Prem Dhawan vs State of Himachal Pradesh

Bhawani Singh, J.—The present appeal arises out of the conviction of the Appellant for offence u/s 3 read with Section 7 of the Essential Commodities Act, 1955, by the judge, special court for kangra mandi, kullu, una and hamirpur divisions in e.c. case no. 4-iii of 1986 decided on 6-4-1987 thereby sentencing the Appellant for a period of three months (simple imprisonment) and a fine of Rs. 100/- and in default of payment of fine to further undergo simple imprisonment for ten days.

The Appellant assails this judgment by way of this appeal.

The facts, in brief, are that the Appellant is running a vegetable shop in sarvari bazar, kullu, on 14-2-1986, Gajan Singh (p. W. -3), inspector food and supplies, kullu, visited the shop of the Appellant after questioning Shri Jaswant Singh (p.w.-l) and Murari Lal Gupta (p. W.-2) as to the price they paid for the purchase of vegetables from the shop of the Appellant. These witnesses revealed that they purchased kg. Of peas and kg. Of tomatoes for Rs. 4/- from the Appellant. Gajan Singh (p. W. -3) checked the rate list (ex. P-b) of the Appellant and found that the prices of these articles were shown at the rate of Rs. 3.50 per kg. Each. It was found to be a case where the Appellant had charged more than the rate displayed on the rate list, so, Gajan Singh (p. W. -3) seized 4 kg. Of peas and 4 kg. Tomatoes from the shop of the Appellant in the presence of sh. Jaswant Singh (p. W.-l) and Murari Lal Gupta (p.w.-2) after associating Siri Pal, another co-vegetable-seller in the same area, vide recovery memo (ex. P-a) signed by Gajan Singh (p. W. -3) besides the other witnesses.

A case was registered on the basis of the '' report (ex. P-d) by the police, police station, kullu, against the Appellant for having committed the aforesaid offences. After completion of investigation, a challan against the Appellant was filed. Substance of accusations for the violation of rule 5(a) of the display order was put to the Appellant to whom he pleaded not guilty and claimed to be tried. The prosecution produced a number of witnesses to support its case against the Appellant.

The version of the Appellant, as it appears from his explanation u/s 313 Code of Criminal Procedure and the trend of cross-examination is that although sh. Jaswant Singh (p.w.-l) had demanded kg. Each of above said articles but he had no change with him and this fact having been disclosed to Shri Jaswant Singh, more vegetables to the extent of 150 gms of peas and tomatoes were added in the same very paper bag. It is also stated that as per the rate list (ex. P-b), he was to charge extra for dhania, mirch and the bag. Further the Appellant states that the purchaser was asked only about the total amount paid by him but not about the total quantity actually delivered to him by the Appellant. The trial ended in the aforesaid conviction of the Appellant.

Sh. Jaswant Singh (p.w.-l) states that the accused told him the price of these articles at the rate of Rs. 4/- per kg., therefore, he purchased i kg. Of peas and j kg, of tomatoes and he paid Rs. 4/- for both the articles. He verified the price of these vegetables from the rate list exhibited in the premises at the rate of Rs. 3.50 per kg. After the same was checked by Gajan Singh (p.w.-3). The remaining tomatoes (4 kg.) And peas (4kg). In stock in the shop of the Appellant were seized vide recovery memo (ex. P-a) in the presence of the witness and he also appended his signatures on the same and the seized articles were handed over to Siri Pal, a vegetable seller, on sapurd-dari. In his cross-examination, this witness states that both the articles were put in one paper bag and were handed over to him. He further states that no charges were paid by him for the paper bag. The inspector food and supplies did not inspect the vegetables purchased by him by opening the paper bag but he did not take it into possession nor did he weigh the weight thereof. He further states that green chilies and dhania were not put along with the above said vegetables by the Appellant in the bag.

Sh. Murari Lal gupta (p.w. 2) supports Jaswant Singh (p. W. 1). He denies the suggestion that the Appellant'' charged Rs. 4/- for the sale of peas, tomatoes, green chilies and green dhania besides charges for the paper bag. -this witness is working in the same office in which as want Singh (p.w.-l) is working therefore, much reliance cannot be placed on what he has narrated.

Sh. Gajan Singh (p.w.-3) is the inspector, food and supplies, who have initiated this case against the Appellant. He states that he was told by jas want Singh (p.w.-l) that the price charged by the accused for the sale of these two vegetables was Rs. 4/- he checked the rate list and found that the price mentioned therein was Rs. 3.50 per kg Qua each article. So, the accused had charged in excess of the prescribed rates exhibited on ex. P-b. He further states that he took into possession 4kg. Of peas and 4kg. Of tomatoes from the shop of the Appellant in the presence of the witnesses and thereafter handed over the same on sapurd-dari to Siri Pal and got a case registered against the Appellant. He states that he did not take in to possession the vegetables along with its paper bag from jas want Singh (p. W.l) nor did he get the vegetables weighed separately there from. He saw these vegetables lying inside the paper bag which was open from its upper portion and both these articles were visible to the nalced eye though that paper bag remained in the hand of jas want Singh (p.w. 1). Jas want Singh (p.w.-l) in his statement states that the vegetables were seen by Gajjan Singh (p. W.:3) by opening the paper bag thereof. It indicates that the paper bag was not actually seen by this witness and, therefore, it cannot be said as to how many articles were in the paper bag in question. Further it is clear that the'' vegetables, qua which the offence had been committed and the matter was initiated, were not taken into possession. Further these articles were not weighed in order to see the actual weight thereof and it was the duty of Gajan Singh (p.w. 3) to have not only seized these articles along with the paper bag but also weighed the same in order to prove that the articles purchased were not more than kg. Each and the same did not contain dhania and mirch, in view of the specific mention in ex. Pb that the Appellant was to charge separately for dhania, mirch, and paper bag. Even if it is admitted that the bag did not contain dhania and mirch. It cannot be said that the Appellant gave the bag to the purchaser free of cost despite specific declaration in the rate list for charging separately for the same. It can also be said that the accused may have charged 0.50 paise towards the price of the bag. The charges may appear to be high but that cannot be made the basis of an offence against the Appellant.

Further Ravinder Kumar (d.w. 1) states that the Appellant was asking Gajan Singh (p.w.-3) to weigh the articles but the latter refused to do so on the ground that one challan has to be shown to the department under instructions.

From the aforesaid examination of the matter, it is difficult to say that the conclusion arrived at by the learned special judge about the commission of the offence by the Appellant is sustainable rather the trail court has not correctly appreciated the evidence on record and the explanation and the defence of the Appellant which is as important as the version of the prosecution. The explanation of the Appellant appears to be plausible, and the lack of cogent and convincing evidence to prove the offence against the Appellant by the prosecution is so intense that the Appellant cannot be held liable for the commission of the offence in question. It would have been better in case the articles sold to the purchaser by the Appellant had been seized, retained and seen by the court to assess the respective pleas of the parties. The inspector who started the prosecution of the Appellant should have weighed the quantity of these two vegetables in the presence of witnesses to eliminate any chance of the same being more than 1kg. Each as asserted by the Appellant.

The result is, there is force in this appeal and the same is allowed. The conviction of the Appellant is set aside and she is acquitted of the charge. The surety bonds and bail bond of any, executed by the Appellant at any stage of the case are hereby cancelled.