Ram Kishan Mehra, A.F.S.O. vs State of Haryana

M.L. Singhal, J.

These are criminal revisions No. 319 and 416 of 1996 whereby petitioners herein have challenged the order Annexure P1 and charge Annexure P2 framed by Special Judge, Bhiwani (exercising powers under the Essential Commodities Act, 1955). The facts of the prosecution case are as follows :

On 9.2.1993 Shri R.K. Sharma, Inspector/SHO Police Station City, Bhiwani along with SI Piare Lal, H.C. Baljit Singh and three constables was on patrol duty. They were going on government jeep No. HR16352 being driven by constable Karan Singh. When they reached on the bridge in front of grain market they spotted a threewheeler coming from the Loharu Side. Rajinder accused was driving this threewheeler. Prem Parkash accused was sitting in the three wheeler. There were three drums containing kerosene in the threewheeler. Rajinder Singh and Prem Parkash could not produce any licence or permit for keeping in their possession three drums containing kerosene. Each drum contained 200 litres of kerosene. A bottle full of kerosene was taken as sample out of each drum. Sample bottles were sealed with seal bearing impression `RK''. Each drum containing kerosene was sealed with seal `RK''. Samples and the drums were taken into possession vide memo PC. Seal after use was given to SI Piare Lal. Sample bottles are P1 to P3. Three wheeler was taken into possession vide memo Ex.PE. Rough site plan Ex.PF was prepared so far as the place of apprehension of the accused with kerosene is concerned. Samples were sent for analysis to the Forensic Science Laboratory. On receipt of the report of the Forensic Science Laboratory Ex.PG and the completion of the investigation, Rajinder and Prem Parkash were challaned under Section 7 of the Essential Commodities Act. Rajinder and Prem Parkash were charged under Section 7 of the Essential Commodities Act read with provisions of Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977. They pleaded not guilty to the charge and claimed trial.

Prosecution evidence was recorded. Statements of Rajinder and Prem Parkash were recorded under Section 313 of the Code of Criminal Procedure. They did not lead any evidence in defence. Resultantly, case was posted for arguments. During the course of arguments, Special Judge, Bhiwani felt that Ved Pal Singh depot holder had actually obtained 1760 litres of Kerosene from the wholesale depot of Gupta Agency on 6.2.1993 and Ved Pal Singh depot holder was the source of the illegal possession of kerosene by Rajinder and Prem Parkash. He also felt that Investigating Officer had not investigated the case fairly with a view to vindicate the law; he rather investigated the case with a view that no insinuation surfaced against Ved Pal Singh depot holder. He felt that record showed that sufficient time had been given to Ved Pal Singh and the Civil Supplies Authorities for preparing the record in the defence of Ved Pal Singh, depot holder. He felt that Manak Chand Jain, Inspector, Food and Supplies and R.K. Mehra, Assistant Food and Supplies Officer had connived with Ved Pal Singh so that kerosene sold by him in black which did not reach the poor consumers was not detected. He accordingly issued show cause notices to them vide order dated 25.5.1995 calling upon them to show cause why they should not be arraigned as accused with Rajinder and Prem Parkash for violation of the provisions of the Essential Commodities Act. They appeared in response to show cause notices and they put in separate replies thereto. After considering their replies to the show cause notices, Special Judge, Bhiwani felt that there was effort on the part of Sarvshri R.K. Mehra and Manak Chand Jain to save depot holder from punishment and sufficient time was given to him for forging the record. As regards Ved Pal Singh, he felt that there is his confession in the handwriting of police official that he had sold kerosene to Rajinder Singh and Prem Parkash at the rate of Rs. 900/ per drum. He ordered Ved Pal Singh, Manak Chand Jain and R.K. Mehra to be arraigned as accused with Rajinder and Prem Parkash vide order dated 30.3.1996. Vide order Annexure P2, he charged them for offence punishable under Section 218 of the Indian Penal Code read with Section 7 of the Essential Commodities Act.

Aggrieved R.K. Mehra and Manak Chand Jain have come up in separate revisions to this Court.

