Harjit Singh vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 11.11.1986 passed by the Special Judge, Ambala by which Satwant Singh and Harjit Singh, appellants have been convicted under Section 7 of the Essential Commodities Act for contravention of the provisions of Clause (3) of the Cement (Quality and Control) JUDGMENT 1962 and sentenced to imprisonment till the rising of the Court. They were also sentenced to pay a fine of Rs. 500/ each and in default of payment of fine, to undergo further R.I. for one month each. Gurvinder Singh, coaccused of the appellants was, however, acquitted of the charge.

Briefly stated, the facts of the prosecution case are that on 25.11.1985, Anil Kumar, SI/SHO, P.S. Panchkula, along with Som Nath, ASI and Prem Parkash, Constable was present around 4 p.m. in the chowk of Sectors No. 11/15, Panchkula in connection with the investigation of case FIR No. 152 of 1985 and No. 162 of 1985 under Section 457/380 IPC, when he got secret information that proprietor of M/s Deep Trading Co., House No. 1111, Sector 15, Panchkula, was selling spurious cement; that no price list or stock position was displayed at the premises of the depot; that depot holder was not maintaining the record properly, that Harjit Singh son of Gurnam Singh, who was employed by the said Company, was selling the cement and that if a raid was conducted, spurious cement could be recovered. At this, S.I. Anil Kumar sent ruqa, Ex. PG, to the police station, Panchkula; on the basis of which formal FIR, Ex. PG/1 was registered under Section 7 of the Essential Commodities Act as also under Section 420 IPC. Thereafter, SI Anil Kumar joined Phool Singh, Inspector, Food and Civil Supplies in the police party and raided kothi No. 1111, Sector 15, Panchkula, where Harjit Singh son of Gurnam Singh was found present and 45 bags of cement were lying in one room. Those cement bags were got photographed and thereafter 200 grams of sample was separated from each bag of cement, and these were firstly put into polythene bags and then into cloth bags, and thereafter sealed with the seal bearing inscription ''AD''. The seal after use was handed over to Phool Singh, Inspector. The Investigating Officer took into possession the remaining quantity of cement, the sample cement, one board with the writing M/s Deep Trading Co., one licence No. AAR/CE320 valid upto 3.3.1987 M/s Deep Trading Co., one table, two chairs and also arrested Harjit Singh, who on interrogation disclosed that the proprietors of M/s Deep Trading Co. were Satwant Singh and Gurvinder Singh, residents of Dhakoli, while he was working as their salesman. He also disclosed that the stockregister, sales register and bill books were kept by Satwant Singh in his kothi at village Dhakoli. Thereafter, the Investigating Officer also seized the stock register, sales register and bill book. The samples of the cement and the other articles seized were entrusted to the Moharrir Head Constable, who sent the samples to Forensic Science Laboratory, Madhuban and as per report, Ex. PA, all the 10 samples, which were at random taken out of the 45 samples, were found to be of adulterated samples of ordinary portland cement. After completion of the investigation, challan was presented against the accused.

To prove its case, the prosecution examined PW1 Hans Raj Aggarwal, PW2 Mohinder Singh, PW3 Suresh Chand, PW4 Phool Singh, Inspector, Food and Civil Supplies and PW5 SI/SHO Anil Kumar, Investigating Officer. Besides affidavit, Ex. PJ of MHC Om Parkash was also tendered in evidence.

PW1 Hans Raj Aggarwal, Senior Scientific Officer, F.S.L. Madhuban, deposed out of 45 samples of this case received in the laboratory, only ten samples were analysed and their testing revealsed that they were adulterated ordinary portland cement. He also proved his report, Ex. PA, in this regard. He further stated that the remnants of those ten analysed samples and the remaining 35 samples were returned to the police station concerned.

PW2 Mohinder Singh deposed that he was owner of House No. 1111, Sector 15, Panchkula and he had let out a portion thereof to Satwant Singh son of Gurcharan Singh, r/o Dhakoli, vide rent note, Ex. PB, executed by Satwant Singh. PW3 Suresh Chand produced photostat copy, Ex. PC of the application made by Satwant Singh s/o Gurcharan Singh for grant of licence in the name of Deep Trading Co. for dealing in cement. He also proved photostat copy of the affidavit Ex. PD; on the basis of which licence, Ex. PE, was issued on 23.1.1985.

PW4 Phool Singh, Inspector, Food & Supplies deposed that he was joined by the police party headed by SI Anil Kumar and that a raid was conducted at house No. 1111, Sector 15, Panchkula M/s Deep Trading Co., where Harjit Singh was found present and 45 bags of cement were also lying. He further stated that out of each bag, 200 grams were separated as sample and those were sealed and that the cement bags, licence, two chairs, one table and board, Ex. P1 were seized and taken into possession vide recovery memo, Ex. PF, which was attested by him.

PW5 SI Anil Kumar corroborated all the facts of the prosecution case that on secret information he had sent ruqa, Ex. PG to the Police Station, Panchkula, where formal FIR Ex. PG/1 was recorded; that he had joined Phool Singh, Inspector and raided M/s Deep Trading Co., Sector 15, Panchkula and found Harjit Singh sitting there, while 45 bags of cement were lying there; that he separated samples of 200 grams out of the each bag and sealed the same separately and that one board, Ex. P1, and licence, Ex. PE, were also taken into possession along with the cement bags, vide recovery memo, Ex. PF. He further stated that no price list or stock position was found displayed at the said premises. He also prepared the rough site plan, Ex. PH, arrested the accused and after receipt of report of FSL, that the cement was adulterated, presented a challan against all the accused.

