Patna High Court
Akhtar Hussain And Naresh Prasad Thakur vs State Of Bihar on 9 July, 1997
Equivalent citations: 1997(2)BLJR1452
JUDGMENT Loknath Prasad, J.
1. This appeal is directed against the judgment of conviction passed by Sri Shyam Prasad Singh, Special Judge, E.C.Act, Hazaribagh, in Mandu P.S. Case No. 55 (2) 84 through which both the appellants were found guilty under Section 7 of the E.C. Act for violation of Bihar Kerosine Dealers Licensing Order, 1965 and they were sentenced to undergo rigorous imprisonment for two years each and further they were sentenced to pay a fine of Rs. 1000/- each.
2. The prosecution case, in short is that on 15.2.1984 the informant Dineswar Mishra, Supply Inspector of Hazaribagh alongwith Executive Magistrate,Sri A.K. Chatterjee and A.D.S.O. S.N, Mishra were going to Charhi and at about 11 a.m; or so they had seen trekker bearing No. B.H.M. 1597 going towards Charhi and the trekker was apprehended at Charhi Chat, that is on the road, in which 20 tins of Kerosine oil were loaded and the drive of the trekker confessed that other appellant Naresh Thakur and one unknown person loaded the kerosine oil tins on the trekker at Hazaribagh but the name of the shop keeper from whom the kerosine oil were purchased could not be disclosed. It is also the prosecution case that the informant asked the driver to take the trekker to Charhi Police Outpost but the moment the trekker reached the Outpost, the driver and the co-accused escaped away from there. However, the informant in presence of the witnesses seized all the 20 tins of kerosine oil, prepared the seizure list and handed over the same to the police at Charhi outpost and also instituted a case by submitting a written report. On that basis, Mandu P.S. Case No. 55/84 was instituted as against both the appellants and after completing the investigation, chargesheet was submitted as against both the appellants.
3. Both the appellants claimed themselves innocent in the court below and denied to have carried Kerosine oil tins in the trekker as alleged and the only defence they made out in court below was that they were neither dealing in kerosine oil nor they were carrying the seized kerosine oil-in other words, a blank denial of the occurrence. The trial court believed the prosecution story and convicted and sentenced both the appellants in the manner indicated above for violation for the provision of the Kerosine Dealers Licensing Order . Being aggrieved and dissatisfied with the order of conviction, both the appellants preferred this appeal.
4. To prove the case on behalf of the prosecution as many as five witnesses were examined. Out of them, P.W. 1 is Satya Narain Mishra, A.D.S.O. from Hazaribagh who was accompanying in the van alongwith the informant. P.W. 2 is the informant-Supply Inspector himself; whereas P.W. 3 Chaman Singh and P.W. 4 Bhikhu Mahto are witnesses of seizure and another witness of seizure P.W. 4 Shahdeo Singh are tendered.
5. It is the prosecution case that on 15.2.1984 at about 1.30 a.m. or so, the informant detected the trekker B.H.M. 1597 in the Charhi ghati on the way carrying 20 tins of kerosine oil. Naturally P.W. 2 the informant who is the Supply Inspector and a competent officer to make search and seizure under the Bihar Kerosine Dealers Licensing order, 1965 is the most competent witness. According to this witness, he alongwith P.W. 1 A.D.S.O., Hazaribagh and Mr A.K. Chatterjee, Executive Magistrate, Hazaribagh were going on a van and at about 11.30 or so in the Charhighati they detected the trekker bearing No. B.H.M. 1597 and the trekker was stopped and it was inspected and they found 20 tins of kerosine oil and the driver or the owner Naresh Thakur could not produce any document for the oil or any licence for dealing in kerosine oil or any permit. So he asked the driver to take the trekker to Charhi Police Outpost. It is also his evidence that the driver brought the trekker near the Police Outpost but he alongwith Naresh Thakur escaped away. As such all the 20 tins of kerosine oil containing about 340 litres were seized in presence of the witnesses and seizure list as prepared, that is, Ext. 1 and after that the seized kerosine oil were handed over to the police officer of Charhi Outpost, for that production list Ext, 3 was prepared. This witness has also identified the driver and the owner who was carrying the kerosine oil, that is the appellant Naresh Thakur in the court. Similarly, P.W. 1 who is ADSO of Hazaribagh and he was accompanying the informant consistently supported P.W. 1 and from his evidence it is also clear that in the trekker the accused-driver was carrying 20 tins of kerosine oil and he also disclosed that Naresh Thakur and one another, the other appellant, loaded the kerosine oil this at Hazaribagh and they did not produce any document or permit or licence. This witness has also put his signature in the seizure list, that is, Ext. 1 which clearly indicate that he was present all along. Furthermore, at that very time, the informant submitted the written report at Charhi OP., that is, Ext. 2 which indicates that P.W. 1 Executive Magistrate, A.K.Chatterjee was also present at the time of search, seizure and detection.