In support of the charge framed against Rajinder and Prem Parkash, Piare Lal PW.1, Risal Singh PW.2, R.K. Sharma, Inspector/SHO Police Station City, Bhiwani PW.3 and Rajinder Kumar PW.4 appeared before Special Judge, Bhiwani. All that they have stated is about the recovery of three drums containing kerosene from the possession of Rajinder and Prem Parkash in a threewheeler. They have not even remotely stated that they had purchased this kerosene from Ved Pal Singh and Ved Pal Singh had sold this kerosene to them in black and by sale of kerosene in black, he had deprived the ration card holders from their right to purchase kerosene at cheap rate. Sh. R.K. Sharma who investigated this case has stated that he recorded the statement of Ved Pal Singh, according to which he had sold kerosene to the accused at the rate of Rs. 900/ per drum. He did not interrogate Ved Pal Singh. Rajinder Kumar PW.4 stated that he was salesman of Gupta Agency owned by Sanjay Kumar, wholesale dealer of kerosene. On 6.2.1993, he issued 1,760 litres of kerosene to Ved Pal Singh, depot holder on permit. Ved Pal Singh depot holder lifted this kerosene on 6.2.1993 and took it away to his depot. There is nothing tangible appearing in the statements of these witnesses against Ved Pal Singh, depot holder, Manak Chand Jain, Inspector, Food and Supplies and R.K. Mehra, Assistant Food and Supplies Officer. Special Judge, Bhiwani, in his order Annexure P7 dated 25.5.1995 observed that Ved Pal Singh, depot holder had sold kerosene which was being transported at about 10.00 in the night through Rajinder and Prem Parkash. Ved Pal Singh was not arraigned by the Investigating Officer as an accused and investigation was not directed against him. He summoned police file lying with the Public Prosecutor with a view to know about the line of the investigation and the truth or innocence of Ved Pal Singh, depot holder. Investigating Officer stated that record of Ved Pal Singh, depot holder was found in order but he did not interrogate Ved Pal Singh, depot holder. He went to raid the premises of Ved Pal Singh but those were found locked. Special Judge, Bhiwani entertained doubt about the correctness of the version of the prosecution and correctness of the investigation by the Investigating Officer from this version made by the Investigation Officer which to his mind was contradictory. After perusal of the police file, Special Judge, Bhiwani felt that Investigating Officer had acted more as counsel for Ved Pal Singh, depot holder than as an independent Investigating Officer, investigating the case impartially and independently. Case diary showed that on 12.3.1993 Ved Pal Singh was joined in the investigation. Assistant Food and Supplies Officer, Bhiwani vide letter No. A.F.S.O/104 dated 15.2.1993 issued show cause notice to Ved Pal Singh, depot holder to produce record of distribution of sugar, rice, wheat and kerosene from his depot in the month of February, 1993. According to Manak Chand Jain, Inspector, Food and Supplies, he had verified the issuance of kerosene to 168 card holders in the month of February, 1993 and had recorded statements of ration card holders and found that everybody had received kerosene from Ved Pal Singh, depot holder. Learned Special Judge, Bhiwani made fishing enquiry to fasten liability upon Ved Pal Singh, Manak Chand Jain and R.K. Mehra, accused. It was not desirable on the part of Special Judge, Bhiwani to have summoned the police file and go through the case diary with a view to fasten liability upon Manak Chand Jain, R.K. Mehra and Ved Pal Singhaccused. R.K. Mehra, Assistant Food and Supplies Officer had in reply to show cause notice stated that he does not figure as an accused either in the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure or the documents appended thereto. He had simply marked the letter of DFSC, Bhiwani to Inspector, Food and Supplies Officer for necessary action and report in discharge of his official duties and on receipt of the report of Inspector, Food and Supplies Officer, he forwarded the same to the District Food and Supplies Controller. He was never joined during investigation or enquiry at any stage by the local police or the departmental authorities. He had no knowledge of sale of kerosene by Ved Pal Singh to anybody during the month of February, 1993. He is his reply to the show cause notice had submitted that he held a door to door enquiry from various ration card holders to find out if they had actually drawn kerosene on their cards. He correctly recorded what was stated by them and sent his report. Enquiry was held to ascertain whether depot holder had issued kerosene to the card holders and it was not being held to protect or defend the depot holder. Special Judge, Bhiwani appears to have exceeded the jurisdiction vesting in him. He could not have sought the police file and perused the case diary and hold fishy enquiry to fasten liability upon Manak Chand Jain, R.K. Mehra and Ved Pal Singh. In the Code of Criminal Procedure there is only Section 319 which empowers the Court to proceed against other persons appearing to be guilty of an offence. Section 319 of the Code of Criminal Procedure lays down as follows :

"Power to proceed against other persons appearing to be guilty of offence

(1) Where, in the course of any inquiry into, or trial of, an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under subsection (1) then

(a) the proceedings in respect of such person shall be commenced afresh, and the witneses reheard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

Where in the course of enquiry into or trial of an offence, it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, Court may proceed against such person for the offence which he appears to have committed. Special Judge, Bhiwani could thus proceed on the basis of evidence led before him. What is evidence has been defined in Section 3 of the Evidence Act. "Evidence" means and includes

(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) all documents produced for the inspection of the Court, such documents are called documentary evidence.

Special Judge, Bhiwani could have exercised the powers vesting in him under Section 319 of the Code of Criminal Procedure on the basis of evidence which should have been concrete and tangible. He could not exercise power vesting in him under Section 319 of the Code of Criminal Procedure on mere conjectures and surmises as conjectures and surmises do not have any place in law.

For the reasons given above, these criminal revisions are allowed and the impugned orders passed by the Special Judge, Bhiwani are quashed.

Revision allowed.