Jai Parkash vs State of Haryana

Harbans Singh Rai, J.

Jai Parkash and Khem Chand were prosecuted in the Court of Shri Babu Ram Gupta, Presiding Officer, Special Court, Karnal, under Section 7 of the Essential Commodities Act and Section 120B, IPC for infringement of Haryana Kerosene Dealers Licensing JUDGMENT 1976. Khem Chand was acquitted. Jai Parkash was held guilty of infringement of Haryana Kerosene Dealers Licensing JUDGMENT 1976, and convicted under Section 7 of the Essential Commodities Act, but was acquitted of the charge under Section 120B, IPC. He was sentenced to undergo R.I. for three months and to pay a fine of Rs. 1000/, in default of which to undergo R.I. for two months under Section 7 of the Essential Commodities Act. Feeling aggrieved, he has filed this appeal.

Prosecution case in brief is that on September 13, 1985, S.I. Kidar Singh PW was present at Jundla Gate, Karnal, for patrolling. H.C. Same Singh and Constable Pokhar Dass were with him. Ved Parkash Gupta met him and they were talking. In the meantime, S.I. Kidar Singh received secret information that Jai Parkash was seiling kerosene at the rate of Rs. 4/ per litre in his shop situated at Hanuman Gali, Karnal, and if raid was conducted kerosene oil could be found in his shop. A raiding party was organised. H.C. Same Singh, who was in uniform, was directed to change his clothes and to wear plain clothes. A currency note of Rs. 20/ Exhibit P1 was handed over to him. He was also given a can of 5 litres capacity and was directed to purchase kerosene oil from Jai Parkash accused. Ved Parkash was sent as a shadow witness. Same Singh went to the shop of the accused and talked to him. The accused agreed to sell kerosene oil at the rate of Rs. 4/ per litre. Same Singh gave currency note of Rs. 20/ Exhibit P1 to the accused. Accused went near the drum with an intention to take kerosene oil from the drum. A signal was given by Same Singh and police party reached. The accused was arrested. Currency note of Rs. 20/ and the drum containing 200 litres of kerosene oil were taken into possession. One bottle of kerosene was taken as a sample and sealed. After investigation, the accused Jai Parkash and Khem Chand were prosecuted. The learned Special Judge acquitted Khem Chand accused and also acquitted Jai Parkash of the charge of conspiracy but convicted him under Section 7 of the Essential Commodities Act holding that he is a dealer and 200 litres of kerosene oil were in his possession.

Prosecution in support of its case examined Ravinder Kumar PW1, who stated that he never purchased any kerosene oil from Jai Parkash accused. He was declared hostile and crossexamined by the Public Prosecutor. PW2 Inspector Rajeshwar Lal presented the challan against the accused in the Court. PW3 Ved Parkash also did not support the prosecution and was declared hostile. PW4 H.C. Same Singh and PW2 Inspector Kidar Singh supported the prosecution case and stated that Same Singh went to the shop of the accused and the accused agreed to sell kerosene oil to him and on raid 200 litres of kerosene oil was recovered from his possession.

After close of the prosecution case, the accused in his statement denied the prosecution allegations and pleaded as under :

"I am innocent. The police came to my Depot in the evening. On that day I had sold 365 litres of kerosene oil against entries made in the sale register.

On the morning of 13.9.1985, I had an opening balance of 1185 litres of kerosene oil out of which I sold 365 litres of kerosene oil and the remaining 820 litres of kerosene oil is now lying on my shop.

I was called to the police Station at about 11 p.m. They asked me to be a witness against Jai Parkash. I refused and, therefore, they implicated me in this case falsely."

I have heard the learned Counsel for the parties and gone through the record.

Mr. S.S. Rathore, Advocate, learned Counsel for the appellant has challenged the conviction of the appellant on a number of grounds. He has argued that no independent witness was joined at the time of raid, although the shop of the accused from where the kerosene oil was recovered is situate in a bazar and the police party, after receiving secret information covered a distance of more than 100 yards through the bazars to reach the shop of the accused. He has further contended that it is not denied that a lot of people were in the bazar.

The learned Counsel for the appellant has further challenged the conviction of the appellant on the ground that the appellant is not a dealer as no evidence has been led to show that he was selling kerosene oil. The PWs examined on this point have not supported the prosecution case.

The learned Counsel for the appellant has also contended that if the entire prosecution case is accepted, their is no material produced by the prosecution to show that the material recovered from the shop of the accused was kerosene oil.

I have considered the arguments and fine some force in the same. It is in the prosecution evidence that at the time of seizure of the kerosene oil, one bottle was taken out of it as a sample and was sealed. The prosecution has not led any evidence to show whether that sample was sent for chemical analysis or not. It can be presumed that when a sample was taken out, it must have been sent to the laboratory for analysis, but no report has been tendered in evidence to show as to what was the result of the analysis. In the absence of the report, it cannot be presumed that the material recovered from the shop of the accused was kerosene oil. In this view of the matter findings on other submissions of Mr. Rathore may not be given. The accusedappellant is entitled to acquittal on this ground alone that there is no evidence to prove that the material recovered from his shop was kerosene oil.

In the circumstances of the case, the appeal of the appellant is exception and he is acquitted of the charge. His conviction and sentence ordered by the Presiding Officer, Special Court, Karnal, are set aside.