Harnam Singh (PW8) conducted the investigation. Mr. K.L. Arora, M.K. Mishra and Pankaj Jain broke open the seal of the gas agency to conduct the inspection where upon four empty gas cylinders and 29 regulators of Hindustan Petroleum Corporation, two regulators of Indane and one regulator of Bharat Petroleum were recovered from the premises of the said agency. The stock register (Ex.P1) was also found there and according to the latest entry dated 23.8.1992 of the said stock register, there should have been seven filled gas cylinders, 478 empty gas cylinders as also 41 gas regulators. But as per stock register, four gas cylinders of HP and 32 gas regulators were then seized vide memo Ex.PF. SDM M.K. Kaushik had already recovered 270 gas cylinders from the godown of Surya Gas Agency on 30.11.1992 and four gas cylinders were recovered from the show room of the said agency on 16.2.1993 by ASI Harnam Singh. Thus, a shortage of 211 gas cylinders was found while comparing with the stock register. Similarly, shortage of nine gas regulators was also detected. On completion of the investigation challan was presented against the accused.

On finding a prima facie case, they were charged u/s 7 of the Act, to which they pleaded not guilty and claimed trial.

In order to substantiate the charge against the accused, the prosecution examined M.L. Kaushik SDM (PW1), M.K. Mishra (PW2), S.K. Sahi (PW3), Rati Ram Inspector (PW4), Partap Singh (PW5), Kishan Chand (PW6), Manoj Vij (PW7) and Harnam Singh ASI (PW8).

When examined u/s 313 Cr.P.C. both the accused denied all the incriminating circumstances appearing against them. Silak Ram (non appellant) took the stand that he had left the service of M/s Surya Gas Agency two months prior to its closure in the year 1982, therefore, he was not liable. Brahm Kumar accused took the plea that he was ill in those days, therefore, the discrepancies may have occur. However, the case was planted upon him. No evidence was led in defence.

The trial ended in conviction. Hence this appeal.

Arguments heard. Record perused.

Mr. Puneet Sharma, Advocate Amicus Curiae has urged that no reliance could be placed upon the testimony of three witnesses namely M.L. Kaushik SDM (PW1), M.K. Mishra (PW2) and Kishan Chand (PW6). They having given the minute details of the gas cylinders recovered from the premises of M/s Surya Gas Agency on 30.11.1992 and 16.2.1993, have said nothing and simply form their signatures on the various papers. It was also contended that in the absence of any details coming from their mouth, it cannot be said that there was any deficiency of gas cylinders and the regulators. While referring to the Control Order, 1988, he has urged that there was no violation of the provisions of the said Control Order so as to punish him u/s 7 of the Act.

Having examined the rival contentions and appreciated the evidence and having gone through other record of the case, it is noticed that M.L. Kaushik SDM (PW1) and M.K. Mishra (PW2) have given the specific details of the recoveries affected from the godown and the show room of M/s Surya Gas Agency. They also testified having prepared the inspection report Ex.PA and seizure memo Ex.PD and also identify their signatures thereon. According to the inspection report Ex.PA and seizure memo Ex.PD dated 30.11.1992, 270 gas cylinders were recovered from the godown of M/s Surya Gas Agency. Mr. M.K. Kaushik, SDM (PW1) has further stated that he had put his signatures on the seizure memo Ex.PE as per which four gas cylinders and 32 gas regulators and stock register were recovered from the show room of the said gas agency on 16.2.1993. These witnesses were subjected to lengthy cross examination but they have stuck to their statements, recoveries of gas cylinders, regulators and preparation of the inspection report. Any way, S.K. Shahi, District Food & Supplies Controller has given the complete details of the inspection and recoveries from the premises of M/s Surya Gas Agency. The case of the accused is not of complete denial, but he has stated that since he was lying ill at his house, therefore, the discrepancies may have been found in the stock register. However, it has not been denied specifically by him that as per stock register there should have been seven filled and 478 empty gas cylinders and 41 gas regulators. Thus, while comparing with physical verification at the spot, shortage of 211 gas cylinders and 9 gas regulators stand fully established on the record.

Now coming to the other question, whether accused has committed violation of Rule 7(d) of the Liquified Petroleum (Regulation of Supply and Distribution) Order, 1988. Section 6(2) of the Control Order, 1988 reads as under:

Possession, supply or sale of liquified petroleum gas equipments:

(1) xx xx xx (2) No distributor shall, unless authorised to do so by an oil company, supply or sell empty cylinders, gas cylinders, valves or pressure regulators to any person except a consumer.

(3 to 5) xx xx xx

Admittedly, the gas cylinders and regulators are essential commodities about which gas distributor was bound to account for and maintain their records, was not supposed to sell or transfer the same to any person other than consumer. The Essential Commodities Act also requires the appellant to stock register and account books regularly. Director Food & Supplies Department, Haryana issued a notification dated 12.2.1987 (Ex.PM) which require the L.P.G. dealers to fulfill the following conditions:

(i) That every L.P.G. Dealer is required to maintain a Sale and Stock register which should be duly got authenticated from the officer/official of Food and Supplies Department as per Annexure ''A''.

(ii) That every L.P.G. Dealer will display the stock board as per Annexure ''B''.

(iii) That every dealer will submit a weekly report on every Monday to the concerned District Food & Supplies Controller in the prescribed proforma as at Annexure ''C''.

(iv) That every dealer is required to inform the consumer his priority number at the time of booking and issue and deliver the refills on his turn with correct weight of the cylinder without tempering with the seal of the cylinder.

(v) That the L.P.G. Dealers will not compell the consumer to purchase Hot Plate/accessories at the time of releasing new gas connections to the consumers.

(vi) That Oil Companies and their authorised dealers/transporters/Agents will deliver L.P.G. cylinders un-tempered and with correct weight to the distributors for further delivery to the consumers.

Learned Counsel for the appellant has failed to point out if the accused had displayed any rates or maintained the registers properly. Since the stock as per physical verification at the spot was not found as per stock register and deficiency of 211 gas cylinders and 9 gas regulators was found, therefore, certainly the inference would be drawn that the said articles were sold by the accused to the persons other than the consumers. Since the prosecution by proving the stock register and physical verification report has discharged its obligation then it was the duty of the accused to explain as to where the deficient gas cylinders and regulators had gone. In such circumstances, the necessary conclusion which could be drawn is that the accused has committed the violation of the provisions of Section 5 of Haryana Commodities Price Marking and Display Order, 1975 and Clause 6(2) of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988, punishable u/s 7 of the Act.

No plausible defence has been led by the accused in order to prove his innocence.

Resultantly, finding no merit in the appeal, the same is dismissed.