Ram Niwas vs State of Haryana

A.N. Jindal, J.—Ram Niwas appellant-accused (herein referred as ''the accused'') was prosecuted for keeping 1500 litres of kerosene in his possession, in violation of the Haryana Prevention of Hoarding and Maintenance of quality Order 1977 (herein referred as ''the Order''), punishable u/s 7 of the Essential Commodities Act, ultimately, he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2,000/- vide judgment dated 27/29.01.2000, passed by Special Judge, Narnaul.

The case was registered on the secret information by Sub Inspector Ram Chander, (herein referred as ''the Investigating Officer''), who in the company of Sant Lal A.F.S.O. and Hari Singh, Inspector, Food & Supplies Department, raided the premises of the accused and recovered seven drums, containing 1500 litres of kerosene and prepared the recovery memos Ex.PE and Ex.PG in that regard. Hari Singh, Inspector, Food & Supplies Department, prepared the rough site plan Ex.PH/3 and took it into possession the authority letter of accused Ex.PC vide memo Ex.PH/4 on 08.06.1998. The Investigating Officer got recovered the stock registers Ex.P2 to Ex.P4 and took it into possession vide memo Ex.PG. Ultimately, on completion of investigation, report u/s 173 Cr.P.C. was submitted against him.

On finding a prima facie case against the accused, he was charged u/s 7 of the Essential Commodities Act to which he pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined eight witnesses in all.

PW3 Ajit Singh, Clerk, Office of D.F.S.C., Narnaul proved the documents Ex.PC/1 and Ex.PC/2 that are relating to quality orders, vide which the accused was supposed to keep his sale and stock registers upto date and there should have been no discrepancy at the time of physical verification of the stocks.

PW8 Sub Inspector R.C.Yadav has stated that on sending ruqa Ex.PH to the police station, formal FIR Ex.PH/1 was registered at police Station, Narnaul. When he raided the premises of the accused, he was found in possession of eight drums of kerosene which were taken into possession vide memos Ex.PE and Ex.PG. During cross-examination, he has submitted that he did not make any written request to the District Food and Supply Controller to join him or allow any official to join him. He also did not join any independent witness from the locality. Besides the eight drums of kerosene, several other empty drums were also lying there. On perusal of the stock register Ex.P1, it transpires that on 31.05.1998, there was no kerosene in the stock and the accused did not show the sale register. Thus, the trial Court while relying upon the statements of PW4 Sant Lal, AFSO, and PW8 Sub Inspector R.C. Yadav observed that the accused was found in possession of 15 litres of kerosene on 06.06.1998 which was not in consonance with the entries in the stock register Ex.P1. Consequently, he was convicted and sentenced accordingly.

Arguments heard. Record perused. The precise allegations against the accused are that on 06.06.1998 at the time of raid by the Investigating Officer, the accused was found in possession of the excess quantity of kerosene. The prime issue involved in the case is whether the stuff so recovered at the spot on 06.06.1998 was kerosene. In this regard, the prosecution has sought to place reliance on the testimonies of PW4 Sant Lal, AFSO, Narnaul and PW8 Sub Inspector Ram Chander, Investigating Officer. Both are contradictory on material points. PW4 Sant Lal has stated that at the time of raid, seven drums were lying on the depot out of which six drums were full of kerosene and one drum was half filled. The Investigating Officer took one sample each from each drum and the said samples were sealed with the seal bearing impression "RC". One part of the sample was given to the accused Ram Niwas which he refused to accept, therefore, both the parts were taken into possession by the police vide memo Ex.PE whereas the Investigating Officer is either contradictory or silent. He did not explain in the examination-in-chief as to how many drums were taken into possession. He is silent about the number of samples which were taken out of the drums. During cross-examination, he has stated that eight drums were recovered which is quite contra to the statement made by PW4 Sant Lal. The story, set up by PW4 Sant Lal, is not in any way correct. Neither the records reveal that seven samples were taken i.e. one sample from each drum nor the Chemical Examiner''s report reveals that seven samples were sent to the Chemical Examiner. Rather FSL report Ex.PD reveals that only one sample bottle was sent to the Chemical Examiner, which was found to be of kerosene mixed with some blue coloured dye. The case of the Food & Supplies Department is that they had supplied the kerosene and not the kerosene mixed with some blue colour dye, thus, the stuff, recovered from the accused was kerosene or something different, is also a disputable question. Furthermore, it is still a mystery as to which bottle was sent to Chemical Examiner, sample was taken from which of the drums or whether it was taken from 8th drum, as stated by the Investigating Officer. The link evidence is missing in this case. The witness, who had deposited the sample with MHC and the witness who had sent the sample to the chemical Examiner only state about one sample and not about seven samples, therefore, it is still a mystery as to where the seven samples have gone. If only one sample was drawn from a drum then it is not explained as to why the samples were not taken from the other drums which were taken into possession by the Investigating Officer. That apart, Investigating Officer is quite silent if any sample was taken into possession, wrapped, sealed and deposited with MHC, as such the link evidence is missing in the case.

It is also significant to mention that the second part of the sample, so taken, was also not produced in the Court. No independent witness was joined. Even no reasons for joining the independent witness have been assigned. It would also be pertinent to notice that no witness has been examined by the prosecution in order to show that the accused was not supplied any kerosene after 31.05.1998 particularly on 06.06.1998, then it could not be said that he was not authorized to keep the same in his possession. No such ration card holder was examined in order to show that the accused had not supplied the kerosene to them and himself embezzled the same. PW4 Sant Lal, during the cross-examination, has admitted that Sub Inspector, Food & Supply had verified in the village regarding the distribution of kerosene by the accused to the ration card holders and had reported to the effect that the supply was correctly made by the accused to them in the month of May, 1998. Even the sale register, as produced on the record, reveals that the accused had made the supply to the ration card holders upto 31.05.1998 and the stock was nil. However, he came in possession of the kerosene on 06.06.1998, that was also meant for supplying to the ration card holders but he cannot be condemned before he could distribute the same to the public. It is not the case of an adulterated kerosene or storing the kerosene unauthorisedly.

Having perused the impugned judgment, it transpires that the trial Court has gone by the conjectures by stating that the physical verification did not synchronize with the stock register. The impugned judgment appears to have been framed on misappropriation of the evidence therefore, interference at my end has become inevitable.

Resultantly, I accept the appeal, set aside the impugned judgment and acquit the accused of the charge(s) framed against him. He is directed to be set at liberty forthwith. Bail bond/surety bond, furnished by him, stand discharged. Fine, if any deposited, be refunded.