Harmesh Kumar vs State of Haryana

K.S. Kumaran, J.

Ranbir Mohan, ASI, (PW8) of Police, Incharge of Police Post Naneola, got a secret information on 9.7.1985 at about 2.30 p.m. that Harmesh Kumar son of Parshotam Dass (Appellant herein), Joginder Kumar son of Pawan Kumar, who are partners in the firm M/s. Harmesh Kumar Sanjay Kumar dealers of kerosene oil and the Depot Dealers, were making spurious diesel out of the kerosene of the ration quota, and were selling the same as diesel to the public. On receipt of such information ASI Ranbir Mohan (PW8) sent the ruka Ex.PK to PS Ambala Sadar, on the basis of which a formal FIR (Ex.PK/1) was registered by ASI Mehar Singh. ASI Ranbir Singh (PW8) alongwith his police party and Jagir Singh (PW6) Sarpanch of village Naneola, Gurnam Singh, a member of Panchayat of that village went to the depot concerned, found same locked, and on the direction of ASI Ranbir Mohan, Sarpanch Jagir Singh put another lock on the depot, and also left constables to guard the place.

On the next morning (10.7.1985) ASI Ranbir Mohan (PW8) along with Nasib Singh (PW7) and Karam Singh reached the said Depot. Harmesh Kumar, one of the accused was produced, who removed his lock and the Sarpanch Jagir Singh removed his lock. On search it was found that there were two drums each containing 220 litres, according to the prosecution, of spurious diesel, and two other drums, each containing 220 litres of kerosene oil. Samples were taken from kerosene oil and the alleged diesel and sealed, and the four drums were seized under recovery memos Ex.PB and Ex.PC, attested by Karam Singh and Nasib Singh. The stock register and the sale register of kerosene oil (Ex.P1 and Ex.P2) were seized, and a perusal of the same showed the purchase of two thousand litre of kerosene oil on 2.7.1985, and the sale of a thousand litres of kerosene oil up to 8.7.1985. Two drums contained 220 litres of kerosene, oil each, totalling to 440 lts. and so, there was, according to the prosecution, a shortage of 560 lts. of kerosene oil.

Since the partnership, according to the prosecution, consisted of Harmesh Kumar (appellant), Sanjay Kumar, Joginder Kumar and Vasu Dev, they were all arrested on different dates. Since Sanjay Kumar was found to be below 16 years of age, separate action was directed to be taken before the Juvenile Court. As against the other three, namely Harmesh Kumar, Joginder Kumar and Vasu Dev, a chargesheet was filed under section 7 of the Essential Commodities Act, before the Special Judge.

The learned Special Judge framed a charge against these three accused for not keeping a true account of the receipt and disposal of the kerosene oil found in the premises of the firm and thereby to have contravened the provisions of clause 9 of the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977, punishable under section 7 of the Essential Commodities Act. The prosecution examined eight witnesses apart from letting in documentary evidence.

After considering the evidence placed before him, the learned Special Judge found that according to the stock register and sale register, there should have been 1,000 lts. of kerosene; that the kerosene recovered came to 880 lts. and, therefore, there is shortage of 120 lts. which was not in conformity with the entries of the stock and the sale register. The learned Special Judge also found that there was no evidence to show that Vasu Dev, the first accused, was either a partner of the firm or that he took active part in the management of the business and, therefore, acquitted him, giving him the benefit of doubt. But the learned Special Judge convicted Harmesh Kumar and Joginder Kumar for having contravened clause 9 of the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977, and thereby committing an offence punishable under section 7 of the Essential Commodities Act. He sentenced each of them to imprisonment till the rising of the Court, to pay a fine of Rs. 500/ each, and in default to undergo imprisonment for one month.

Accused Harmesh Kumar alone has come forward with this appeal. The learned counsel appearing for him contends that though, ASI Ranbir Mohan (P.W. 8) is alleged to have received a secret, information and then raided the Depot in the presence of independent witnesses, and found the deficiency in the quantity of kerosene and the difference between the registers and the actual stock, even the socalled independent witnesses have not supported the prosecution case and have stated that there were four full drums apart from a drum which was half full. So, he contends that in all, there was a thousand lts. of kerosene oil, and there was no discrepancy between the registers and the actual stock.

