Punjab-Haryana High Court
Cra No.989-Sb Of 1998 vs The State Of Haryana ---Respondent on 23 February, 2010
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Appeal Nos.989 & 996-SB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
1. CRA No.989-SB of 1998
Ashwani Kumar ---Appellant
Versus
The State of Haryana ---Respondent
2. CRA No.996-SB of 1998
Ramayan ---Appellant
Versus
State of Haryana ---Respondent
Date of Decision:-23.2.2010
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.D.S.Bali, Senior Advocate with Mr.Amandeep Saini,
Advocate for the appellant (in CRA No.989-SB-1998).
Mr.Jaswant Jain, Advocate for the appellant (in CRA
No.996-SB-1998).
Mr.G.S.Chahal, Additional Advocate General, Haryana.
Mehinder Singh Sullar, J. (Oral)
As the common questions of law and facts are involved in the aforementioned two appeals, arising out of the same impugned judgment of conviction dated 11.11.1998 and the order of sentence dated 14.11.1998, separately filed by appellants-convicts Ashwani Kumar and Ramayan, therefore, I propose to dispose of the same by this single judgment, in order to avoid the repetition of the facts.
2. The crux of the prosecution version and evidence, unfolded during the trial, relevant for disposal of the present appeals and emanating from the record, is that on 26.8.1995, a police party headed by PW2 SI Dilbag Singh and consisting of PW1 HC Hans Raj alongwith other police officials, was present near Pushpa Complex, Hisar. When it received a secret information, to the effect Criminal Appeal Nos.989 & 996-SB of 1998 2 that the appellant Ashwani Kumar was selling kerosene, in six cans, containing 180 litres from his Depot in the Kiosk (Khokha) of appellant Ramayan, in black marketing, at the rate of Rs.7/- per litre. If the raid is conducted, they could be apprehended red handed alongwith kerosene. The secret information was reduced into writing in the shape of ruqqa (Ex.PA) and PW2 sent the same to the Police Station for registration of the case, which formed the basis of formal FIR (Ex.PA/1).
3. The case of the prosecution further proceeds that PW1 was deputed as bogus punter in civil dress, while PW Sita Ram was appointed as shadow witness. PW1 was directed to purchase five litres of kerosene from appellants. PW1 followed by PW Sita Ram went to the kiosk of appellant Ramayan. In the wake of signal of PW Sita Ram, police party reached the spot as per planning, where both the appellants were found present. In pursuance of the search, six cans containing kerosene were recovered from the kiosk of appellant Ramayan. PW1 produced the can containing five litres of kerosene, which was handed over to him for the purpose of purchasing the kerosene. The samples of kerosene from the cans produced by PW1 and the remaining cans were separately taken into nips. The sample and the remaining cans containing kerosene were separately sealed with the seal of 'DSB'. The seal after use was given to PW Sita Ram. The currency note of Rs.50/-(Ex.P1), which was given and paid by PW1 to appellant Ramayan, was recovered from his right side pocket. The case property was taken into possession vide recovery memo (Ex.PC) attested by PW1 and PW Sita Ram. PW2 prepared the rough site plan (Ex.PE) of the place of occurrence with correct marginal notes. The case property/cans (Ex.P2 to Ex.P8) were deposited with the MHC in the Police Station on the same day.
4. Levelling a variety of allegations, in all, according to the prosecution that on 26.8.1995, the appellants sold five litres of kerosene to PW1 for a sum of Rs.35/- and, thus, violated the provisions of the Kerosene (Restriction on use and Fixation of Ceiling Price) Order,1993 (hereinafter to be referred as "the relevant Order") and subjected themselves liable for the punishment under Criminal Appeal Nos.989 & 996-SB of 1998 3 section 7 of the Essential Commodities Act, 1955 (for brevity "the Act"). On the basis of aforesaid allegations, the present case was registered against them on accusation of having committed an offence punishable under section 7 of the Act, vide FIR (Ex.PA/1) by the police of Police Station Civil Lines, Hisar, in the manner indicated here-in-above.
5. After the completion of the investigation, the final police report/challan under section 173 Cr.PC was submitted against them, to face their trial for the aforementioned offence.
