Om Prakash vs State of Himachal Pradesh

Bhawani Singh, J.—This appeal arises out of the judgment of Judge, Special Court, for Kangra, Hamirpur, Una and Mandi Divisions in Case No. 6-1/85 decided on 28-10-1986 for offences under Sections 3/7 of the Essential Commodities Act, 1955 read with clauses 5(a) and 5(c) of the Himachal Pradesh Commodities Price Marking and Display Order, 1977. By this judgment, the Appellant has been sentenced to three months simple imprisonment and to a fine of Rs. 300/-. In default of payment of fine, to further undergo simple imprisonment for 15 days.

The facts, in brief, are that the Appellant is running a Karyana shop at Mehatpur in the name and style of Om Prakash Kamal Kishore. Kamal Kishore, one of the partners, has been acquitted and no appeal has been filed against his acquittal by the State.

On 2-9-1985, Shri Shakti Singh (P.W. 1) and Roshan Lal (P.W. 2), Inspectors, Food and Supplies, posted at Una and Bangana, inspected the shop of the Appellant along with Chander Mohan (P. W. 3) and Ishwar Dass and it was found that the rate list (Ex. PA) did not contain ''Sapan Baby Milk'' and ''Dal Chana'' although they were actually found kept in the shop for the purpose of sale. These were seven tins of milk and the same were sealed besides 6 quintals and 7 kgs. ''Dal Chana''. It was also detected that the rate of ''Moong Sabat'' was exhibited as Rs. 6.25 paise per kg and credit cash memos, issued by the Appellant showed Rs. 7.50 paise to have been received by the Appellant. Similarly, for ''Mash Desi Sabat, the price exhibited for sale was at the rate of Rs. 6.10 paise per kg though in the credit cash memos, the sale was shown at Rs. 6.50 per kg. These credit and cash me mos, were also taken into possession from the said firm. Shakti Singh (P.W.1) also took into possession bill dated 11-7-1985 issued by Ramji Dass Avinash Kumar (Ex.P. 1) establishing the existence of ''Sapan Milk'' tins in the shop of the Appellant for sale. Bill (Ex.P.2) relating to ''Dal Chana'' was also taken into possession. Statement of the Appellant (Ex. PC) was recorded by Shri Shakti Singh (P.W. 1) in the presence of witnesses and after coming to the conclusion that the Appellant had contravened the provisions of Clauses 5(a) and 5(c) of the Himachal Pradesh Commodities Price Marking and Display Order, 1977, First Information Report (Ex. P.D./l) was lodged and afterwards challan was filed in the court.

Accusation u/s 251 of the Code of Criminal Procedure was framed against the Appellant to which he pleaded not guilty and claimed to be tried.

In his examination u/s 313 of the Code of Criminal Procedure, the Appellant admitted that Shakti Singh (P.W.1), Roshan Lal (P.W.2), Chander Mohan (P.W.3) and Ishwar Dass had checked his shop on 2-9-1985. He also admits that he used to deal with the business of the firm but on the aforesaid date, he was hot present at the shop. However, he admits that in the rate list (Ex. PA), rates of ''Sapan Baby Milk'' and of ''Dal Chana'' was not exhibited though they were actually found in the shop and kept for sale. He also admits that seven tins of milk, duly sealed, and 6 quintals and 7 kgs. of ''Dal Chana'' were available for sale at the shop. He further admits that the price of ''Moong Sabat'' was exhibited at Rs. 6.25 paise per kg. and that of ''Mash Desi Sabat'', was Rs. 6.10 paisa per kg. However, he states that instead of Moong Sabat'' the customer was given Dal Mooing Duly'' for which the rate was higher. ''Mash Desi Sabat'' was local and was received a few hours before. The bills which indicated higher prices, as aforesaid, were prepared by a part-time Munim who was no longer in service. Regarding statement (Ex. PC) he states that the same was recorded by the Food Inspector, Roshan Lal (P. W. 2) and he only signed the same on the back. The trial ended in the aforesaid conviction and sentence of the Appellant and, therefore, he prays, by this appeal, to set-aside the conviction and sentence through his counsel Shri D.D. Sood.

Shri Shakti Singh (P.W.1), State that he visited the shop of the Appellant on 2-9-1985 at 12 noon along with Roshan Lal (P.W.2), Inspector Food and Supplies, Bangana, Chandler Mohan and Ishwar Dass. After checking, he found the following defalcations:

Rate list Ex. PA was checked and it was found that the rates of Sapan Baby Milk, Dal Chana were not exhibited in the said list though they were actually found in the shop kept for sale. On counting seven tins of milk aforesaid duly sealed and 6 Qtl 7 kg of Dal Chana was available for sale at the shop.