The learned counsel for the appellant contends that the sample collected from the two drums which were said to have contained spurious diesel were kept for chemical analysis, and it was reported that the sample was not diesel. He also contends that the prosecution did not get it checked and ascertained whether it was kerosene oil or not, and ultimately the trial Court also held that there was 880 lts. of kerosene oil as against 1,000 lts. But, he contends that inasmuch as the independent witnesses have stated that four full drums and a half full drum were being loaded in a cart, that means that there was 1,000 lts. of kerosene oil (because one full drum contained 220 lts.). A perusal of the evidence of PW1 Dalip Singh shows that when he reached the shop around 7.00 a.m. he found five drums were being loaded on the cart, and out of them four drums were full and one was half full. He did not support the prosecution case. PW7 Nasib Singh also stated in his evidence that he found four drums full and one drum half full loaded in the cart. He also did not support the prosecution case.

The learned counsel for the appellant, therefore, contends that in the circumstances, where these two independent witnesses have not supported the case of the prosecution, the appellant/accused is entitled to be acquitted. The learned counsel for the appellant also relied on a decision of this Court in Balwant Singh v. State of Haryana, 1994(2) RCR(Crl.) 19 . That was a case where the police party, on receipt of secret information, allegedly conducted a raid and found a working still and illicit liquor. The revision petitioner before the High Court was also allegedly caught redhanded, distilling illicit liquor. The still was cooled, dismantled and articles of still were seized which included a drum used as a boiler, having 12 kgs. of lahan. Sample was taken and it was got chemically examined. The revision petitioner before the High Court, namely the accused, was chargesheeted for an offence under section 61(1)(c) of the Punjab Excise Act. The trial Court convicted and sentenced the accused/revision petitioner. The appeal filed by the accused was dismissed by the learned Sessions Judge. On revision to this Court, it was observed that the evidence on record showed that the raiding party was organised on receipt of secret information, and that various persons met the investigating officer but none of them was taken into confidence by the investigating officer. The Chowkidar who was alleged to have been contacted by the investigating officer denied that he ever refused to join the raiding party or that a ruqa was sent through him. It was held by this Court that the evidence of official witnesses lacked corroboration from any independent source; that the conduct of the investigating officer was also suspicious in not taking anyone into confidence before proceeding to the place of raid, and in these circumstances, it cannot be said that the charge against the revision petitioner was proved beyond reasonable doubt. For these reasons, the conviction of the revision petitioner was set aside and he was acquitted.

I agree with the learned counsel for the appellant. The learned Sessions Judge himself has found that the quantity of kerosene seized would come to 880 lts. as against 1,000 lts. shown in the stock register. The discrepancy between the actual stock and the stock register and the sale register was only with regard to 120 lts. But, both PW1 Dalip Singh and PW7 Nasib Singh have stated in their evidence that four full drums and one half full drum were being loaded in the cart. That means nearly 41/2 drums of kerosene was seized. Each drum contained 220 lts. 41/2 drums would come to exactly 990 lts. but, the actual quantity in the drum which was half full was not measured. It could have been even more than 120 lts. It is a case where Ranbir Singh PW8 went with his police party on a secret information. The independent witnesses have not supported the case of the prosecution and their evidence shows that there could have been 1,000 lts. of kerosene oil. It may be that the evidence of PW8Ranbir Singh and the evidence of PW2 Jaspal Singh (Head Constable) could have been relied upon for convicting the appellant. But it is seen from the evidence of PW7Nasib Singh that ASI Ranbir Singh (PW8) was a tenant under the appellant Harmesh Kumar. The case of the appellant is that Ranbir Singh (S.I.) who became a tenant under him 11/2 months prior to this occurrence did not pay the rent and was annoyed on the demand for rent and, therefore, has filed this false case against the appellant. While PW7 stated that Sl Ranbir Singh PW8 was a tenant under the appellant Harmesh Kumar, PW8 Ranbir Singh, Sl even denied that he was a tenant. He also denied that he failed to pay rent or that he was annoyed when Harmesh Kumar demanded rent and, therefore, he has foisted this case. So, it is apparent that PW8 even wants to deny that he was a tenant under Harmesh Kumar whereas the evidence of PW7 shows that he was a tenant under Harmesh Kumar appellant. In these circumstances, when it is seen that there is a reason for the police to foist a case against the appellant. Harmesh Kumar, the evidence of the official witnesses alone cannot be relied upon. Therefore, I am of the opinion that the appellant is entitled to benefit of doubt and has to be acquitted.

Accordingly, the appeal is allowed, setting aside the conviction of the accusedappellant and the sentence passed against him. The fine, if any, paid by him shall be refunded to him.