6. Having completed all the codal formalities, the appellants were charged by the trial (Special) Court, for having committed the offence punishable under section 7 of the Act, vide order dated 10.1.1997. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
7. The prosecution, in order to substantiate the charges framed against the appellants, examined the main Investigating Officer PW2 SI Dilbag Singh, who has stated that on 26.8.1995, he was present near Pushpa Complex, GT Road, Hisar alongwith PW1 HC Hans Raj and other police officials, where he received a secret information to the effect that appellants were selling the kerosene in black marketing in the kiosk of appellant Ramayan. If the raid is conducted, kerosene could be recovered. He sent ruqqa (Ex.PA) to Police Station Civil Lines, Hisar and formal FIR (Ex.PA/1) was registered on its basis by ASI Ramesh Kumar. PW Sita Ram was joined as a witness. PW1, on his direction, wore civil dress. An empty can having capacity of five litres and currency note of Rs.50/- (Ex.P1) was handed over to him. He (PW1) was directed to act as bogus punter and to purchase five litres of kerosene from the accused. Memo Ex.PB was prepared in this respect. It was attested by PW Sita Ram. PW Sita Ram was joined as a witness. According to PW2, PW1 followed by Sita Ram went to the kiosk of the accused. After some time, in the wake of appointed signal, the police party reached there, where the appellants were found present.
8. Attempting to narrate the sequence of events, PW2 has maintained Criminal Appeal Nos.989 & 996-SB of 1998 4 that the cans of kerosene (Ex.P2 to Ex.P8) were recovered. Separate sample was taken in the nip from the can, which was handed over to PW1. Sequelly, other samples from each can were also taken. The samples and the remaining kerosene were separately sealed and taken into possession, vide recovery memo (Ex.PC).
9. PW1 HC Hans Raj, who was also a member of the police party and was deputed as bogus punter/purchaser, has tried to corroborate the statement of PW2, in this relevant connection and deposed that in the wake of secret information, the police party raided the kiosk of appellant Ramayan. PW1, inter- alia, stated that he handed over the currency notes of Rs.50/- to appellant Ramayan and then he gave him five litres of kerosene at the rate of Rs.7/- per litre and returned him Rs.15/-. In pursuance of the signal, police party headed by PW2 reached there and took into possession the kerosene, after following the required formalities, vide recovery memo (Ex.PC).
10. The evidence of PW3 Kewal Singh, Clerk is only to the effect that in the year 1995, District Magistrate had fixed the rate of kerosene in Hisar at Rs.2.80 P per litre, vide order (Ex.PD). PW4 HC Sahab Singh and PW5 Constable Raj Kumar are the formal witnesses, who have only tendered into evidence their affidavits (Ex.PF and Ex.PG) respectively. It will not be out of place to mention here that the prosecution has given up PW Sita Ram, as having been won over by the accused on the police request. The prosecution has also tendered in evidence the report of Director, Forensic Science Laboratory, Haryana, Madhuban (Ex.PH). This is the entire evidence brought on record by the prosecution.
11. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, the appellants denied the prosecution evidence in its entirety and pleaded false implication. Appellant Ramayan has set up the following plea:-
"This is a false case. I am falsely implicated in this case. A Criminal Appeal Nos.989 & 996-SB of 1998 5 day before the occurrence I was in the custody on P.P.Model Town, Hisar and this fact was intimated telegraphically to Hon'ble High Court as well as to S.P.Hisar and on the telegram given by my brother. Hon'ble High Court also issued notice to the police. I am innocent."
12. The appellants, in order to substantiate their defence, examined DW1 Prem Chand, S.S.O. CTO Hisar, who brought the record and stated that as per chapter 21 of Tele Communication Manual, telegrams are destroyed within three months from the date of booking and copy of receipt (form MR 48) is destroyed after one year as per Post and Telegraph Financial Hand Book. According to DW1, summoned record has been destroyed, but he produced the photo copy of the receipt of the telegram (mark-A).
