Siri Ram vs State of Punjab

J.S. Sekhon, J.

S. Ram appellant was found guilty by the learned Special Judge, Ludhiana on a charge punishable under Section 7 read with Sec. 3 of the Essent all Commodities Act for violation of the provisions of Punjab Light Diesel Oil and Kerosene Dealers Licensing JUDGMENT 1978 and Kerosene (Fixation of Ceiling Prices) JUDGMENT 1970 vide order dated 29.3.1986 and awarded two years RI and fine of Rs. 2000/ or in default of payment thereof, to further suffer six months RI vide order dated 2941986. Feeling aggrieved against the above referred orders of conviction and sentence, he has come up in appeal.

In brief, the facts of the prosecution case are that on 21111984 ASI Sant Kumar then posted at CIA Staff, Ludhiana alongwith Darshan Singh, Sadhu Singh and Major Singh Constables. was present at Gill Chowk, Ludhiana in connection with investigation of a case registered vide FIR. No. 110 of 1984 under Sections. 457/380 IPC at Police Station Focal Point, Ludhiana. Tarsem, Lal PW was also with the police party. The ASI received a secret information to the effect that Siri Ram accused was selling kerosene oil in black at the rate of Rs. 5/ per liter as against the control rate of Rs. 2.30 Ps. at the back of ATI Chowk, Ludhiana. Taking this information to be credible, AST Sant Kumar sent intimation Ex. PB through Constable Sadhu Singh. to Police Station Division No. 6, Ludhiana on the basis of which formal FIR Ex., PB/1 was recorded by ASI Kishan Chand at 5.13 PM for offence under Sec. 7 of the Essential Commodities Act. Thereafter, this police officer paid Rs. 200/ i.e. two currency notes of the denomination of Rs. 1OO/ each to Tarsem Lal besides handing over container Ex. P3 and prepared memo Ex. PA. Tarsem Lal was instructed to approach Siri Ram and purchase kerosene oil with the aforesaid amount. He was instructed to give signal by touching his head after the purchase of oil. Major Singh Constable in civilian clothes was deputed as a shadow witness and to give signal to the police party after the purchase of the kerosene oil. The police party then proceeded to the spot. Tarsem Lal PW1 approached the accused apprised himself that the rate of kerosene oil was Rs. 5/ per litre. This witness then told the accused that the actual rate of kerosene oil was Rs. 2.30 paise per litre and as to why he was demanding higher price. The accused then retorted that Tarsem Lal may or may not purchase oil but he will sell it at the said rate. The accused then sold 40 litres of kerosene oil for Rs. 200/ to Tarsem Lal, PW. Tarsam Lal handed over the currency notes Ex P1 to Ex. P2 and the can Ex. P3 was filled by the accused with 40 litres of kerosene oil. Tarsem Lal then gave the appointed signal by touching his head. Constable Major Singh, who was present at distance of 4/5 karams from them also gave signal to the rest of the police Party, which was waiting near the corner of street. AST Sant Kumar and other police officials then rushed to the spot and arrested the accused. The currency notes Ex. P1 and Ex. P2 were recovered from the personal search of the accused besides another amount of Rs. 100/. Two drums containing kerosene oil were also found lying at the shop. Seven empty drums were also lying in the street. All these drums alongwith measure Ex P5, the funnel Ex P6 and another measure Ex. P7 etc were taken into possession. The canny Ex. P3 containing 40 Litres of kerosene oil was also taken into possession after sealing it. After completion of investigation, the accused was arraigned for trial on such like allegations by submitting challan before the special Judge appointed under the provisions of Essential Commodities Act.

The trial Court served notice upon the accusedappellant of the abovereferred allegations. The accused, however, pleaded not guilty to the same and claimed to be tried.

In order to prove its above referred case before the trial Court, the prosecution examined Tarsem Lal, PW1. Constable Major Singh PW2, ASI Sant Kumar PW3 and Darshan Singh PW4, Junior Auditor, of the office of District Food and Supplies Controller, Ludhiana.

The version of the accused in his statement recorded under Section 313 of the Code of Criminal Procedure by the Court was that of innocence and false implicationcontending that he never sold any kerosene oil but used to run a tea stall. He further stated that he had a quarrel with HC Mohan Lal posted at Police Post, Arora Palace of Police Station Division No. 6 on 1581984 and that, he has been implicated falsely in this case by that Head Constable in collusion with ASI Sant Kumar When called upon to enter his defence the accused examined Yash Pal DW 1 who supported the above referred version of the accused regarding running of tea stall and quarrel with Head Constable Mohan Lal.

The trial Court, however, believing the prosecution version convicted and sentenced the appellant as referred above for selling kerosene oil at higher rate than the fixed one.

I have heard the learned counsel for the parties, besides perusing the record.

