Shiv Parshad vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated March 26, 1987, passed by Special Judge, Karnal, by which Shiv Parshad, appellant, has been convicted under Section 7 of the Essential Commodities Act, 1955, for violating the provisions of the Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENTs, 1977 and Haryana Sugar Dealers Licensing JUDGMENT and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/ and in default of payment of fine, to undergo further rigorous imprisonment for three months.

The prosecution case, briefly stated, it that in June and July 1985, the accused was posted as Salesman in CONFED at Samalkha and during that period, 130 quintals of imported sugar had been issued by the District Food & Supply authorities for its further sale to the consumers on the basis of permit issued by the District Food & Supply Controller. These permits could be issued to Halwais, Restaurants, Hostels, Canteens, etc. Besides, sugar could also be sold to household consumers at the rate of 5 kgs. per household consumer per month on the basis of ration cards issued to such persons by the District Food & Supply Controller from July 5, 1985 to July 8, 1985, permits were issued by Dharam Singh Mann, Assistant Food and Supply Officer but the same were not honoured. Consequently, on July 9, 1985, a complaint to this effect was made before him, whereafter he alongwith Sub Inspector Shiv Sharan went to the CONFED depot at Samalkha. On checking, instead of 130 quintals of imported sugar, which had been issued to the said depot, only 45 quintals were found. During the course of enquiry, the accused vide his writing, Ex.PC, admitted that he was in need of money and, therefore, he had sold 85 quintals of sugar and had deposited the money with the Accounts Officer, CONFED, Panipat. Thereafter, Shri Dharam Singh submitted this report, Ex.PC., to the District Food and Supplies Officer, on the basis whereof complaint, Ex.PA, was lodged with the Senior Superintendent of Police, Karnal, which led to the registration of formal FIR, Ex.PA/1. After completion of necessary investigation, challan was presented against the accused.

The trial Court vide its order dated 22.2.1986 framed the following charge against the accused :

"I, Babu Ram Gupta, Presiding Officer of the Special Court, Karnal, do hereby charge you accused Shiv Parshad son of Champa Singh son of Hardev Singh, Caste Tyagi, aged 35 years, House No. 5291, Bharat Nagar, Thora Kothe, Basant Road, Pahar Ganj, Delhi, that during the months of June and July, 1985, in the area of Samalkha, you were the Salesman of CONFED and you in that capacity did not correctly account for the sales of sugar in the account books maintained by you for that purpose and the sales of sugar shown in those accounts books did not confirm to the actual transactions made; you made entries regarding drawal of sugar in the sales register without actually issuing the same and you thereby contravened the provisions of Haryana Prevention of Hoarding and Maintenance of Quality JUDGMENT 1977 and Haryana Sugar Dealers Licensing JUDGMENT and hence committed an offence punishable under Section 7 of the Essential Commodities Act and within the cognizance of this Court. And I hereby direct that you be tried on the abovesaid charge by this Court."

In reply to the charge, the accused pleaded not guilty and claimed trial, at which the prosecution was directed to lead evidence. In support of its case, the prosecution examined as many as 36 witnesses, namely, SI Devinder Pal Singh, SHO, Police Station, Samalkha (PW.1); R.S. Chauhan, Asstt. Manager (Commercial), FCI District Office, Karnal (PW.2); Gopal Dass, District Food & Supplies Officer, Karnal (PW.3); Gobind Dass, Assistant, Grade ''C'', FCI, Ambala (PW.4); Sher Singh (PW.5); Jiya Ram (PW.6); Daya Nand (PW.7); Bhulan (PW.8); Surjan (PW.9); Rameshwar (PW.10); Ram Karan (PW.11); Sat Narayan (PW.12); Daya Nand (PW.13); Lakhmi (PW.14); Suresh (PW.15); Karam Singh (PW.16); Assa Ram (PW.17); Darya (PW.18); Mange Ram (PW.19); Phool Singh (PW.20); Munshi Ram (PW.21); Ram Dhari (PW.22); Roshan Lal (PW.23); Parbha Ram (PW.24); Umed Singh (PW.25); Balwan Singh (PW.26); Ishwar Singh (PW.27); Anand Parkash (PW.28); Shiv Kumar (PW.29); Vinod Kumar (PW.30); Manga (PW.31); Rattan Singh (PW.32); Satya Parkash Goyal (PW.33); Mohan Lal, Storekeeper, CONFED, Area Office, Panipat (PW.34); Dharam Singh Mann, Assistant Food & Supply Officer (PW.35) and SI Dev Dutt (PW.36).

