Patel Govindbhai Ramdas vs State of Gujarat

Rajesh H. Shukla, J.—The present appeal is directed against the judgment and order passed in Essential Commodities Case No. 17/93 (Criminal Case No. 22/93) by the learned Special Judge, Sabarkantha at Himatnagar dated 10.3.1998 recording the conviction of the appellant-accused for the offence u/s 3(2)(d) as well as Section 7(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as ''the Act'') and imposing sentence of S.I. for 3 months and fine of Rs. 1,000/-, in default S.I. for one month and confiscating 220 litres of kerosene. The accused was however acquitted of the charge u/s 420 of IPC.

The facts of the case briefly summarised are that on 15.6.1993 officers of the Civil Supplies Department visited the premises (hotel) of the accused and found from the backyard of the premises a barrel consisting of 220 litres of kerosene. On verification of the record, the kerosene was found unauthorised, without any bills and also in violation of Government Notification dated 6.11.1980 which provided that possession ofstock in excess of 18.5 litres is prohibited. Further, it was verified that this stock of kerosene was utilized for commercial purpose of running the hotel and thereby has caused prejudice to the public distribution system of essential commodities and thereby committed offences u/s 3 as well as Section 7 of the Act. Further, by such violation, the accused has also committed an offence u/s 420 of IPC. On the basis of this, a complaint was registered at Exh. 1. The Collector, vide order dated 10.8.1993, granted the sanction for prosecution.

On the basis of the complaint, a case was registered being Summary Case No. 22/93. Since it is a summary case, plea was recorded at Exh. 9. The accused denied to have committed any such offence and therefore the court proceeded with the trial.

In order to bring home the charges levelled against the accused, the prosecution examined the witnesses and also produced documentary evidence.

After recording the evidence of the prosecution witnesses was over, the learned Special Judge, Sabarkantha at Himatnagar recorded the further statement of the accused u/s 313 of Cr.P.C., wherein the accused denied to have committed the offence.

After hearing the learned Public Prosecutor as well as the learned advocate for the accused, the Special Judge, Sabarkantha at Himatnagar recorded the conviction of the accused for the alleged offence u/s 3(2)(d) as well as Section 7(a)(ii) of the Act and imposed sentence as stated above.

It is this judgment and order which has been assailed by the appellant-accused, inter alia, on the ground that the conviction of the accused for the alleged offence was recorded erroneously and the learned Judge has failed to appreciate the material and evidence on record. It is also contended that the learned Judge has failed to take into consideration the evidence produced on record. It is also contended that the admission statement made before the officer in exercise of powers under the Act cannot be made admissible under the Evidence Act and therefore it could not have been the basis for conviction. It is contended that the prosecution has not proved beyond reasonable doubt that kerosene was recovered as alleged.

Learned advocate Mr. Hardik Kalmekh for the appellant accused submitted that whether the commodity seized and recovered was kerosene or not has not been established as there is no laboratory report. He further emphasized that after the goods were seized, it was necessary for the prosecution to establish that it was kerosene by referring to the laboratory. He submitted that as it has not been done, the prosecution cannot be said to have established that it was kerosene which would attract the alleged offences. He therefore submitted that the conviction requires to be set aside.

Learned advocate Mr. Kalmekh referred to the testimony of Kanubhai Joitabhai Patel, PW-8 at Exh. 22 and submitted that the panch witness has not supported the prosecution case. Similarly, he referred to the testimony of PW-2 and submitted that he also has not supported the prosecution case. He also referred to the testimony of Pravinkumar Gameti, PW-4, Supply Inspector in the office of District Supply Officer and submitted that it has been stated that from the backyard of the hotel 220 litres of kerosene were seized. However, he submitted that whether it was kerosene or not is not established. Similarly, panch witnesses have not corroborated or supported the prosecution. He further submitted that the seizure order is produced and the goods have been confiscated. However, he submitted that in the cross-examination he has also admitted that whether it was 220 litres or not is not mentioned specifically in the panchnama. Similarly, it was outside the hotel premises, in the backyard. He submitted that he has stated that the confessional statement of the accused was recorded at Exh. 28 and he has denied the suggestion that it was recorded under pressure. The fact remains that such statement could not be made admissible in evidence as it was recorded by an officer in exercise of powers under the Act. He therefore submitted that the conviction could not be passed as such a statement is not corroborated by independent witnesses. He referred to the statement at Exh. 28 and submitted that in the statement also it has been specifically stated by the accused that he was not aware about the government notification for preserving excess quantity and it could not be kept or stored.

Alternatively, learned advocate Mr. Kalmekh submitted that the court may consider that the quantity is small and the conviction is recorded only on the basis of such statement at Exh. 28. He submitted that there is no other offence and therefore the benefit as required under the Probation of Offenders Act may be extended.

Learned APP Mr. Jani submitted that though the contention is made that it is not proved by laboratory report and it has not been established that the goods seized was kerosene, it is a matter of knowledge that when it would be recovered, it would smell from which one can make out that it is kerosene. He further submitted that seizure memo was issued when the goods were seized which referred to the article as kerosene, and no objection has been raised by the accused. He therefore submitted that such contention has been raised only at a belated stage.