6. Both these witnesses were definitely responsible witnesses and admittedly there is no prior animosity and both the appellants had also not specifically denied about the recovery of kerosine oil from the trekker and they simply denied their participation. Furthermore, seizure list witnesses, that is. P.W. 3 Chaman Singh and P.W. 5 Shahdeo Singh also stated that they put their signature in the seizure list and has also admitted about the recovery of 20 tins of kerosine oil from a trekker.So this fact is well proved that on 15.2.1984, main appellant Naresh Thakur was carrying 20 tins of kerosine oil in a trekker and the driver, that is, the other appellant, has abetted in commission of this offence by carrying the same and his complecity is definitely there that immediately after the apprenension he had escaped away. Admittedly the appellants were neither having any permit or any document for carrying such huge quantity of oil which is controlled article and they were not having any licence to deal in kerosine oil.
7. Admittedly the occurrence took place in February 1984 and admittedly Bihar Kerosine Dealers Licensing Order, 1965 was in force, which was issued under Section 3 of the E.C. Act, 1955. Under Section 3 of the said order , no person shall carry on business of kerosine oil except in accordance with the terms and conditions of the licence and Clause 7 provides that no person other than a licencee shall keep or store in any premises kerosine oil exceeding 37 litres, that is, two tins unless he has obtained a written permit from the District Magistrate or Sub-divisional Magistrate or other authorities. In the instant case, admittedly the appellants had not obtained any permit / permission from the authority concerned nor they not any licence to deal in kerosine oil. In that view of the matter they had definitely violated Clause 3 and 7 of Bihar kerosine Dealers Licensing Order, 1965 and thus punishable under Section 7 of the Act.
8. However, during the courses of argument learned Counsel for the appellants submitted that in this case the prosecution failed to examine the I.O. and, thus, defence were prejudiced and so the entire prosecution case on this point alone is bound to fail. No doubt the I.O. could not be examined bui admittedly the recovery is well proved and the appellants had not challenged the place of occurrence and further practically there is no contradiction in the evidence of the witnesses. In that view of the matter, non-examination of the I.O. had not caused any prejudice to the appellants.
9. It was further submitted that the entire trial is vitiated for the reason that necessary compliance of the provision of Section 251, Cr PC had not been made by the trial court and only the trial court recorded that substance of accusation of offence had been explained to the appellants and in all fairness, the trial court should have brought to the notice of the appellants the various provisions of the Control Order which they had violated and in absence of that, they were prejudiced in putting up their defence in the trial court. In support of this contention, reliance was placed in a Single Judge judgment of this Court reported in 1989 PLJR 172, Surendra Kumar Yadav v. State of Bihar. Surendra Kumar Yadav's case (supra) was actually a quashing matter under Section 487 Cr.P.C. and only a casual observation was made regarding explaining substance of accusation and , in fact, only for an appreciation that no case is made out, such casual observations were made. In that view of the matter, Surendra Kumar Yadav (supra) is not of any help the appellants and it cannot be said that by not mentioning the details of the provisions which ihe appellants violated at the time of explaining substance of accusation, the entire trail is vitiated.
10. The learned Counsel for the appellants further submitted that the entire trial is bad in law for the reason that the trial court has not discharged his duty while recording the statement of the appellants under Section 313, Cr. P.C. and in support of this contention has relied upon a decision of the Supreme Court , Parichhat and other v. States of M.P. On perusal of the statement recorded by the trial Court under Section 313, Cr PC it can be said that provision of Section 313, Cr PC has been properly complied and the trial court has put all necessary questions required under the law to the appellants. In that view of the matter, it cannot be said that the trial courts has erred in not bringing to the notice of the appellants the important evidence which has come during the trial. In that view of the matter, there is no merit in this submission.
11. So on a careful consideration of the entire evidence on the record, I am of the opinion that the prosecution has been able to prove that both the appellants were carrying 20 tins of kerosine oil without any authority, permit or licence and, thus, violated the provision of Kerosine Dealers Licensing Order, 1965.
12. So far the sentence is concerned, the trial court has awarded two years rigorous imprisonment to both the appellants under Section 7 of the E.C. Act and also imposed a fine of Rs. 1000/- each. So far appellant No. 2 Naresh Prasad. Thakur is concerned, he is the main accused because the purchased the kerosine oil and was carrying the same in the trekker. So in the end of justice, I modify the sentence so far appellant No. 2 Naresh Kumar Thakur is concerned to six months rigorous imprisonment. Appellant No. 1 is merely a driver and he was carrying the kerosine oil on hire charges so at best he abetted the offence. In that view of the matter, he is sentenced to rigorous imprisonment for three months under Section 7 of E.C.Act and further both the appellants are also directed to pay a fine of Rs. 500/- each, in default to undergo rigorous imprisonment for one month. The bail bonds of the appellants are hereby cancelled and they are directed to surrender before the court below for undergoing the remaining part of imprisonment, failing which the trial court will take steps for their apprehension. With this modification in sentence, this appeal is dismissed.