When examined under Section 313, Criminal Procedure Code, the accused admitted that in the months of June and July, 1985, he was posted as Salesman, CONFED, Samalkha, but he contended that one Dharam Pal was also posted with him. He also admitted to have received 130 quintals of imported sugar for distribution but controverted the remaining evidence against him. He also controverted his writing, Ex.PD, on the ground that it had been made under duress. In reply to the question that he had not issued the requisite quota of imported sugar to PW.5, PW.6, PW.8, PW.13, to PW.25, PW.27 and PW.32, he contended that the imported sugar was meant for free sale. He finally contended that the rates of nonlevy sugar in the open market were rising and to bring down the rates, sugar had been imported and allowed to be sold at fixed rates, openly without production of ration cards. He also admitted that a complaint had been made against him that he was selling imported sugar at a higher rate but denied having received any instructions according to which the imported sugar was to be sold. In his defence, he produced documents, Ex. D.1 to D.3 and thereafter closed the evidence.

I have heard Mr. Ashit Malik, Advocate for the appellant and Mr. Gobind Dhanda, Assistant Advocate General, Haryana, and have gone through the evidence on record.

PW.1 SI Devinder Pal, the then SHO of Police Station, Samalkha, is only a formal witness, who on receipt of letter, Ex.PA, from District Food and Supply Controller, Karnal, had drawn the formal FIR, Ex.PA/1. Similarly, Gopal Dass, District Food & Supplies Officer (PW.3), is also a formal witness, who on receipt of report, Ex.PC, submitted by PW.35 Dharam Singh Mann, Assistant Food & Supplies Officer, had sent the same to the police for registration of the case against the appellant.

PW.2 R.S. Chauhan, Assistant Manager (Commercial), Food Corporation of India, Karnal, stated that on the basis of the letter, photostat copy of which is Ex.PB, issued by General Manager, CONFED, Karnal, and after obtaining three signatures of the appellant, he had authorised the appellant to lift 32.5 metric tonnes of imported sugar.

PW.5 to PW.27, PW.31 and PW.32 are the persons who were entitled to purchase the imported sugar against their ration cards or permits and who while appearing in the witness box, produced their respective ration cards and stated that none of them had purchased imported sugar from the accused against their ration cards. None of witnesses was seriously crossexamined. The only common question put to them was whether there was any person in their village bearing the same name, to which some of the witnesses replied in the negative and some of them in the affirmative.

PW.28 Anand Parkash, a Halwai of Samalkha, stated that he had purchased 2 quintals of imported sugar from CONFED depot, Samalkha, run by the accused as its salesman, without any permit. Similarly, PW.29 and PW.30 stated that on 29.6.1985, each of them had purchased 2 quintals of imported sugar from the accused, who at the relevant time was salesman at CONFED branch, Samalkha. None of the witnesses was seriously crossexamined except the price at which the accused had sold imported sugar to each of them.