13. Sequelly, DW2 HC Narian Dass stated that there is no entry regarding receipt of telegram in the complaint register of the year 1995. Although, all the telegrams/complaints received in the office are entered in the register, but the complaints and telegrams received at the residence of S.P., which are not sent to the office, are not entered in the register.
14. The trial (Special) Judge, after taking into consideration the evidence on record, convicted and sentenced the appellants to undergo rigorous imprisonment for a period of four years, to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each, for the commission of offence punishable under section 7 of the Act, vide impugned judgment of conviction dated 11.11.1998 and the order of sentence dated 14.11.1998.
15. The appellants did not feel satisfied with the impugned judgment/order and filed the present two separate appeals. That is how, I am seized of the matter.
16. Assailing the impugned judgment/order, at the very outset, the learned counsel for the appellants contended with some amount of vehemence that the prosecution has failed to prove the essential ingredients of section 7 of the Act, with regard to the violation of the relevant Order. The argument is that Criminal Appeal Nos.989 & 996-SB of 1998 6 even PW2 was neither authorized, or competent to search the kiosk and seize the kerosene and only an officer of the Department of Food and Civil Supplies of the Government, not below the rank of Inspector, was competent to search the kiosk of appellant Ramayan and seize the kerosene. Raising a variety of arguments, in all, according to the learned counsel that the appellants cannot be convicted on the basis of statements of police officers, which are otherwise discrepant on material points and such discrepant and unreliable evidence on record is not sufficient to base their conviction, particularly when the material witness Sita Ram was not examined by the prosecution. Thus, they prayed for acceptance of the appeals.
17. Hailing the impugned judgment, on the contrary, the learned State counsel, though admitted, that PW2 was not authorized to search the kiosk of appellant Ramayan and seize the kerosene, but still he urged that the evidence of PW1 and PW2 is reliable and trustworthy and no interference is warranted, in this respect.
18. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the impugned judgment of conviction cannot legally be maintained, therefore, the present appeals deserve to be accepted, for the reasons mentioned here-in-below.
19. It is not a matter of dispute that the appellants were charged by the Special Court, vide order dated 10.1.1997 in the following manner:-
"That on 26.8.1995 in the area of Hisar, you sold 5 litres of kerosene to Hans Raj, HC for a sum of Rs.35/- in excess of control price fixed by the Government and thereby contravened the provision of clause 3 (2) 4 (1)(c) of the Kerosene (Restriction of use and Fixation of Ceiling Price) Order, 1993 punishable under section 7 of the Essential Commodities Act, 1955 and within my cognizance."
20. It means, the appellants were charged for the violation of clauses 3 (2) and 4 (1)(c) of the relevant Order. Clause 3 (2) postulates that "no dealer appointed under the public distribution system or a transporter shall sell, Criminal Appeal Nos.989 & 996-SB of 1998 7 distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for".
21. Sequelly, clause 4(1)(c) posits that "no dealer having stock of kerosene supplied under the public distribution system at the business premises, including the place of storage, shall sell, distribute or supply kerosene at a price higher than that fixed by the Government or Government Oil Company." The word "dealer" has been defined under clause 2(c), to mean a person, firm, association of persons, company, institution, organization or a co-operative society approved by Government or company or State or Central Government or a parallel marketeer and engaged in the business of buying and selling kerosene. Likewise, according to clause 2(j), "public distribution system" means the system of distribution, marketing or selling of kerosene at declared price through a distribution system approved by the Central or State Government.
22. Above being the legal position and evidence on record, now the short and significant question, though important, arises for determination in these appeals is whether the prosecution has been able to prove that the appellants have violated clauses 3 (2) and 4 (1)(c) of the relevant Order or not.
23. Having regard to the rival contentions of the learned counsel for the parties, to my mind, the prosecution has miserably failed to prove all the essential ingredients of the crime in question and did not comply with the mandatory provisions of the relevant Order.
24. The co-joint reading of the relevant provisions would reveal that in order to attract the penal provisions, the prosecution, in this respect, was legally required to prove (i) that the appellant Ashwani Kumar was actually a dealer, appointed under the public distribution system; and (ii) recovered kerosene was supplied to him under the public distribution system which he was stated to have sold to PW1 in the kiosk of appellant Ramayan, at a price higher than that fixed by the Government.
