Pazhanisamy vs State

R. Mala, J.—This appeal has been preferred by the appellant challenging the judgment of conviction and sentence passed against him on 08.03.2005 in STC.No. 7 of 2001 on the file of learned Additional District Sessions Judge-cum-Special Judge for E.C. Act cases, Coimbatore. The appellant who was arrayed as A4, along with 4 other accused persons was convicted under Section 4(1) of the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order 1984 r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentenced to undergo three months Simple Imprisonment and a fine of Rs.10,000/- in default, to undergo Simple Imprisonment for a period of two weeks. Set off was also ordered under Section 428 Cr.P.C.

The case of the prosecution based on the prosecution witnesses is as follows:

(a) On 20.06.1997, at 8.00 A.M, when P.W.2/Syed Basheer Ahmed, Civil Supplies Flying Squad Special Tahsildar was conducting vehicle checks near Sugunapurammedu, he intercepted a lorry bearing registration number K.R.R.216 and found that 155 bags of PDS rice were being transported from Tamilnadu to Kerala without any valid documents. Hence, P.W.2/Syed Basheer Ahmed seized the consignment along the lorry under Ex.P.11/Form II. He also sent Ex.P.6/Report to the District Collector along with Ex.P.7/Statement of A1 who was the driver of lorry, Ex.P.8/Statement of A2 who was the cleaner of lorry and Ex.P.9/Mahazar. Thereafter, P.W.2 handed over the seized materials in the Civil Supplies Corporation godown at Poosaripalayam. P.W.2 also informed the same to the District supply Officer through Ex.P.13/letter.

(b) When P.W.1/Rajendran, Civil Supplies Special Tahsildar verified the seals endorsed in the Ex.P.1 series/Bills, he suspected it to be fake and hence, P.W.1 along with a Revenue Inspector went to Thimbam Check Post and verified the movement register. On verification, it was found that the seals endorsed in the bills were fake. Hence, P.W.1 recorded Ex.P.3/Statement of P.W.4/Varadharajan, who was working as Special Revenue Inspector and Ex.P.4/Statement of one Rajendran, who was working as Office Assistant at Thimbam Check Post. He also recorded Ex.P.2/Sample endorsement of the seals used in the Check Post and submitted the same to the District Supply Officer along with Ex.P.5/Report, dated 15.08.1997.

(c) On receipt of the copy of Ex.P.6/report submitted by P.W.2/Syed Basheer Ahmed, Civil Supplies Flying Squad Special Tahsildar to the District Collector, in order to initiate action to confiscate the seized material as contemplated under Section 6-A of the Essential Commodities Act, issued notice under Section 6-B of the Act and confiscated the consignment under Ex.P.10/Proceedings of the District Collector.

(d) Based on the Ex.P.2/Complaint received on 12.09.1987 along with the Ex.P.14/Executive Order of the District Collector, P.W.5/Rathinasabapathy, Civil Supplies CID Inspector registered the Ex.P.12/FIR and recorded the statements of P.W.1/Rajendran and P.W.2/Syed Basheer Ahmed. Thereafter, since P.W.5/Rathinasabapathy was transferred, he handed over the case to his successor P.W.6/Kandasamy, who completed the investigation and filed the chargesheet.

The learned Trial Judge placed incriminating evidence against the accused under Section 313(1)(b) Cr.P.C. The accused denied the same in toto. On the side of the prosecution P.W.1 to P.W.6 were examined and Ex.P.1 to Ex.P.14 were marked. On the side of the defence, D.W.1 and D.W.2 were examined. However, after considering the oral and documentary evidence, the learned Trial Judge has convicted the appellant/accused as stated above.

Challenging the order of conviction and sentence passed by the Trial Court, the appellant/accused has preferred the present appeal.

The learned counsel appearing for the appellant would submit that the Trial Court has failed to consider the fact that the name of the appellant A4/Pazhanisamy did not find place in the FIR. He is neither the owner of the lorry nor the owner of the rice. Only on the basis of the statements of A1/Syed Kasim and A2/Mohammed Yusuf viz., Ex.P.7 and Ex.P.8, the appellant was implicated in the case. However, even in the statements of A1 and A2, it was stated that only A5/Krishnan is the owner of the rice and they had not mentioned anything about the appellant A4/Pazhanisamy. Further, the appellant has not received any notice in the confiscation proceedings. Furthermore, the Trial Court has failed to consider the fact that the rice seized by the P.W.2/Syed Basheer Ahmed, Civil Supplies Flying Squad Special Tahsildar on 20.06.1997 at 8.00 A.M has not been tested and proved to be PDS rice, which is the main ingredient to prove the commission of the offence. Thus, the learned counsel for the appellant would submit that the guilt of the accused has not been proved beyond all reasonable doubt and hence, he prayed for setting aside the order of conviction and sentence.

Resisting the same, the learned Government Advocate appearing for the respondent would submit that A1 is the driver, A2 is the cleaner, A3 is the owner of the vehicle, A4/appellant and A5 are the owners of the rice. On 20.06.1997 at 8.00 A.M when P.W.2/Civil Supplies Flying Squad Special Tahsildar was conducting vehicle checks near Sugunapurammedu, he intercepted a lorry bearing registration number K.R.R.216 and found that 155 bags of PDS rice were being transported from Tamilnadu to Kerala without any valid documents. When P.W.1/Civil Supplies Special Tahsildar verified the seals endorsed in the Ex.P.1 series/Bills, it was found to be a bogus one. Hence, the District Collector passed the Ex.P.10/confiscation order, after following the procedures laid down in the law. The appellant A4 was found to be the owner of the vehicle and hence, the Court below has rightly considered the said fact and convicted the appellant. Thus, the learned Government Advocate prayed for the dismissal of the appeal.