PW.35 Dharam Singh Mann, Assistant Food & Supplies Officer, at the relevant period, deposed that imported sugar had been received in Karnal district for distribution; that there was a wholesale depot of CONFED at Samalkha which had been opened for sale of the imported sugar; that 130 quintals of imported sugar had been allotted to Samalkha area by the Area Manager and the same had been given by him to the accused on 29.6.1985. This witness further deposed that the sugar was to be supplied on the basis of the permits which were to be issued by him and also to the ration card holders; that on 5.7.1985, some persons had come to him and he had issued permits to them uptil 8.7.1985; that on 9.7.1985, a complaint was received against the accused that these permits had not been honoured, whereupon on the same day, he (PW.35) alongwith SI Siri Charan Singh had gone to the accused and got opened the godown, whereas against 130 quintals of sugar which had been issued to the accused, only 90 bags of sugar containing 45 quintals of sugar were found. He further stated that the accused had also brought two sales registers, Exs.P.1 and P.2, which did not stand certified from their office; that on his inquiry, the accused had told him that imported sugar had been sold by him in Samalkha Mandi and village Samalkha; that from 9.7.1985 to 18.7.1985, he kept on contacting the ration card holders and confectioners, but none of them admitted having purchased any imported sugar from the accused and that he had submitted his report, Ex.PC, to the District Food & Supply Controller, Karnal, which was signed by him and was correct. When cross examined, nothing material came out so as to shake his testimony.

In fact, in my opinion, all the essential ingredients of the offence in question stand admitted by the accused in his statement under Section 313, Criminal Procedure Code. The accused in his statement admitted that in the months of June and July, 1985, he was posted as a Salesman, CONFED at Samalkha and had been entrusted with the job of storage and sale of imported sugar. This fact was admitted by him with a contention that one Dharam Pal was also posted with him. He also admitted to have received 130 quintals of imported sugar for distribution. When he was examined by the trial Court regarding nondistribution of the imported sugar to the cardholders appearing as PW.5, PW.6, PW.8, PW,13 to PW.27, PW.32, he contended that the imported sugar was meant for free sale. As the end of his statement, he had also contended that no instructions regarding the distribution of imported sugar, were brought to his notice. In his defence, the accused also placed on the record documents, Exhibits D.1, D.2 and D.3. Ex.D.1 is the printed hand bill stated to have been issued and distributed by the General Manager, Super Bazar, Karnal, inviting the public to purchase imported sugar. Ex.D.2 is a "No Dues Certificate" whereby it was certified by the Area Manager, CONFED, Panipat, that nothing was due from the accused. Ex.D.3 is that carbon copy of demand draft for lifting of free sale sugar. Learned counsel for the appellant argued that as was evident from hand bill, Ex.D.1, there was no restriction of any sort on the distribution/sale of the imported sugar. This hand bill did not bear any date and it was also not got proved according to law. Moreover, vide another circular bearing No. F.G.285/32470 dated 17.10.1985, issued by the Director, Food & Supply, Haryana, all the quantitative restrictions on sale of imported sugar had been lifted. Because there was no date on the hand bill, Ex.D.1, and it was not proved according to law, this hand bill does not, in any way, help the appellant. Vide another circular dated 15.6.1985, the photostat copy of which is Ex.PE, imported sugar was to be issued on the basis of permits issued by the District Food and Supplies Controller in favour of industrial canteens, workers'' canteens, College canteens and on the occasion of marriages, etc. Besides, imported sugar could also be sold to each of the authorised ration cardholder at the quantity of 5 Kgs. per household consumer per month.

Learned counsel for the appellant further contended that the instructions contained in Ex.PE had not been brought to the notice of the appellant. I find no force in this contention of the simple reason that ignorance of law is no excuse.

Learned counsel for the appellant finally argued that the occurrence took place in the month of July 1985 and the appellant was convicted on March 26, 1987 and as the appellant had faced the agony of trial for about twelve years and the offence attributed to him was not heinous, he be dealt with leniently in the matter of sentence. I am of the considered view that the ends of justice will be amply met if instead of sentencing the appellant, he be dealt under the provisions of the Probation of Offenders Act, 1958. Accordingly, the sentence of the appellant is suspended and he is ordered to be released on probation on this furnishing bond in the sum of Rs. 10,000/, with one surety in the like amount, to maintain peace and be of good behaviour for a period of two years from today.

The appeal is, consequently, allowed to the extent indicated above.