25. As is evident from the record that there is not a whisper in the evidence of PW1 and PW2, in this connection, that either appellant Ashwani Kumar was a dealer appointed by the Government or the kerosene recovered, Criminal Appeal Nos.989 & 996-SB of 1998 8 vide recovery memo (Ex.PC) was actually supplied to him under the public distribution system which they were stated to have sold to PW1. That means, all the essential ingredients of clauses 3(2) and 4(1)(c) of the relevant Order, are totally lacking and completely missing in the instant case. In that eventuality, to me, legally speaking, the appellants cannot possibly be held guilty for the violations of clauses 3 (2) and 4 (1)(c) of the relevant Order.
26. Again, it is a matter of fact that the prosecution claimed that PW2 formed a raiding party, search the kiosk of appellant Ramayan and recovered the cans (Ex.P2 to Ex.P8) containing the kerosene, vide recovery memo (Ex.PC). The argument of the learned counsel for the appellants that PW2 was not authorized/competent to search the kiosk of appellant Ramayan and seize the kerosene, has considerable force.
27. Clause 9 of the relevant Order is as under:-
"9. Power of entry, search and seizure-- (a) An officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorized by such Government and notified by the Central Government or any officer authorized and notified by the Central Government, or any officer not below the rank of Sales Officer of a Government Oil Company authorized by the Government and notified by the Central government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of satisfying himself that this order or any order made thereunder has been complied with:
(i)............................
(ii)enter or search any place with such aid or assistance, as may be necessary; and
(iii)seize and remove with such aid or assistance, as may be necessary, books registers and other records pertaining to kerosene business, along with vehicle, vessel or any other conveyance used for carrying such stock, if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorize the Criminal Appeal Nos.989 & 996-SB of 1998 9 taking of all measures necessary for securing the production of the kerosene at the Office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 to 1955), for their safe custody pending such procedures.
(b) The provisions of Sec.100 of the Code Criminal Procedure, 1973 [2 of 1974] relating to search and seizure shall, so far as may be, apply to searches and seizures under this Order."
Meaning thereby, PW2 was neither an officer of the Department of Food and Civil Supplies nor he was authorized by the State Government to enter, search and seize kerosene, from the kiosk of appellant Ramayan on the fateful day.
28. Again it is not a matter of dispute that it is well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise.
29. Therefore, the legislative intent underlying the relevant Order is clear and implicit that in order to invoke a penal provision, the prosecution was Criminal Appeal Nos.989 & 996-SB of 1998 10 required to prove all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order and to observe the strict compliance of the provisions of clause 9 contained therein, with regard to search and seizure of the property. That being the legal position, it can safely be held that neither all the essential ingredients of clauses 3(2) and 4 (1)(c) of the relevant Order are complete, nor PW2 SI of Police Dilbag Singh was authorized and competent to search and seize the case property, nor he has joined any such authorized person at the time of search and seizure under the relevant Order. Therefore, the entire process of search and seizure was illegal, without jurisdiction, goes to the very root of the case and vitiated the trial in this regard. This grave illegality and material procedural irregularity entail the acquittal of the appellants in this relevant connection.
30. There is another aspect of the matter, which can be viewed from a different angle. The prosecution claimed that the police party headed by PW2 was present in busy locality of Pushpa Complex, GT Road, Hisar, where he (PW2) received a secret information to the effect that the appellants are selling the kerosene in the kiosk of appellant Ramayan, near the water works in Industrial Area. It means, both the places are busy places where independent witnesses were always available, but PW2 did not join any independent witness from the locality, which is a legal requirement of clause 9(b) of the relevant Order. According to the prosecution, one PW Sita Ram was deputed as a shadow witness, who signed the memo (Ex.PB) and recovery memo (Ex.PC). It was further the case of the prosecution that the seal after use was given to PW Sita Ram, but he was not examined in the court by the prosecution. No cogent explanation for non-examination of material witness is forth coming on record, except that the Public Prosecutor has given him up as having been won over by the appellants.
