Santosh vs The State of Maharashtra

A.I.S. Cheema, J.—Appellant-original accused (hereafter referred as "accused") has been convicted in Summary Case No.11 of 1997 by the Additional Sessions Judge � Judge of the Special Court under Essential Commodities Act, Jalgaon, vide Judgment dated 20th May, 2000. Appellant-accused has been convicted u/s 3 punishable u/s 7 of the Essential Commodities Act, 1955 and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs.5000/- (Rupees Five Thousand) and in default to suffer simple imprisonment for forty-five days.

Case of prosecution in short is as under:-

On 3rd October 1997, Supply Inspecting Officer of Jalgaon, PW-1 Shri Marathe along with District Supply Officer Shri Jadhav and others, on information, carried out raid at the house of the Appellant-accused at Radhakishan Wadi, Jalgaon. In the search 21 cylinders of following descriptions were found in the house:-

Panchnama of the cylinders found was drawn in presence of Panchas (Exhibit 28). The cylinders were attached and the Appellant-accused was interrogated. He gave his statement (Exhibit 30). PW-1 Kashinath Marathe filed complaint to the Zilla Peth Police Station, Jalgaon. Crime was registered at Cr. No.19 of 1997 u/s 3 punishable u/s 7 of the Essential Commodities Act, 1955. In the investigation, sufficient material was found and charge-sheet came to be filed.

Charge was framed u/s 3 punishable u/s 7 of the Essential Commodities Act, 1955. The accused pleaded not guilty. In defence the accused did not deny that 21 cylinders as claimed by the prosecution were found from the possession of the Appellant- accused. However, according to him, the Appellant was authorized consumer of two cylinders of Hindustan Petroleum and two cylinders of Bharat Petroleum. He claimed that one cylinder was owned by one Baburao Narayan Chaudhari of Asoda and kept at his place for filling gas. One cylinder belonged to his brother. Remaining 15 cylinders were owned by Ashok Kundanmal Jain of Jalgaon, proprietor of Divine Gas Plant. Shri Jain did not have sufficient place to store the cylinders and so they were kept at the house of the Appellant-accused.

Before the trial Court, there is oral evidence of complainant PW-1 Kashinath Marathe. He proved the Panchnama Exhibit 28 and the F.I.R. at Exhibit 29 and statement which was given by the Appellant-accused to the raiding party Exhibit 30. Looking to the defence of the Appellant- accused, prosecution did not examine any further witnesses.

The trial Court considered the oral and documentary evidence and found that the Appellant-accused did not explain his possession of the cylinders and found the accused guilty.

I have heard learned counsel for the Appellant-accused. According to him, it was not ascertained if the Collector had initiated confiscation proceedings u/s 6A of the Essential Commodities Act. Merely because the Appellant-accused had 21 cylinders in possession, it was no offence. It has been argued that the Appellant-accused had mentioned as to whom the cylinders belonged and thus he has discharged his liability. Photo-copies of the Gas Cards produced by the accused were not considered. Thus, the argument is that the Appellant-accused deserves to be acquitted.

Against this, learned A.P.P. submitted that the trial Court has properly gone through the provisions of law as were applicable at the time concerned and the accused has been appropriately convicted. Accused did not deny that so many cylinders from his possession were seized. The raid was carried out due to complaint that the accused was doing business in supply of gas illegally and without license. Thus, the learned A.P.P. requested that the Appeal may be dismissed.

I have gone through the record including the Judgment of the trial Court and heard counsel for both sides. Trial Court accepted the evidence of PW-1 and documents proved regarding seizure of cylinders from house of accused. It can be seen that the trial Court considered the defence taken by the Appellant-accused that some of the cylinders belonged to him and one was of his brother and some were kept by people known to him, at his place. The trial Court rightly came to the conclusion that the photo-copies of documents of consumer cards produced with statement u/s 313 of Code of Criminal Procedure, 1973 (at Exhibit 33 read with Exhibit 34 in papers of the trial Court) were not proved. The originals were not produced and photo-copies were not certified or got verified with original. It is not difficult to ask a few friends to give photo- copies of the front page of the consumer cards.