When examined under Section 313, Criminal Procedure Code, appellant Harjit Singh admitted that he was a salesman and that 45 bags of cement were lying at the Depot, which were taken into possession by the police. Appellant Satwant Singh also admitted that he was proprietor of the firm M/s Deep Trading Co., Panchkula, which was dealing in cement and that Harjit Singh was employed by him as salesman. He further stated that he had no knowledge regarding seizure of 45 bags of cement from the premises by the police as he had entrusted the entire work to Harjit Singh. However, the accused did not lead any defence in their evidence.

Mr. Harbhagwan Singh, Sr. Advocate, learned counsel for the appellants contended that in order to prove the seizure of 45 bags of cement from the house search, prosecution was required to comply with the provisions of Section 100(4) of Criminal Procedure Code (hereinafter referred to as ''Code'') by joining two respectables persons of the locality before search was conducted. He contended that as no person from the locality was joined and compliance of Section 100(4) of the Code was not made and, therefore, seizure was illegal, and the appellants were entitled to be acquitted. He further contended that Harjit Singh, appellant only admitted the presence of 45 bags of cement at M/s Deep Trading Co. and not taking of samples therefrom or sealing the same. He also pointed out that according to S.I. Anil Kumar (PW 5), after sealing the samples, the seal was given to Phool Singh, Inspector, Food & Civil Supplies but Phool Singh (PW4) did not corroborate the same. He, therefore, contended that neither taking of sample from the cement bags was proved nor was it proved that the samples remained intact and, as such, the trial had vitiated and the appellants were entitled to acquittal.

Mr. Jaidip Duhan, Advocate, for A.G. Haryana, contended that the accused were charged for contravention of the provision of Clause (3) of the Cement (Quality and Control) JUDGMENT 1962 for storing spurious cement, which offence was punishable under Section 7 of the Essential Commodities Act. He referred to the testimony of PW2 Mohinder Singh, who had stated that he was owner of the house No. 1111, Sector 15, Panchkula; a portion of which he had let out to Satwant Singh son of Gurcharan Singh resident of Dhakoli, vide rent note, Ex. PB in his favour. He then referred to the copy of application, Ex. PC and copy of the affidavit Ex. PD which were admitted to have been made by appellant Satwant Singh for getting the licence for selling nonlevy cement under the name of M/s Deep Trading Co., No. 1111, Sector 15, Panchkula. He also referred to licence, Ex. PE, dated 23.1.1985 issued in favour of Satwant Singh, which was proved from the testimony of Suresh Chand (PW3), an assistant from the office of District Food and Civil Supplies Controller. He further urged that so far as the seizure of 45 bags of cement from the premises of M/s Deep Trading Co. at House No. 1111, Sector 15, Panchkula was concerned, it was proved from the testimony of Phool Singh, Inspector, Food & Civil Supplies and S.I. Anil Kumar (PW5). He further contended that accused Harjit Singh, Salesman had admitted the said seizure and his coaccused Satwant Singh, depot holder, had not denied the seizure.

After hearing the learned counsel for the parties, I find no force in the argument raised on behalf of the appellants. So far as believing or disbelieving of the testimony of the official witnesses is concerned, the law is clear that unless some hostility is alleged, their evidence cannot be disbelieved simply because they were public servants. It has been held by this Court in State of Punjab v. Rameshwar Dass, 1975 PLR 189 that it was basically wrong, without other cogent grounds, to consider the public servants as untrustworthy witnesses in respect of their activities in performance of their official duties, mainly, because of their official status, unless the evidence was considered to be suspicious and that the conviction of the accused could not be sustained on the statements of official witnesses. It was further held that the presumption that a person acts honestly applies as much in favour of police officers as of other persons and it was not a judicial approach to distrust or suspect them without cogent grounds. On this point, the Apex Court has also held in Nathu Singh v. State of Madhya Pradesh, AIR 1973 Supreme Court 2783, that the mere fact that the prosecution witnesses were police officers, was not enough to discard their evidence in the absence of evidence of their hostility towards the accused.

Moreover, in this case, the question of illegal search for not joining the two witnesses of the locality as provided in Section 100(4) of the Code did not arise, as possession of 45 bags of cement was specifically admitted by accused Harjit Singh as he had stated that these bags which were lying at the depot, were put into carts and taken by the police from there. Moreover, possession of said cement bags has also not been denied by co accused Satwant Singh. So the question remains as to whether the samples of the cement were separated from the bags and for that, the testimony of Phool Singh, Inspector, Food and Civil Supplies and S.I. Anil Kumar could not be disbelieved as the samples taken had reached the F.S.L., Madhuban and analysed there, as proved from the testimony of Hans Rai Aggarwal, Senior Scientific Officer, who appeared as PW1.

Moreover, in the present case no hostility was alleged against S.I. Anil Kumar or Phool Singh, Inspector, Food & Civil supplies. Both the PWs categorically stated that the samples from each bag were separated and firstly put into separate polythene bags and then into the cloth bags. So far as separating the sample from each cement bag was concerned, it was proved from the testimony of Phool Singh, Inspector, Food & Civil Supplies and S.I. Anil Kumar. The cement was proved adulterated vide report, Ex. PA, made by Hans Raj Aggarwal, Senior Scientific Officer.

In view of the above discussion, there is no merit in the appeal and the same is hereby dismissed.