31. The celebrated argument of learned State counsel that the material witness PW Sita Ram was won over by the appellants, so he was not examined, is not only devoid of merit, but misplaced as well and pales into insignificance in this direction. According to Section 145 of the Indian Evidence Act, 1872 , a witness may be cross-examined as to previous statements made by him in Criminal Appeal Nos.989 & 996-SB of 1998 11 writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Likewise, section 154 of the Indian Evidence Act further provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party and nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.
32. Assuming for the sake of argument, PW Sita Ram was won over by the appellants, even then it was incumbent, obligatory and necessary on the part of the prosecution to produce him in Court, so that he could be duly confronted with his earlier statement recorded by the police, to reveal the truth as contemplated under sections 145 and 154 of the Indian Evidence Act and in view of the law laid down by the Division Bench of this Court in case State of Punjab v. Surjit Singh 2008 (1) RCR (Crl.) 266 (P&H) and Single Bench in case Basir Mohammad v. State of Haryana 2008 (3) RCR (Criminal) 244. Hon'ble Apex Court in case Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720 has reiterated that the mere fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused and such evidence of a hostile witness can be relied upon to the extent to which it supports the prosecution version and evidence of such witness cannot be treated as washed off the record.
33. Meaning thereby, the prosecution has withheld the best evidence of PW Sita Ram, who was a shadow witness and has signed the memo (Ex.PB) and recovery memo (Ex.PC) as well and to whom the seal was entrusted after its use by PW2, for the reasons best known to it, who could prove missing link in the prosecution story and authenticate memo (Ex.PB) and recovery memo (Ex.PC). In that eventuality, a legal adverse inference is inevitable against the Criminal Appeal Nos.989 & 996-SB of 1998 12 prosecution in this behalf.
34. Moreover, in the instant case, the sample was taken on 26.8.1995 and the same was sent to Director, FSL on 18.9.1995 after about 23 days. The sample was chemically examined on 27.8.1996 i.e. after more than one year of the occurrence. The delay in this respect remained an unfolded mystery. No cogent evidence is forth coming on record that the sample remained intact on all these stages during the period till it was tested. Thus, it would be seen that the link evidence is missing, which casts doubt on the prosecution version.
35. As is evident from the record that the prosecution is relying only on the statements of two police officers i.e. PW1 HC Hans Raj and PW2 SI Dilbag Singh. No independent corroboration is available on record. There are contradictions in their statements, in regard to non-joining of an independent witness. In his cross-examination, PW1 stated that few persons were requested to join in the investigation, but they had shown their inability, their names and addresses were not noted down and 5/10 persons were asked to join, but PW2 stated that none was requested to join as a witness nor any one offered to join as such. No customer was present when the kerosene was purchased by PW1. According to PW2, a memo of Rs.50/- was prepared, while PW1 has not so stated. Therefore, no implicit reliance can be placed upon the statements of PW1 and PW2, in the absence of any authorization to search and seize the case property, who are police officials, in view of major contradictions in their statements. Hence, it would not be safe to base the conviction of the appellants on such type of contradictory evidence, under the present set of circumstances.
36. In the light of the aforesaid reasons, if the fact that the prosecution has utterly failed to prove all the essential ingredients of clauses 3 (2) and 4(1)
(c), non-compliance of the mandatory provisions of the relevant Order, non- authorization of PW1 culminating into the vitiation of trial, missing of link evidence, non-examination of material witness, inherent contradictions in the statements of official witnesses and totality of other facts and circumstances emanating from the record as discussed here-in-above are put together, then to my mind, conclusion is inescapable and irresistible that the evidence of the Criminal Appeal Nos.989 & 996-SB of 1998 13 prosecution falls short, as is required to prove the criminal charge against the appellants under the Act. Therefore, it is held that the prosecution has miserably failed to bring home guilt to the appellants and they deserve acquittal, in the obtaining circumstances of the case.
37. For the reasons recorded above, the appeals are hereby accepted, the impugned judgment of conviction and order of sentence are set aside and the appellants are acquitted of the charge framed against them. Needless to say, that the compliance and procedural consequences will follow accordingly.
(Mehinder Singh Sullar) Judge 23.2.2010 AS Whether to be referred to reporter? Yes/No