State of Haryana vs Sham Sunder

S.S.Rathor, J.

On 27.9.1986 when admittedly, the accused who is the proprietor of M/s. Mittal Gas Service, Hissar, was not present at his shop in question, Shri Tarlochan Singh, District Food and Supply Controller(PW 1) in the Company of Shri K.C. Arora Inspector (PW 2) inspected the shop and following defects were found in the working of the Gas Agency :

1) Stock & Rate Board was not displayed which is required to be displayed according to the law.

2) On enquiry, it was found that Priority Register had not been maintained which was required to be maintained.

3) Cylinders were also checked physically in the godown and ten filled cylinders were found short. \\Six cylinders were got weighed and four were found less in weight.

4) Delivery boy was not possessing the Spring Balance which is to be kept by him under the rules.

The aforesaid defects were noticed by the raiding party headed by Shri Tarlochan Singh(PW 1) in terms of the instructions dated 24.5.1986 issued by District Magistrate, Hissar and copy of the said order is Ext. PE on record. In view of the instructions Ext. PE, it was alleged that the accused committed violation of condition Nos. 5, 7 and 13 issued by the District Magistrate under clause 5 of the Haryana Commodity Price Market and Display JUDGMENT 1975 read with Haryana Commodity Price Marketing Display (Ist amendment) JUDGMENT 1981 and punishable under Section 7 of the Essential Commodities Act, 1955. Formal FIR Ext. PB/1 was recorded with the local Police Station on receipt of the report (Ext PB) sent by Inspector K.C. Arora (PW 2). After taking into possession all the relevant record of the Agency and investigation of the case by way of collecting incriminating evidence against the accused, challan was presented in the Court against the accused. After recording that a prima facie case under section 7 of the Essential Commodities Act had been made out against the accused, the trial Court issued a notice conveying the substance of the accusation. The accused denied the prosecution allegations and pleading not guilty, claimed trial.

To prove the guilt of the accused, prosecution examined aforesaid Shri Tarlochan Singh (PW 1) and PW2 Shri K.C. Arora in addition to Sh. Ram Sarup who was examined as PW 3. On the closure of the prosecution evidence after giving up the remaining witnesses as unnecessary, the accused was examined under Section 313 Cr.P.C. Denying all the incriminating evidence put to him, he pleaded that he was not present at the shop and thus proceedings conducted by PW1 and PW2 were not conducted correctly. He alleged that the weighment of the cylinders was not done correctly; and that two cylinders were shown over weight and four cylinders were shown less in weight, which was not possible because the gas cylinders were having seals intact having been affixed by the Refinery. He further alleged that the local Sub Divisional Magistrate was unhappy rather angry with him and at his instance, this false case has been foisted against him.

After appreciating the ocular version of the prosecution witnesses and other documentary evidence on record in the shape of relevant instructions referred to above, the trial Court disbelieved the prosecution version and acquitted the accused.

Admittedly, the accused was not present at the shop. PW1 Shri Tarlochan Singh has claimed that the shop in question was visited at 1.00 PM, whereas PW2 Shri K.C. Arora has stated that the shop was visited by both of them at 4.00 P.M. These two prosecution witnesses are not rustic villagers. They are highly placed officials of the Food & Supply department. Such a discrepancy can certainly be termed as material one. Again, these two prosecution witnesses are not at agreement to say that another employee of the Department Mr. K.C. Sahi was with them or not. Shri K.C. Arora(PW 2) denies the presence of Mr. Sahi whereas Tarlochan Singh(PW 1) categorically stated that Mr. Sahi was present at the time of inspection of the shop. Again this contradictory stand of the two responsible officials cannot be ignored lightly. The matter does not end here. According to PW1 Shri Tarlochan Singh, the gas agency had done booking of the demand of cylinders on the proforma of the Indian Oil Corporation and such proformas were issued serial wise and each memo, had been correctly issued. Hence no irregularity was found by these witnesses. On the other hand, Shri K.C. Arora (PW2) stated that no proformas were kept by the agency. It is strange that in document Ex. PA, presence of the delivery boy is mentioned but inspite of this, PW 1 Shri Tarlochan Singh denied the presence of a boy in the shop at the time of inspection. Strangely when this witness was confronted with the conditions of Ext. PA, he changed his version and admitted that one Jasbir Singh, delivery boy was present. Again, Shri K.C. Arora (PW 2) contradicted PW1. Shri Tarlochan Singh and stated that delivery boy on duty, was one Bharat Bhushan. PW2 Shri. K.C. Arora denied the presence of cylinders in the three wheeler but when his attention was drawn to document Ext. PC, he admitted that there were cylinders in the said vehicle. No memo or document was prepared to corroborate the inspection done by these two official witnesses. In view of the discussion made above, the very visit of these prosecution witness to inspect the shop becomes doubtful. These material contradictions were not expected from such highly placed officials of the department.

Equally another inherent lacuna which renders the prosecution story incredible is that no person much less an independent one was joined from the locality before conducting a thorough inspection of the premises. In view of this, it would not be safe to base conviction on the interested tainted and contradictory evidence of the prosecution. The trial Court did no wrong in ignoring the ocular version of the aforesaid prosecution witnesses while placing reliance on a judgment of this Court reported as Gurmail Singh v. State of Punjab, 1986 (1) CLR 400. The trial Court rightly discredited the official version after weighing on the touchstone of material discrepancies and contradictions. Even otherwise, if the memory of the prosecution witnesses in this case had faded away, the benefit of this infirmity has also to go to the accused and was rightly afforded by the trial court to him. Even otherwise, it is admitted by the prosecution that on the same day Shri D.K. Sharma of the Indian Oil Corporation had conducted regular inspection of the agency and copy of the inspection report is Ext. D1 with no incriminatory remarks therein.

Mr. P.C. Khaneja an official of the Indian Oil Corporation appeared as a defence witness and categorically stated that filling of the cylinders is done by an automatic process in the refinery and after filling, they are sealed with no chances of gas leaking out. In any case, gas cannot be injected in the cylinder by any person or by the gas agency. Two cylinders were found with excess weight and four cylinders with less weight. Two views are possible on this point; one is that weighment was not done correctly at the spot at the time of checking, second possibility that the cylinders lost weight due to leakage of the gas, cannot be ruled out. Every mechanical process does develop a defect in fact. Benefit of this must go to the accused.

In view of the discussion made above, there is no escape but to conclude that the prosecution has failed to prove guilt against the accused beyond reasonable doubt. The reasons recorded and the conclusions arrived at by the trial Court are just and legal based on correct appreciation of evidence on record. Neither the evidence has been misappreciated nor any material evidence has been ignored. Finding no scope of interference in the order of acquittal earned by the accused, this appeal filed by the State is ordered to be dismissed.