Kamal Kishore vs State of Rajasthan

Veerendr Singh Siradhana, J.—The instant appeal is directed against the judgment and order dated 15th of December, 1986 whereby the Trial Court convicted the accused appellant (Kamal Kishore) for offence u/s 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as ''Act of 1955''), and sentenced him to undergo four months rigorous imprisonment and pay a fine of Rs. 100/- and in default of payment of fine, to further undergo 15 days simple imprisonment. The prosecution case is that the accused appellant being owner of Maheshwari Pustak Bhandar, Kishangarh, District Ajmer, was checked/inspected by the Enforcement Inspector on 25th of August, 1984 at about 11.00 a.m. and during the course of checking, it was found that the appellant did not exhibit the price of the Nationalized Test Books as well as the stock. The two lists did not show stock and price of the exercise books. Further, the lists were not in the prescribed form and there were no stock and sale registers. The appellant, therefore, was charged for violating the mandate of Section 3/7 of the Act of 1955 and for violating Close 15 of the Rajasthan Trace Articles (Licensing and Control) Order, 1980 (hereinafter referred to as ''the Order of 1980'').

On denial of the charges, the appellant was put to trial and the prosecution in order to prove the case examined 9 witnesses in support thereof. Certain documents were also brought on record to substantiate the charge against the accused appellant. In defence, the accused appellant produced two witnesses being Raja Ram (DW-1) and Vinod Kumar (DW-2).

Vijendra Kumar (PW-3) in his deposition before the Trial Court stated that he conducted the inspection of the shop of the accused appellant at 11.00 a.m. and found two prise lists exhibited (Ex. P-5 and Ex. P-6), which were not in the prescribed form. The prise lists also did not contain the details of the exercise books whereas 393 exercise books were found in the stock. Inspection memo (Ex. P-2) was prepared, which has been signed by the accused appellant and the Enforcement Officer (PW-3).

Man Mohan Singh (PW-2) whose shop is situated in front of the shop of the accused appellant has supported the case of the prosecution on material particulars and the fact of inspection/checking by the Enforcement Officer (PW-3). The accused appellant was examined u/s 313 of the Code of Criminal Procedure, 1993 (hereafter referred to as ''the Code'' for short) wherein he deposed that the Enforcement Officer (PW-3) conducted the inspection/checking right when the accused appellant opened his shop and there was no time for the accused appellant even for dusting and there was no opportunity for him to exhibit the price and stock in the lists.

The learned counsel for the accused appellant assailing the impugned judgment and order dated 15th of December, 1986 submitted that the provisions of Clause-15 of the Order of 1980 were not attracted so far as the exercise books under the brand ''chetak'' are concerned and further, out of the total stock of 393 exercise books, the exercise books of ''chetak'' brand were only 53 and rests of the exercise books were of different brand. It was the case of the accused appellant that the paper for other exercise books was not distributed on control rate or the price was regulated by some other law. Concluding his arguments, the learned counsel for the accused appellant stressed that at best, even if the entire prosecution case was believed, it was only a technical offence and there was no intention on the part of the accused appellant to commit the offence. The learned counsel for the accused appellant emphatically submitted that keeping in view the nature of the allegations and the offence being technical in nature as well as the fact that the accused appellant is first offender and the incident dates back to the year 1984 i.e., almost 3 decades, lenient view deserves to be adopted and the accused appellant deserves to be dealt with under the provisions of Section 360 of the Code. Attention of the Court was invited to the law declared by the Hon''ble Apex Court of the land in case of Harivallabh and another Versus State of M.P.; (2005) 10 SCC 330.

Per contra, the learned Public Prosecutor for the State has supported the impugned judgment but there was nothing to counter the arguments made on behalf of the accused appellant that the accused appellant being a first offender.

I have heard the learned counsel for the accused appellant and the learned Public Prosecutor for State.

The defence of the accused appellant is contrary to the documentary evidence available on record for the reason that the two price lists (Ex. P-5 and P-6), which were exhibited on the shop with date shown as 25th of August, 1984, conclusively proves the fact that the accused appellant had ample opportunity and time to exhibit the price and stock in the lists as per law after opening the shop. The lists also exhibited the stock and price of other articles in the shop of the accused appellant. It was not the defence of the accused appellant that he prepared the two lists (Ex. P-5 and P-6) on 24th of August, 1994 for the next day i.e., 25th of August, 1984.

Ex. D-1 was brought on record as a documentary evidence to substantiate the defence to the effect that the accused appellant purchased the exercise books on the same day from Ajmer and brought the same to his shop but this defence appears to be an afterthought and the presence of the defence witnesses Raja Ram (DW-1) and Vinod Kumar (DW-2) is highly doubtful at the time of inspection/checking since no such suggestion was put in the cross-examination to any of the witnesses. If at all the two witnesses, namely, Raja Ram (DW-1) and Vinod Kumar (DW-2) were present at the time of inspection/checking, then such a suggestion in the cross-examination of the prosecution witnesses must have appeared. Moreover, the accused appellant even while he was examined u/s 313 did not disclose the presence of these two defence witnesses.

It is not disputed that the incident dates back to the year 1984 i.e., more than 29 years when the incident occurred and the appellant is a first offender, and in the peculiar facts and circumstances of the case, I am of the view that the appellant be dealt with under the provisions of Section 360 of the Code. In the result, the appeal is partly allowed. The judgment and order dated 15th of December, 1986 of conviction and sentence of fine awarded to the accused appellant is maintained. However, the sentence of imprisonment awarded to the accused appellant is modified and it is directed that if he executes a personal bond in a sum of Rs. 30,000/- (Rupees: Thirty Thousands only) with one surety in the like amount to the satisfaction of the Trial Court with stipulation to appear and receive sentence as and when called upon to do so within a period of one year and in the meanwhile maintains peace and good behaviour, the accused should be released. The bonds should be furnished within two months from the date of receipt of copy of this order, failing which the Trial Court shall take steps for execution of the sentence awarded to the accused appellant.