At the relevant time, "Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1988" was in force. Clause 6 applicable was as under:--

"6.Possession, supply or sale of liquefied petroleum gas equipments.- (1) No person shall, unless specifically authorised in this behalf by an Oil Company, supply or sell filled or empty cylinders, gas cylinder valves and pressure regulators to any person other than an Oil Company.

(2) No distributor shall, unless authorised to do so by by an Oil Company, supply or sell empty cylinders, gas cylinder valves or pressure regulators to any person except a consumer.

(3) No person shall possess cylinders, gas cylinder valves or pressure regulators, unless he is a consumer and the same has been supplied to him by a distributor.

(4) No person shall possess a cylinder which has not been supplied by an Oil Company or by a distributor.

(5) Even manufacturer of cylinders, gas cylinder valves and pressure regulators shall dispose of the items which do not conform to the respective Bureau of Indian Standards specifications after deshaping by crushing such items. "

Above sub-clause (3) of clause 6 of the Orders of 1988 makes it clear that the Appellant could not possess cylinders unless he was consumer and unless the same had been supplied by a distributor. In the present matter, possession of large number of gas cylinders is not disputed.

The prosecution was for offence u/s 3 punishable u/s 7 of the Essential Commodities Act, 1955. Section 14 of the Essential Commodities Act, 1955 reads as under:-

"14. Burden of proof in certain cases.- Where a person is prosecuted for contravening any order made u/s 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him. "

In view of Section 14 of the Essential Commodities Act, 1955, once the prosecution established that such 21 cylinders were seized from the Appellant-accused, violating above Order of 1988, as per the above Section "burden of proving" that Appellant-accused had the lawful authority to possess the said cylinders was on him. In fact looking at the provisions of the above Order of 1988, where possession of cylinders itself was barred unless the person is consumer and that the cylinder has been supplied by the distributor, the defence that the cylinders supplied to other people were in his possession, would really be no defence and even if the photo- copies were to be proved, the offence would not get absolved.

In the written statement u/s 313 of the Code of Criminal Procedure, 1973, filed at Exhibit 33, the Appellant-accused claimed that out of the cylinders, two of Bharat Petroleum were on his name. Against this, in Exhibit 30, the statement given by the Appellant-accused at the time of raid, proved by PW-1 Kashinath Marathe, the Appellant-accused had claimed that all the three cylinders of Bharat Petroleum were owned by him. Thus, when burden of proof as above was on him, the stand of the Appellant-accused was not steady regarding source of the cylinders.

Learned counsel for the Appellant-accused referred to Para 16 of the Judgment of trial Court to submit that in the trial Court applications were filed u/s 457 of the Code of Criminal Procedure, 1973, by other persons for release of cylinders and letter was sent to the Collector to clarify whether proceedings u/s 6A of the Essential Commodities Act, 1955 had been initiated, but the Collector did not respond. It was argued that it should have been ascertained from the Collector as to what steps were taken in that regard. This aspect has not weighed with the trial Court and I also do not find that this by itself helps the Appellant- accused to avoid the implications of the offence with which he was charged.

For reasons mentioned above, I do not find any reason to disagree with the reasonings and findings recorded by the trial Court holding the Appellant-accused guilty.

It has been argued by the learned counsel for the Appellant-accused that the incident in question is of 3rd October 1997, and now almost 17 years have passed and so benefit of the Probation of Offenders Act, 1958 may be given to the Appellant-accused and he may not be sent to jail. The trial Court considered the question of sentence and the arguments that the Appellant- accused was sole earning member of the family and that there was no previous conviction. It was observed that it was an economic offence and the trial Court did not give benefit of the Probation of Offenders Act, 1958. The sentence imposed was of three months rigorous imprisonment and fine of Rs.5000/-. It is argued by the learned counsel for Appellant-accused that, as per record the Appellant-accused has already undergone imprisonment of 7 Days as under-trial. There is no earlier criminal case or conviction pointed out against the Appellant-accused.

Sentence imposed is minimum. Looking to nature of offence, I do not find it appropriate to reduce the same.

I, thus proceed to pass following order:-

ORDER

(A) The Appeal is rejected.

(B) Appellant-accused shall surrender to his Bail Bonds and sentence imposed shall be carried out.

(C ) The fees of Advocate Shri Nagode, appointed Counsel for Appellant-accused, is quantified at Rs.8000/- (Rupees Eight Thousand).