Kapil Sao and Karan Prasad vs The State of Bihar (Now Jharkhand)

Pradeep Kumar, J.—No body appears on behalf of the appellant on repeated call. On the request of the Court Mr. Tapas Kabiraj has appeared and argued the case as amicus curie.

This appeal is directed against the judgment of conviction and order of sentence dated 8th March, 2000 passed by Shri S.N. Singh, Special Judge, E.C. Act, Gumla in G.R.Case No. 45 of 1987 (Gumla P. S. Case No. 213 of 1987), by which judgment the learned Special Judge found the appellants guilty u/s 7 of the Essential Commodities Act and sentenced them to undergo rigorous imprisonment for 3 months.

It is submitted by the learned Counsel for the appellants that from the prosecution case itself it will appear that a raid was conducted at about 7 P.M. in the evening and a tractor loaded with kerosene oil also seized by the police party and hence the learned court below convicted the appellants. One drum of kerosene oil loaded on the tractor belonging to the ration shop of the appellant having 400 liters of kerosene oil, in that view of the matter, there was no shortage. Moreover, the appellants have not been given the benefit of Section 366 Cr.P.C. since it was a first offence and a technical offence only.

On the other hand, learned Counsel for the State has opposed the prayer, but admits that benefit of Section 366 Cr. P. C. was not given to the appellants.

After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a first information report given by Anchal Adhikari, Gumla stating therein that he along with officials of the Supply Department, Gumla, conducted a raid in the fair price shop of appellant, Kapil Sahu at village Murkunda on 5.12.1987 at 7 P.M. and found the following irregularities:

(I) There should have been about 462 litres of kerosene oil, but only 65 litres of kerosene oil was found, which was in the Zimanama of one Dharamdayal Sahu.

On the basis of the said F.I.R, the police registered a case u/s 7 of the Essential Commodities Act against both the accused-appellants and during trial 8 witnesses were examined. It appears that P.W. 2, Dharamdayal Sahu, has stated that on 5.12.1987 the Circle Officer has seized 65 litres of Kerosene oil from the shop of appellant, Kapil Sahu. He also stated that on the same day Circle Officer gave him on Zimanama, in which 8 drums of kerosene oil containing 200 litres each out of which 4 drums (800 litres) belonging to Mohan Choudhary and 3 drums (600 litres) of Kerosene oil belonging to Ban Bihari Sahu and 1 drum (65 litres) of kerosene oil belonging to appellant, Kapil Sao. He proved the seizure-list, which is as Ext.-4 and another prosecution witness P.W.3, Ram Mohan Choudhary also stated that 800 litres of kerosene oil was loaded from the shop of Sahu Brotheres, Gumla and 3 drums belonging to Bandbihari Sao and 1 drum beloinging to appellant, Kapil Sahu, which was loaded on the same tractor and they were seized. He has proved his signature over the seizure-list, which is marked as Ext.-5. P.W.4, Dayanand Bharti stated that the said tractor with 1 drum of kerosene oil reached at 8 P.M. to village Murkunda that is just after the seizure-lists were made having 400 litres of kerosene oil and they were received by the shop owner after presentation of the cash memo. However, since the shop was raided before arrival of the kerosene oil, which seems was subsequently purchased and brought to the shop.

In that view of the matter, the conviction of the appellants u/s 7 of the Essential Commodities Act cannot be disturbed and the allegations have been proved by the evidence of witnesses. Although, the defence has tried to explain the deficiency, but admittedly the deficiency was tried to be covered up after the same was detected. However, since it was the first offence committed by the appellants, they should have been given benefit of Section 360 Cr. P. C, in that view of the matter, since the appellants have remained in custody during trial for sometime and also have undergone a long torture during trial and appeal right from 1987. Hence, the sentence already undergone during trial with rigor of trial and appeal, thus he has sufficiently been punished. The sentence of 3 months R.I. is altered to the period already undergone during trial.

Accordingly, the appeal is dismissed with alternation in the sentence.

The appellants are on bail, they are released from the bondage of their bail bond.