Rizman Ali vs State Of Madhya Pradesh

This revision has been filed under Section 397 read with Section 401 of Cr.P.C. being aggrieved by conviction under Section 3 read with Section 7

of the Essential Commodities Act and sentenced to undergo S.I. for 6 months along with fine of Rs.1,000/- in default of payment of fine, additional S.I.

for 1 month passed by the Court of JMFC, Tikamgarh in Criminal Case No.3226/2011 vide judgment dated 25.10.2017. The applicant being aggrieved

by this conviction and sentence assailed an appeal before 5th Additional Sessions Judge, Tikamgarh registered as Criminal Appeal No.240/2017 and

disposed of vide order dated 27.05.2019 dismissed the appeal and confirmed the conviction and sentence passed by the trial Court.

The case of the prosecution against the applicant, in short, is that on 10.12.2011 at about 1:05 pm applicant was driving a truck bearing registration

No.MP09-HF-0929 carrying 25 tons I.P.L. urea in 500 bags. A.S.I. W.A. Khan (PW-3) posted at Police Chowki-Deri of Police Station Kudila

stopped the truck and asked for papers pertaining to the fertilizers. The applicant had shown only truck bilty (Ex. P-9), which was photo copy of the

bilty signed by transport contractor proprietor Sushil Kumar Agrawal. In this bilty, fertilizer received from Harpalpur and was to be delivered at

Vipanan Sangh Godown, Baldeogarh.

The applicant instead of delivering the fertilizer at Vipanan Sangh Godown, Baldeogarh he was taking the fertilizer at Kotra. W.A. Khan (ASI)

found that this fertilizer was illegally transporting by the applicant in contravention of Rule 4 of the Fertilizer (Movement Control) Order, 1973 issued

under Section 3 of the Essential Commodities Act, 1955. He immediately, informed this matter to concerned department. M.S. Yadav posted as

Senior A.D.O. in Agriculture Department after receiving the information went to the Police Station and inquired into this matter and submitted a

written application (Ex.P-1). After investigation, charge sheet has been filed against the applicant for the offence punishable under Section 3/7 of the

Essential Commodities Act for violation of Rule 4 of the Fertilizer (Movement Control) Order, 1973.

Learned counsel for the applicant submits that the trial Court framed the charges against the applicant, who abjured the guilt. Trial Court after

completing the trial and hearing both the parties delivered the judgment on 25.10.2017 and convicted the applicant under Section 3 read with Section 7

of Essential Commodities Act and sentenced to undergo S.I. for 6 months along with fine of Rs.1,000/-, with default stipulation. The applicant being

aggrieved by that conviction and sentence filed an appeal registered as Criminal Appeal No.240/2017. Appellate Court vide judgment dated

27.05.2019 dismissed the appeal.

Being aggrieved by the judgments of both the Courts below, the applicant filed this revision on the ground that both the Courts have not appreciated

the evidence in proper perspective, therefore, no violation of Rule 4 of the Fertilizer (Movement Control) Order, 1973 is made out. No doubt, fertilizer

was to be delivered to Vipanan Sangh Godown, Baldeogarh, but on the instructions of godown keeper, applicant was going to deliver the fertilizer at

Kotra. He did not commit any violation of said order, therefore, prayed to set aside the conviction and sentence passed against the applicant and acquit

him from the offence.

Learned Government Advocate for the respondent/State submits that applicant was taking fertilizer in contravention of Rule 4 of the Fertilizer

(Movement Control) Order, 1973 issued under Section 3 of Essential Commodities Act and committed offence punishable under Section 7 of Essential

Commodities Act. Both the Courts below have not committed any error in appreciation of evidence and rightly convicted and sentenced the applicant;

therefore, he prayed for dismissal of this revision.

Having heard learned counsel for both the parties, it emerges out that the applicant was convicted by the trial Court in Criminal Case No.3226/2011.

The applicant filed an appeal against the conviction and sentence registered as Criminal Appeal No.240/2017. The Appellate Court vide judgment

dated 27.05.2019 dismissed the appeal and confirmed the conviction and sentence passed by the trial Court. This fact goes to show that conviction and

sentence passed by the trial Court shall become final under Section 393 of Cr.P.C. In view of this proposition of law, the Revisional Court is having a

limited scope for appreciating the evidence in this revision. If there is any gross illegality or mis-appreciation of the facts found, then revisional Court

can invoke the revisional power or interfere in the sentence passed by the Courts below.