Mr. Amrit Lal Jain learned counsel for the appellant assailed the findings of the trial Court mainly on the ground that ASI Sant Kumar was not competent to search and seize kerosene oil not authorised by the State. Government under Section 8 of the Kerosene Price Control JUDGMENT 1956 or under the provisions of Section 7 of the Kerosene (Fixation of Coiling Prices) JUDGMENT 1970 as only a Police Officer not below the rank of a Sub Inspector or any other officer of the Government of or an equivalent rank, authorised in this behalf by the State Government is competent to do so. He has further contended that the provisions of the Code of Criminal Procedure would not be applicable to the seizure of the Special Act would prevail over that of the general law. Thus, he maintains that this illegality has vitiated the entire trial. Mr. Baldev Singh, learned counsel for the State, on the other hand, maintained that the offence under Section 7 of the Essential Commodities Act has been made cognizable and nonbailable under Section 10A of the Act as amended from time to time and thus Assistant Sub Inspector was competent to take cognizance of the cognizable offence and search and seize kerosene oil. He has further contended that no prejudice has been caused to the accused due to this irregularity in the investigation by an Assistant Sub inspector and that it will not vitiate the trial. Reliance in this regard has been placed in the decision of the Apex Court in Shri Durga Dass v. State of Himachal Pradesh, 1973 (II) Criminal Law Journal 1138. Mr. Baldev Singh has also relied upon the observations of the Apex Court In H.N. Rishbud and another v. State of Delhi, AIR 1955 Supreme Court 196 in support of the proposition that the investigation by an officer not authorised would not vitiate the trial.

The law is well settled on the point that any illegality or irregularity during the investigation of the case is not sufficient to vitiate the trial or conviction unless it has resulted in prejudice to the accused or in miscarriage of justice. The observations of the final Court in Durga Dass v. State of Himachal Pradesh, AIR 1973 (11) Crl. L. 1138 can be referred with advantage in this regard. In that case, the Sub Inspector of the Police was not authorised to investigate the case under Section 5A of the Prevention of Corruption Act, 1947 and the conviction was sought to be set aside on that score before the High Court. The High Court, however, considered this contention and rejected it. The Apex Court in para 8 of the judgment agreed with the findings of the High Court. holding that irregularity in the investigation would not vitiate the trial or conviction in the absence of any evidence that the appellant, having been prejudiced.

In H.N. Risbud and, another v. State of Delhi, AIR 1985 SC 196, the final Court while considering the provisions of Section 5A of the Prevention of Corruption Act, 1947 (as amended by Mt. No. 59 of 1992) providing that investigation for an offence under that Act shall not be conducted by an officer below the rank of Deputy Superintendent of Police without specific order of the Magistrate while observing that these provisions are mandatory and not directory in nature and, that the investigation conducted in violation thereof bears the stamp of illegality committed during the investigation of the case has no direct bearing on the competency of the court to take cognizance of the offence or to vitiate the trial unless it has resulted in miscarriage of justice or prejudice to accused.

In Munnalal v. State of Utter Pradesh, AIR 1964 SC 28, again in the Apex Court following its earlier view in H.N. Rishbud''s case (supra) that illegality during the investigation of the case in not following the provisions of Section 5A of the Prevention of Corruption. Act. 1947 would not be itself sufficient to vitiate the trial unless it has resulted in miscarriage of justice, The above referred view was again affirmed by the Supreme Court in Dr. M.C. Sulkunte v. State of Mysore, AIR 1971 SC 508.

Consequently, there is no escape but to hold that investigation conducted by ASI Sant Kumar who was not authorised by the State Govt. under Clause 7 of the Kerosene (Fixation of Ceiling Prices) JUDGMENT 1970, as only officer not below the rank of Sub Inspector or any other officer of the Government of above or of equal rank could have been authorised to do so, although illegal yet is not sufficient to vitiate the trial as no prejudice has been caused to the appellant.

On the merits of case, it appears that the appellant was not found selling Kerosene oil at a price higher than the one fixed by the District Magistrate under clause 3 of the Kerosene Oil (Fixation of Ceiling Price) JUDGMENT 1970 at the place and in the manner stated by ASI Sant Kumar because according to Tarsem Lal PW 1, the only independent witness, had contacted the appellant at his shop where he was selling the Kerosene Oil at the outset. It is not a stray admission on his part as in the later portion of the examinationin chief he has stated that the police found three drums containing kerosene oil in the shop of the accused while seven empty drums were lying in the street close to the outer door of the shop. He has further clarified the drums having kerosene oil were lying inside the shop and were taken in possession after due sealing. Whereas according to Constable Major Singh, PW 2 a shadow witness, the accused was found selling kerosene oil on the road near the tubewell. He went to the extent of stating that there was no Khokha where the kerosene oil was being sold but it was an open space along the road. According to ASI Sant Kumar, PW 3 the accused was selling kerosene oil at a tubewell which was located on the road. He has further stated that the tubewell was located at a distance of about 200 yards from the north of point ''A'' shown in the plan Ex PC of the spot and that the tubewell is located in the park. The park is surrounded by a boundary wall with an opening measuring 11''12'' at point ''A''. The height of the compound wall is 3�'' A perusal of the rough site plan Ex. PC also shows that the place where the accused was found selling kerosene oil is not located near any shop but along the road.

Consequently, in view of the above referred contradictions qua the place where the accused was found selling the kerosene oil and the place from where three drums of kerosene oil were recovered lend support to the version of the appellant that he never indulged in the sale of kerosene oil but used to run a teastall. Keeping in view that the benefit of every reasonable doubt is to be given to accused and not to the prosecution there is no escape but to conclude that the prosecution has failed to establish its case beyond reasonable doubt. If that is so then there is no .option but to accept the appeal and set aside the order of conviction and sentence of the trial Court. It is ordered accordingly, The fine if paid shall be refunded. The appellant is, on bail. The bail bonds are ordered to be discharged.