State of Punjab vs Nirmal Kumar and Ors.

M.M. Punchhi, J.

This appeal has been preferred by the State of Punjab for enhancement of sentence of the three accusedrespondents. It has not only been opposed but clean acquittal has been pleaded for the respondents by their learned counsel.

The prosecution case is that on 8.7.1983, S.I. Karnail Singh of P.S. Malout received secret information that a Government contractor in connivance with the SubDivisional Officer had sold Government cement entrusted to both and the said cement was shortly to be removed from the site of construction, and if a timely raid was conducted, the culprits could be caught redhanded. On receipt of the information, the case was registered and the said S.I. karnail Singh organised a party to raid the site. However, on the way, they found a tractor trolley driven by Veer Bhan, PW coming towards their side. The raiding party found the 3 accusedrespondents siting in the trolley. On seeing the police party, Nand Lal, respondent dropped down and ran away while the remaining two respondents Nirmal Kumar and Ram Nath were apprehended at the spot. 40 cement bags bearing the mark of the Government were found in the trolley.

Six persons were sent up for trial inclusive of the three respondents. Since there was no evidence against the other three, their statements even were not recorded under section 361, Criminal Procedure Code, Nand Lal, respondent admitted being in the trolley at the time of the police raid but denied having any thing to do with the cement. He said that he had requested a lift from the tractor driver, and when was confronted by the police, had left the spot. The remaining two pleaded similarly of having obtained a lift from the tractor driver.

The learned trial Judge observed that this fact was proved that the three accusedrespondents were found sitting in the trolley in which 40 bags of cement belonging to the Government were loaded and thus for keeping the cement in their possession without any licence or permit, they were to be held guilty. Additionally, it was taken into account that the running away of Nand Lal form the spot itself revealed that he had a guilty mind. The remaining two accusedrespondents obviously did not attract any such comment.

Clause 4 of the Punjab Cement (Licensing and Control) JUDGMENT 1973 provides for licensing of dealers. It says :

"No person shall obtain, attempt to obtain or store for sale or distribution, or offer for sale cement except under and in accordance with the terms and conditions of the license issued in this behalf by the licensing authority."

Thus, there is prohibition to a person obtaining or storing cement, but with the object of its sale or distribution or offer for sale, as also to sell it. A person merely being in possession of cement or keeping it without any license or permit and not for sale would not attract the provisions of Clause 4 of the JUDGMENTThe finding of the learned trial Judge that the accusedrespondents cannot absolve themselves from the criminal liability for keeping the cement in their possession without any license or permit is obviously misplaced in view of the import of Clause 4 of the JUDGMENT especially when the prosecution allegation itself was that Government cement had been sold, and it failed to prove that it had been sold to a particular person or that person had obtained it for the purpose mentioned in Clause 4. It is obvious that the cement was in the process of being transported and the finding is that the accusedrespondents were sitting on the trolley in which it was being transported. The transporter being Veer Bhan, PW was not even examined by the prosecution and no attempt was made to arraign him as an accused in the conspiracy. In the absence of his evidence it cannot be concluded with a sense of positivity that the accusedrespondents were intimately connected in the obtaining or storing of the cement in violation of Clause 4. The plea of the accused respondents that they had obtained a lift from the tractor driver may not be true but it does appear plausible in the absence of relevant prosecution evidence which could otherwise have been led by the prosecution. The adverse interference drawn by the learned trial Judge about Nand Lal having run away from the spot does not necessarily conclude that he had a guilty mind, for a man out of fright at the sight of the police officers would do the same. If the view of the trial Judge in that behalf were to be accepted, respondents Nirmal Kumar and Ram Nath who kept sitting in the trolley could perhaps legitimately by the negative process claim themselves to be innocent. These niceties need not have been gone into, but on broad probabilities of the case, the defence given plausibility due to lack of prosecution evidence. Thus, I am of considered view that the accused respondents were entitled to acquittal. Accordingly, they are acquitted of the charge. In that event the appeal of the State of enhancement of the sentence gets redundant and infructuous. JUDGMENTed accordingly. Fine, if paid, be refunded to the accused respondent.