On perusal of the oral as well as documentary evidence recorded during trial, it is apparent that Baheer Ahmad Khan (PW-3) categorically stated

in his statement that on 10.12.2011 at about 1:05 pm applicant was driving the truck bearing registration No.MP09-HF-0929 carrying 500 bags of

I.P.L. Urea fertilizer. He stopped the said truck at Deri and asked for documents. He told that fertilizer was to be delivered at Baldeogarh. On asking,

where he is transporting this fertilizer, driver stated that he is going to deliver this fertilizer at Kotra. As per bilty, it was to be delivered at Baldeogarh,

but the said truck driver could not explain the fact that why he is transporting it to Kotra instead of Baldeogarh. He was not having any papers,

therefore, this witness seized the fertilizer and prepared a seizure memo (Ex.P-4) and informed the officers of Agriculture Department. After

preparing inquiry report (Ex.P-1), he submitted the report on 12.12.2011 and stated in the report that, fertilizer was illegally carried and transported by

the applicant.

M.S. Yadav (PW-1), who is Senior A.D.O. in Agriculture Department has submitted that truck was loaded with I.P.L. Urea and was not having

permit to deliver at Kotra. Urea was to be delivered at Baldeogarh. He prepared a report as Ex.P-1.

There is sufficient evidence on record that applicant had to delivered that fertilizer to Vipanan Sangh Godown situated at Baldeogarh but instead of

carrying it to Baldeogarh, he was illegally transporting the Urea to Kotra.

Learned counsel appeared for the applicant submitted that there was no space in the godown of Baldeogarh and applicant was directed to take the

fertilizer at the godown situated at Kotra but, this defence has not been taken by the applicant before trial Court.

Perused the examination of accused under Section 313 of Cr.P.C. It is mentioned that applicant took his defence that he has not committed any

offence. Police implicated him falsely. He nowhere took the defence that he was transporting Urea on the instructions of godown keeper of Vipanan

Sangh, Baldeogarh. The applicant neither submitted any documentary evidence to substantiate his defence nor examine godown keeper. It appears

that the defence taken by the applicant was an afterthought.

There is a sufficient material available on record that the applicant was transporting Urea without having any authority in the violation of Rule 3 of

the Fertilizer (Movement Control) Order, 1973. ASI, W.A. Khan (PW-3) by virtue of Section 4 of the Fertilizer (Movement Control) Order, 1973 has

stopped and checked the truck, it is found that it is transporting in violation of the order.

This Court is of the view that both the Courts below have not committed any error in convicting the applicant for the violation of the Fertilizer

(Movement Control) Order, 1973 framed under Section 3 of the Essential Commodities Act. He is liable to be penalized as envisaged under Section 7

(1) (a) (ii) of the Essential Commodities Act.

Learned trial Court sentenced the applicant for S.I. for six months along with fine of Rs.1,000/-. Learned counsel appeared for the appellant

submits that this is a harsh punishment. The applicant is not having any criminal antecedents. He was taking the truck on the instructions of owner of

truck. He is neither beneficiary of that Act nor received the said fertilizer from illegal source and prayed to consider the leniency of punishment.

Considered the submissions advanced by the learned counsel for the applicant. Under Section 7 (1) (a) (ii) of the Essential Commodities Act, there

is minimum 3 months punishment prescribed in the Act. Looking to the act of applicant, this Court is inclined to modify the imprisonment of applicant,

S.I. for six months to S.I. for three months and not inclined to interfere in the fine amount.

On the basis of foregoing discussions, this Court partly allowed this revision petition. The conviction passed under Section 3/7 of the Essential

Commodities Act is hereby upheld but sentence of imprisonment to undergo S.I. for 6 months is hereby reduced to S.I. for 3 months and fine and

default stipulation of the default would remain same.

In view of the above modification, this revision is hereby partly allowed and disposed of.

A copy of this order along with record be sent to the Courts below for information and necessary steps.