Punjab-Haryana High Court
Kala Devi vs State Of Haryana on 20 January, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 655-SB of 1998
Date of decision: January 20, 2010
Kala Devi
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Jaivir Yadav, Advocate for the appellant.
Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent.
A.N. Jindal, J
Kala Devi accused-appellant (herein referred as 'the accused')
was prosecuted for the offence under Section 7 of the Essential
Commodities Act, 1955 (herein referred as 'the Act') for violation of the
provisions of Rule 7 (d) of the Liquified Petroleum Gas (Regulation of
Supply and Distribution) Order, 1993 i.e. for charging excess of the price
fixed for the cylinder. Consequently, vide judgment dated 12.8.1998 passed
by the learned Special Judge, Narnaul, convicted and sentenced her to
undergo rigorous imprisonment for four years and to pay fine of Rs.2000/-.
The accused was running a gas agency in the name and style of
M/s V.S. Gas Agency, Mahendergarh, of which she was the proprietor.
Several complaints were filed against her by the people of the area for
charging more money from the connection holders for providing D.B.C. and
for issuance of connection in the rural area. Captain Mahabir Singh one of
the complainants resident of village Shyampura, vide his complaint Ex.PC
leveled allegations that the proprietor of the said agency charged Rs.900/-
on account of security of the LPG cylinders, Rs.50/- as charges of regulator,
Rs.215/- as refill charges and Rs.330/- extra. However, no receipt was
issued for the said Rs.330/- in his favour. He further disclosed in his
complaint that on his questioning he was informed that the amount was
charged because his connection related to the rural area. On receipt of the
said complaint Ex.PC, Deputy Commissioner, Mahendergarh sent the same
to Sub Divisional Officer (C) Mahendergarh vide letter No.745-complaint
Criminal Appeal No. 655-SB of 1998 -2-
***
dated 28.5.1995. Sub Divisional Officer (C) Mahendergarh further sent the same along with complaint to Tehsildar, Mahendergarh for enquiry and report vide letter No.3443/ST dated 2.6.1995 which is Ex.PA. Tehsildar, Mahendergarh held enquiry and submitted his report against the Gas Agency and further concluded that the proprietor of M/s V.S. Gas Agency, Mahendergarh while violating Rule 7 (d) of Liquified Gas Cylinders Rules, enacted under Section 3 of the Act has committed the offence punishable under Section 7 of the Act and he recommended the registration of the case against the proprietor of the gas agency. Thereafter, Deputy Commissioner, Narnaul, sent letter No.2655/complaint dated 13.11.1995 (Ex.PA/1) to D.F.S.C. Narnaul for necessary action and D.F.S.C. Narnaul vide letter No.95/6481 dated 22.11.1995 (Ex.PB) recommended for registration of the case against M/s V.S. Gas Agency. On the basis of the letter Ex.PB, formal FIR Ex.PB/1 was registered against the accused. The case was investigated and ultimately challan was presented against the accused.
On finding prima facie case against her, she was charged under Section 7 of the Act to which she pleaded not guilty and claimed trial.
In order to substantiate the charge, the prosecution examined Jaidev Tehsildar (PW1), Ram Kishan Mehra District Food & Supplies Officer, Bhiwani (PW2), Mahabir Singh (PW3), ASI Mahabir Singh (PW4) and Niranjan Lal (PW5).
When examined under Section 313 Cr.P.C. she denied all the incriminating circumstances and pleaded her false implication in the case. In defence, she examined Inderjit Singh (DW1) Ahlmad of the court of Sub Divisional Judicial Magistrate, Mahendergarh to prove the certified copy of the FIR No.283 dated 14.9.1996 (Ex.DB) registered against the complainant Mahabir Singh in Police Station, Mahendergarh.
On scrutiny of the evidence, the court while holding that the accused had committed the violation of the rule 7 (d) of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 because of charging Rs.330/- in excess from the complainant for two L.P.G. Filled gas cylinders and one pressure regulator by the gas agency of the accused, convicted and sentenced her accordingly.
Arguments heard. Record perused.
Criminal Appeal No. 655-SB of 1998 -3-*** The prime question to be decided in the present case is whether the accused charged the excess amount than prescribed for sale of liquified petroleum gas and thereby committed violation of the Rule 7 (d) of the Act.
Before proceeding to determine whether any violation of the rule has been made, I need to reproduce the relevant rule 7 (d) as under :-
"7. Display of stock and price of liquified petroleum gas under public distribution system :-
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) No distributor appointed under the public distribution system shall sell liquified petroleum gas at a price higher than that fixed by the Government Oil Company, nor shall without prior written permission of the concerned Government Oil Company, refuse to make home delivery at the address of the consumer whose name and address is registered with the distributor."
The rule consists of two parts : (i) the distributor shall not sell the liquified petroleum gas at a price higher than that fixed by the Government Oil Company; and (ii) he will not also refuse to make home delivery of the gas cylinder at the address of the consumer whose name and address is registered with the distributor.
Learned Additional Advocate General, Haryana has fairly conceded that it is not a case which may be covered by second part of the rule but he has strenuously contended that the accused charged Rs.1496/- against the prescribed rate of Rs.1166/- for issuing gas connection and the cylinder, therefore, violation of Rule 7 (d) is attracted.
Now we are to see as to "whether the prosecution has been able to prove the violation of the Rule 7(d) in the present case?"
The two necessary ingredients for completion of the offence are as under :-
i) What was the rate prescribed by the competent authority for sale or distribution of the commodity.Criminal Appeal No. 655-SB of 1998 -4-
***
ii) At what the commodity was sold.
