State of Madhya Pradesh vs Kale Khan alias Gendalal

N.C. Dwivedi, J.—The State of Madhya Pradesh v. Kale Khan alias Gendalal Cri. Appeal No. 1060 of 1974 and The State of Madhya Pradesh v. Kale Khan alias Gendalal Cri. Appeal No. 1059 of 1974 arise out of the same transaction though two separate criminal cases were instituted. They have been consolidated and the judgment in The State of Madhya Pradesh v. Kale Khan alias Gendalal shall govern the disposal of both these appeals.

In Cri. Appeal No. 1060 of 1974, The State of Madhya Pradesh has challenged the order of acquittal of the respondent u/s 3 read with section 7 of the Essential Commodities Act, 1955 for contravention of the provisions of M.P. Rice (Movement) Control Order, 1957 and the Madhya Pradesh Foodgrains (Restriction on Border Movement) Order, 1959 recorded in Cri. Case No. 1027 of 1971, decided on 19-4-1974, of the Court of Magistrate First Class, Waraseoni.

In Cri. Appeal No. 1959 of 1974, the State of Madhya Pradesh has challenged the order of acquittal of the respondent u/s 379 of the Indian Penal Code recorded in Cri. Case No. 1027 of 1971, decided on 19-4-1974, of the Court of Magistrate First Class, Waraseoni.

The prosecution Case is this : On March 10, 1971, Head Constable Visheshar Prasad (P. W. 10), Matabadal (P. W. 12) and Ramgovind (P. W. 2) had gone for checking on Mowad Border. The respondent and Madhosao (since deceased) came to the border in a truck driven by the respondent Kale Khan containing 53 bags of paddy for transport to the Maharashtra State. Either the respondent or Madhosao (since deceased) did not possess any permit. Head Constable Visheshwar Prasad (P. W. 10) effected seizure of the paddy as per seizure memo (Ex. P-2). After the seizure of the paddy, the respondent on the pretext of parking the truck, fled away along with the truck. He was, however, apprehended at Jarahmohgaon and another seizure memo was prepared.

In both these appeals I have heard Shri A.G. Telang, Dy. Government Advocate, for the appellant--State and Shri S.R. Nema, Advocate, for the respondent. We have perused the prosecution as also the defence evidence and considered the submissions of the advocates on either side.

The Magistrate gave cogent reasons in support of his finding that the respondent without any permit was illegally attempting to transport 53 bags of paddy to the Maharashtra State. I find this conclusion of the lower Court well supported by evidence.

The Magistrate rejected the prosecution version on the ground that according to the Madhya Pradesh Rice (Movement) Control Order, 1957, any police officer below the rank of Assistant Sub-Inspector could not take search or seize goods. I have perused the provisions of the Madhya Pradesh Rice (Movement) Control Order, 1957. It is true that as per clause 4 of the Madhya Pradesh Rice (Movement) Control Order, 1957, any police officer below the rank of Assistant Sub-Inspector could not effect search and seizure of the goods being wrongfully transported to the State of Maharashtra, but irregularity in the search could not affect the seizure of the goods or proceedings arising out of it.

In Taj Bahadur Singh v. The Sate of U.P. 1970 SCC 779, it was held that the fact that outsiders attested the Panchnama contrary to section 103, Criminal Procedure Code, was only an irregularity not affecting the legality of the proceedings.

In Radhakishan Vs. State of U.P., , it was observed as under. "It may be that where the provisions of sections 103 and 165, Criminal Procedure Code are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequences ensue, and the seizure of the articles is not vitiated......"

In Sunder Singh Vs. State of Uttar Pradesh, it was held as under. "Assuming that the witnesses who actually witnessed the search were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence in support of search and the recovery. Hence at the highest the irregularity in the search and the recovery, in so far as the terms of section 103 had not been fully complied with, would not affect the legality of the proceedings".

Following of the law as stated above, though the search and the seizure were made by the head constable Visheshar Prasad (P. W. 10) who was not authorised for the same under the provisions the M.P. Rice (Movement) Control Order, 1957, this irregularity or even illegality would not render the search and the seizure of the goods or the proceedings launched thereafter illegal. I am, therefore, of the view that the prosecution evidence excluding the hostile witnesses have conclusively established that the respondent and his master Madhosao (since deceased) were transporting paddy to the Maharashtra State without any permit and, therefore, they were liable for conviction. The order of acquittal recorded in both the cases is thus wrong and deserves to be set aside.

In regard to the sentence, the owner of the goods Madhosao is dead and the respondent was only the driver of the truck. However, after the seizure was effected, the head constable directed the respondent to park his truck. Instead of obeying this direction, the respondent fled away taking the goods with him and later on the goods were seized after pursuing the respondent. In the circumstances, the respondent who was the driver of the truck and had full knowledge about the transport of the goods in the truck without any permit, he must be held liable for contravention of the Madhya Pradesh Rice (Movement) Control Order, 1959 and the Madhya Pradesh Food grains (Restriction on Border Movement) Order, 1959 as also u/s 379 of the Indian Penal Code.

However, looking to the fact that the master of the goods is dead and the respondent acted because of his employment under him, severe sentence is not called for. Besides this, he is facing the prosecution for the last 8 years and only a driver. In my opinion, for each of the two offences, the sentence of till the rising of the Court and fine of Rs. 150 or in default, one month''s rigorous imprisonment shall meet the end of justice.

For the reasons given above The State of Madhya Pradesh v. Kale Khan alias Gendalal and The State of Madhya Pradesh v. Kale Khan alias Gendalal succeed and are hereby allowed. The order of acquittal of the respondent Kale Khan alias Gendalal in both the appeals is set aside. Instead, he is convicted u/s 3 read with section 7 of the Essential Commodities Act, 1955 for contravention of the provisions of the M.P. Rice (Movement) Control Order, 1957 and the Madhya Pradesh Food grains (Restriction on Border Movement) Order, 1959 and u/s 379 of the Indian Penal Code. He is sentenced to undergo imprisonment till the rising of the Court and to pay fine of Rs. 150 or in default, to suffer one month''s rigorous imprisonment for each of the two offences. The sentence of imprisonment till the rising of the Court shall run concurrently in both the appeals.