Learned APP Mr. Jani also referred to the testimony of PW-4, Supply Inspector, who had visited the premises and seized the goods. He submitted that he has in his testimony stated that 220 litres of kerosene was kept without licence or authority and therefore it was seized by making a panchnama and seizure memo was also given. He submitted that the statement was recorded which is at Exh. 28 in which he has admitted about having kept excess quantity without any authority or licence. Learned APP Mr. Jani submitted that the testimony of this witness is corroborated by documentary evidence like the seizure memo, panchnama and as it is reflected in the seizure memo, the quantity of kerosene was recovered from the backyard which was kept without any permission or authority. This evidence has been further corroborated by the testimony of PW-5, Supply Inspector, at Exh. 31. He has also corroborated the evidence of PW-4. He has stated that kerosene was seized for which seizure memo was made and copy thereof was served to the accused. The statement of the accused at Exh. 28 was recorded in exercise of powers under the Act where he has admitted about having kept such kerosene without any permission. In support of this submission he has referred to and relied upon the judgment of this Court in the case of Kanbi Patel Prataprai Bhagwanji Vs. State of Gujarat and Another, and submitted that in a similar case the statement recorded by the Inspector in exercise of his powers under the Act was made admissible in evidence. It has been observed that it cannot be said that the statement before such an officer is not admissible in evidence for the purpose of Section 25 of the Evidence Act. He further submitted that such statement or confessional statement can be accepted even without corroboration. He referred to the provisions of the Act and submitted that thereby the offence has been committed for which, after necessary sanction, the aforesaid case has been registered. Therefore, it was submitted that the impugned judgment and order is just and proper.

In view of rival submissions, it is required to be considered whether the impugned and judgment and order could be sustained or not.

As discussed hereinabove, the testimony of witnesses, particularly PW-4 and PW-5 together with the confessional statement at Exh. 28 would clearly reveal that at the time of verification excess stock of kerosene was found without any permission or authority. The panchnama was prepared and the seizure order is also made for seizure and confiscation of such stock. Thus, when such kerosene has been recovered from the backyard of the premises, the submission made by learned advocate Mr Kalmekh for the accused that whether it was kerosene or not is not established, is misconceived. As rightly submitted, at the time of verification and seizure of the goods, seizure memo has been made, which has been served upon the accused, and no objection has been raised that it is not kerosene. Further, merely because the panch witnesses have not supported the prosecution case, by itself, would not be sufficient and the other evidence cannot be brushed aside.

Moreover, the submission made by learned advocate Mr. Kalmekh that the statement at Exh. 28 cannot be considered and it would not admissible in evidence is required to be appreciated. Though such a contention has been raised that it is not admissible, it cannot be accepted in view of the judgment of this Court in the case of Kanbi Patel Prataprai Bhagwanji (supra) wherein this Court, referring to the similar circumstances, has specifically observed that the statement recorded by the Supply Inspector in exercise of powers under the Act cannot be said to be a "police officer" for the purpose of Section 25 of the Evidence Act. Therefore, such a statement would be admissible in evidence and there is no bar under Article 20(3) of the Constitution of India. It has also been observed in this judgment that though the confessional statement, ordinarily, should not form the basis of conviction, still, it can be accepted without corroboration in a given case. Further, it cannot be said that there is no corroboration inasmuch as the confessional statement at Exh. 28 and the seizure memo clearly establish the possession and recovery of kerosene from the premises/hotel of the accused which would be corroborated by the testimony of PW-4 and PW-5.

Thus, the statement at Exh. 28 is corroborated by the panchnama and the seizure memo regarding seizure of the stock/kerosene at the time of verification. This aspect has been further corroborated by the testimony of PW-4 and PW-5.

Therefore, once it has been found that the accused was having stock of kerosene without any permission, it would attract the offence as alleged. It is required to be appreciated that it is not just the quantity or value of the goods or essential commodity alone which is required to be considered. The object of the Act and the 1981 Order is with regard to fair distribution of essential commodities to the common people. If such irregularity is found resulting in non-supply of essential commodities to the people/consumer reflecting the manoeuvre and manipulation for wrongful gain resulting in hardship to the people, it would frustrate the very object and purpose of such an Act. Therefore, such a step taken for smooth distribution system under the Act would be affected. Therefore, the impugned judgment and order deserves to be confirmed and does not call for any interference.

However, considering the lapse of time and other circumstances as stated by learned advocate Mr. Kalmekh, the ends of justice would meet if the benefit under the Probation of Offenders Act is granted to the accused. Section 4 of the Probation of Offenders Act provide for giving such benefit to the accused who have not been indulging in heinous crime and the sentence is less. At the same time, the fine has to be enhanced suitably for such manoeuvring and manipulation of the essential commodities. Therefore, the fine is required to be enhanced to Rs. 5,000/-.

Accordingly, the present appeal deserves to be rejected and is hereby rejected. Notice is discharged. The impugned judgment and order passed in Essential Commodities Case No. 17/93 (Criminal Case No. 22/93) by the learned Special Judge, Sabarkantha at Himatnagar dated 10.3.1998 recording the conviction of the accused is hereby maintained and confirmed. However, while maintaining conviction of the accused as recorded hereinabove, the benefit under the Probation of Offenders Act deserves to be granted.

Therefore, the substantive sentence shall remain under suspension for a period of two years. The appellant-accused is directed to execute a bond of good behaviour of Rs. 10,000/- (Rupees Ten thousand only) for two years with a surety before the trial court within a period of one month from the date of receipt of the writ, failing which the trial court shall issue bailable warrant for arrest of the appellant-accused so that he may have to serve the sentence imposed upon him. It is also ordered that in case of breach of condition of the bond of good behaviour, the trial court shall be at liberty to issue non-bailable warrant for arrest of the appellant-accused.

Further, the order of sentence imposing fine of Rs. 1,000/- is enhanced to payment of Rs. 5,000/- (Rupees Five thousand only) which shall be deposited on or before the execution of the bond of good behaviour before the trial court.

Bail bond executed by the appellant-accused shall stand discharged on the day on which the appellant-accused executes the bond of good behaviour before the trial court.