Rate of Moong Sabat was exhibited as 6.25 per kg. Credit cash memo, were found to have been prepared of the said commodity @ Rs. 7.50 per kg. Similarly, Mash Desk Sabot were exhibited for sale @ Rs. 6.10 per kg. though in credit cash memo, the sale was exhibited at Rs. 6.50 per kg. Credit cash memos, were also taken into possession in relation to the above said fact which belong to the said firm. The same is Ex. PB.

He further states that the said cash memo bearing No. 2023 dated 28-8-198/5. was taken into possession. Further Bill No. 14 dated 11-7-1985, issued by Ramji Dass Avinash Kumar (Ex. P. 2), indicating existence of ''Sapan Milk'' tins into the shop of the Appellant was also taken in addition to Bill (Ex.P.3) dated 13-6-1985 showing purchase of'' Dal Chana'' by the Appellant. He also recorded the statement of the Appellant (Ex. PC), duly signed by him in the presence of the witnesses. He admits that the sealed tins of ''Sapan Milk'' did exhibit the sale price excluding local taxes. He denied the suggestion that the Appellant specifically pointed out that items of ''Dal Moong Sabat'' was wrongly recorded in the cash memo instead of ''Dal Moong Dhuli''. He also denied that the Appellant pointed out that he sold local ''Mash Desi Sabat'' at the aforesaid rate, which were received on that day, at the instance of the vendee. Regarding statement (Ex. PC), he denies that the same was written by him on his own accord and the signatures of the Appellant were got thereon without reading its contents to him and that the Appellant had stated something else and some different version was recorded in Ex. PC.

Shri Roshan Lal (P.W. 2) supports the version of Shri Shakti Singh (P.W. 1) and nothing material has been said by this witness in his cross-examination.

Shri Chander Mohan (P.W. 3) has been declared hostile. Further, he admits his association by Shakti Singh (P.W. 1) and Roshan Lal (P.W. 2) in the inspection of the shop of the Appellant and he also admits having signed the statement (Ex. PC).

The Special Judge has acquitted Kamal Kishore, the other partner of Om Prakash Kamal Kishore, on the ground of his absence at the shop although he admitted himself to be one of the dealers and retailers. In view of his explanation u/s 313 of the Code of Criminal Procedure and other evidence on the record, his acquittal has rightly been ordered by the Special Judge. The result of his acquittal is that it is clearly established by the prosecution by quite convincing evidence that the Appellant was one of the partners of the shop, available in the shop at the time of checking and it was he who was in- charge of the business of the firm and responsible for the same. The Appellant has further, as already observed, admitted all material aspects on this account, but the only question is whether his explanation regarding defalcations, specifically pointed out above, can be considered to be reasonable and convincing. In my opinion, the explanation is thoroughly unreasonable, unconvincing and an afterthought. The prosecution has succeeded to establish the violation of Clause 5(a) and 5(c) of the Himachal Pradesh Commodities Price Marking and Display Order, 1977 against the Appellant and the conclusions arrived at by the Special Judge on this aspect are also correct and I proceed to confirm the same.

Shri D.D. Sood, learned Counsel for the Appellant, has very seriously contended that in any case the matter falls u/s 7(1)(a)(ii) and not u/s 7(a)(ii) and, therefore, lenient view of the matter be taken and the Appellant let off looking to the fact that an application was already moved by the Public Prosecutor for the withdrawal of the case, which is of technical nature. I am not convinced by this submission of Shri D.D. Sood. Perusal of these provisions clearly indicate that the present offence falls u/s 7(1)(a)(b) and punishable as such. So far as the application u/s 321 of the Code of Criminal Procedure is concerned, although it is too late to set up such a plea at this stage after the Appellant having once failed to assail the same at that appropriate stage when order on it was passed, however, perusal of the same shows that the Special Judge has given quite convincing and cogent reasons for the dismissal thereof. I have no reasons to take a view different than the one already taken by the Special Judge.

The result is, this submission of Shri D.D. Sood has no merit and is, therefore, rejected.

Shri D.D. Sood has made last attempt to argue that his client should be given the benefit under the benevolent provisions of the Probation of Offenders Act as the Appellant is the first offender. Looking to the purpose of the Act and the nature of the offence committed by the Appellant, I am of the opinion that such a benefit cannot be extended to the Appellant.

In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed. The Appellant is stated to be on bail. He will surrender his bail bonds to serve out the sentence imposed upon him.