Considered the rival submissions made by both sides and perused the types set of papers.

The point to be decided is whether the conviction is sustainable?

According to the learned counsel for the appellant, the name of the appellant did not find place in the Ex.P.12/FIR. It is pertinent to note that Ex.P.12/FIR came into existence only after recording the statements of A1 and A2. It is also true that A1 and A2 were arrested when they were transporting 155 bags of PDS rice from Tamilnadu to Kerala without any valid documents. It is also true that the statements of A1 and A2 were recorded as Ex.P.7 and Ex.P.8 and even in those statements, the name of the appellant, A4/Pazhanisamy has not been mentioned. The case of the appellant is that he is neither the owner of the lorry nor the owner of the rice.

At this juncture, it would be appropriate to consider the provisions of law, in which the appellant is prosecuted.

Section 4 of the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order 1984 reads as follows:

"4. Licensing of dealers:- (1) Subject to the provisions of clause 3, no dealer shall start afresh or carry on business as a dealer in any essential trade article mentioned in Schedule I to this Order except under and in accordance with the terms and conditions of a license issued in this behalf by the licensing authority. No person shall start or continue to do business before the issue or renewal of licence by the licensing authority:

Provided that the Government of the authorised officer shall not impose any restrictions formal or informal on Inter- State movement of edible oil seed and/or edible oil.

(2) It shall be open to the licensing authority to specify from time to time, the place or area within which only the dealer can purchase, store, move or sell any essential trade article and the quantity upto which he may purchase, store, move or sell at a time or during a specified period.

(3) In laying down the terms and conditions the licensing authority shall have regard to the following matters, namely:-

(a) the are in which the dealer has operated in the past;

(b) the quantities in which he has been dealing in such areas in the past:

(c) the availability of stocks in the area and the requirements of the public;

(d) any pattern of regulation of distribution that may be enforced from time to time; and

(e) the number of dealers operating in the area:

Provided that the licensing authority may vary the conditions, from time to time, with reference to the above factors and also the arrangements that may be made for supply in the area of Government stocks.

(4) Every dealer shall declare to the licensing authority all the stocks of essential trade articles in his possession or control every quarter in Form E.

(5) Every licensed dealer or producer who holds in excess of the stock limits of pulses, or edible oil seeds or edible oils specified for a retailer in clause 4 of the Pulses, Edible Oil seeds and Edible Oils (Storage Control) Order, 1977, shall furnish a fortnightly return to the licensing authority in Form G in respect of such stocks of pulses, edible oil seeds and edible oils held by them."

Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 reads as follows:

"7. Penalties:- (1) If any person contravenes any order made under Section 3:

(a) he shall be punishable,-

(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) ...

Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;"

It is the case of the prosecution that the accused persons were transporting 155 bags of PDS rice from Tamilnadu to Kerala without any valid documents. However, it is also the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. As rightly pointed out by the learned counsel for the appellant, in Ex.P.6/Report addressed by P.W.2 to the District Collector, it was stated as 155 bags of PDS rice whereas in Ex.P.9/Seizure Mahazar, it was stated as 148 bags of PDS rice. Admittedly, the basic mandatory provision is to verify whether the confiscated rice is a PDS rice or not. As per the evidence of P.W.2/Civil Supplies Flying Squad Special Tahsildar, he has taken sample of the seized material, however it was not sent for chemical analysis and no report has been obtained from the laboratory to prove that the seized material is PDS rice. So, once the charge is specific that the accused persons were transporting PDS rice, it is duty of the prosecution to prove the same. However, the prosecution has miserably failed to examine the witness and mark any documents to show that the rice seized is PDS rice.

It is also pertinent to note that the name of the appellant/A4 did not find place in the statement given by A1 and A2 and in the FIR/Ex.P.12. A4 is charged with the offence on the ground that he is the owner of the seized material. But, P.W.5/Rathinasabapathy. Former Inspector in Civil Supplies CID has deposed that during the confiscation proceedings, the appellant A4 has filed documents to show that he purchased the rice only from Nanjankodu Sri Samundeswari Agency. P.W.5 has further deposed that he do not know whether the summon for confiscation proceeding is sent to the appellant/A4 or not. So, there is no evidence either to prove that the appellant is the owner of the vehicle or the owner of the PDS rice. That factum has not been considered by the Trial Court.

Thus, as discussed supra, since A1 and A2 were intercepted, the seizure of material object was made and the statements of A1 and A2 were recorded. However, the name of the appellant/A4 did not find place either in the statement given by A1 and A2 or in the Ex.P.12/FIR. Further, there is no evidence to show that the rice seized is PDS rice and that notice has been issued to A4 in the confiscation proceedings.

Hence, I am of the view that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. So, the conviction and sentence passed by the Trial Court is unsustainable and the same is hereby set aside.

In fine,

(a) The Criminal Appeal is allowed.

(b) The judgment of conviction and sentence passed against the appellant/accused on 08.03.2005 in STC.No. 7 of 2001 on the file of learned Additional District Sessions Judge-cum-Special Judge for E.C. Act cases, Coimbatore is hereby set aside.

(c) The fine amount paid is ordered to be refunded.

(d) The Bail bond, if any executed by the appellant, shall stand canceled.