Now in order to make out if the aforesaid two ingredients stand established, I need to probe the complaint. In the complaint itself, the complainant has not stated if the amount of Rs.330/- was charged by the accused on account of price of gas cylinder. The court while sitting to decide about it has to go back to see the complaint and the charge sheet as the case may be which is treated as information about the offence whichhe has committed. While going further, Jaidev Tehsildar (PW1) held the enquiry into the complaint and submitted the enquiry report on the basis of which FIR was registered. Certainly, the enquiry report neither can be considered as evidence nor the proof of the allegations. The enquiry report in such cases is taken by authorities concerned only to satisfy itself that if prima facie offence has been committed by the accused and on such satisfaction the case is registered, then such registration of the case is followed by investigation. As such, enquiry report cannot be made the basis of conviction. Now to prove the offence, the evidence so brought by the prosecution on record is to be seen and to decide the case on the basis of the said evidence led by the prosecution independently. PW-2 Ram Kishan Mehra, District Food & Supplies Officer is a witness for writing letter Ex.PB to the Superintendent of Police, Narnaul for registration of the case. He has no where stated that as to what was the price of the connection or the cylinder and what was charged by the accused for the said connection and cylinder. ASI Mahabir Singh (PW4) had recorded the FIR Ex.PB/1. He is neither the Investigating Officer nor a witness to prove any other fact. SI Niranjan Lal (PW5) the Investigating Officer has not proved any document in order to prove the price of the gas cylinder and the connection at the relevant time. Now I am left with the testimony of Mahabir Singh complainant. He in his statement has testified that on 3.11.1995, he went to the agency of the accused in connection with taking of the gas connection but he was directed to collect some relevant papers. After facing a long harassment, when he went to the gas agency on 26.10.1995 and met younger son of the accused who charged Rs.1496/- and issued receipt only for Rs.1166/- against which he was given two cylinders by the son of the accused. However, he was neither given the regulator though payment of Criminal Appeal No. 655-SB of 1998 -5- *** regulator was also received by him and it was given to him on 22.11.1995. During cross examination he was confronted with his affidavit Ex.DA where he admitted the execution of this affidavit, the relevant part of which is reproduced as under :-
"I, Mahabir Singh son of Sabbal Singh resident of village Shampura do hereby solemnly affirm that I had filed the complaint due to some misunderstanding and the statement I had made about Rs.330/- was not correct. Earlier I had not received the receipt of Rs.330/- which I have now received.
Earlier I was in misunderstanding, but now this
misunderstanding has been removed. Now I have no
complaint against the accused."
Thus, such a witness who earlier lodged the complaint alleging particularly that the amount was charged in excess than what was prescribed for the gas cylinder is stating that he had filed the complaint in some misunderstanding could not be believed.
It may be observed that if we take the allegations as correct on the face of it, then the said amount was not received by the proprietor of the gas agency. There is nothing in the evidence if son of the accused ever indulged in the business or was in-charge of the business much less an agent employee or attorney of the proprietor. Any amount if received by the son of the accused, the latter cannot be held responsible for the same. There is nothing in evidence that her son received this amount at her instance.
The other glaring argument which goes in favour of the accused and mashes the case of the prosecution from its base is that the prosecution in order to prove that the amount of Rs.330/- was charged by the accused in excess of the price prescribed for the cylinder was required to examine any witness or prove any document which may reveal the price of the gas cylinder and connection. It has come on record that the accused charged Rs.1496/- i.e. Rs.900/- on account of security of the L.P.G. cylinders; Rs.50/- for regulator; Rs.215/- as re-filling charges; and Rs.330/- extra. The record does not reveal whether Rs.330/- were charged for supply of LPG Criminal Appeal No. 655-SB of 1998 -6- *** cylinders. The complainant has no where explained if this amount of Rs.330/- was charged in excess of the price of the cylinder. Neither any official of the Government Oil Company nor any officer from the Food & Supplies Department was examined to explain as to what was the actual price of the gas cylinder to be supplied to the consumers. In the absence of such evidence, it would be difficult to say that Rs.330/- were charged as an excess price of the gas cylinders particularly when it is not the specific case of the prosecution that only gas cylinder were sold. But, according to it, the accused sold the connection which consists of gas cylinder, regulator, re- filling charges etc. Learned Additional Advocate General, Haryana has given much stress on the receipt Ex.PG vide which Rs.330/- were admitted to have been accepted by the accused. Needless to say that the said receipt was not the part of the investigation nor it was put to the accused during his statement recorded under Section 313 Cr.P.C. As such, this sort of evidence which has never been put to the accused cannot be taken as incriminating circumstance to be used against her. Even otherwise, Ex.PG appears to have been issued by the accused under mis-conception of compromise, but actually it is not a receipt but it is in the shape of a writing for compromise. The original receipt has not come on record which could prove the payment of Rs.330/- by the complainant to the son of the accused much less the accused. As such, no definite evidence has come to the fore to prove that Rs.330/- were paid extra by the complainant.
These aspects of the case were not taken into consideration by the trial court while holding the accused guilty of the offence for which she was charged, as such, interference at my end has become inevitable.
For the foregoing reasons, I accept the appeal, set aside the impugned judgment, acquit the accused of the charges framed against her and direct that she be set at liberty forthwith. Bail bond and surety bond furnished by her stand discharged. Fine, if any deposited by her, be refunded.
January 20, 2010 (A.N. Jindal) deepak Judge