Allahabad High Court
Jeet Ram Gupta And Others vs State Of U.P. on 2 August, 2019
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 18.7.2019 Delivered on: 2.8.2019 Court No. - 28 Case :- CRIMINAL REVISION No. - 314 of 1989 Revisionist :- Jeet Ram Gupta And Others Opposite Party :- State Of U.P. Counsel for Revisionist :- Satish Trivedi,A.K.Shukla,Roshan Khan,Vimlendu Tripathi Counsel for Opposite Party :- A.G.A. Hon'ble Rajeev Misra,J.
1. This criminal revision has been filed challenging the order dated 28.2.1989, passed by VIIth Additional District Judge, Bareilly in Criminal Appeal No. 383 of 1985 (Jeet Ram and 2 Others Vs. State of U.P.) whereby, the aforesaid appeal has been dismissed. The revisionists have also challenged the judgement and order dated 3.12.1985, passed by Judicial Magistrate (E.C. Act) Bareilly in Criminal Case No. 448 of 1981 (State Vs. Jeet Ram and 2 Others) under section 3/7 Essential Commodities Act and Sections 408, 468 and 471 IPC, P.S. Nawabganj, District Bareilly, whereby the accused/revisionists have been convicted under section 3/7 of Essential Commodities Act and consequently sentenced to six months rigorous imprisonment along with fine of Rs. 1000/- each. In default, each of the accused/revisionists are to further undergo three months simple imprisonment.
2. I have heard Mr. Vimlendu Tripathi, learned counsel for the revisionist nos. 2 and 3 and learned A.G.A. representing the opposite party.
3. It transpires from the record that the revisionist no.1 Jeet Ram Gupta is the owner of a Petrol Pump known by the name of M/s Naveen Feeling Station, Nawabganj, District-Bareilly. The Distribution of diesel oil by the Petrol Pump is to be done as per the provisions of U.P. High Speed Diesel Oil (Maintenance of Supply and Distribution) Order 1980. The revisionist No.2 Krishna Kumar is an employee of the revisionist no.1 and use to make enteries in the sale register. The revisionist no.3 Rameshwar Dayal is an employee of the revisionist no.1. He use to make measurements of diesel oil and further undertake the cleaning work at the outlet.
4. The State Government issued a government order no. G.I. 142/29 dated 8.8.1979, whereby the method and methodology to be followed in distribution of diesel oil was provided. The essence of the directions contained in the aforesaid Government Order was that distribution has to be made by the dealer only to the quota card holders and not to any other person. The quantity to be distributed by the dealer was also quantified.
5. In order to make the provisions of G.O. dated 8.8.1979 more effective, orders were issued to the pump dealers that immediately upon receipt of diesel from depot, information shall be given to Tehsil Authorities, who shall in turn arrange for the distribution of diesel. Diesel was to be distributed by the dealer in supervision of Tehsil Authorities. A check register was to be maintained containing the names and details of card holders including the quantity of diesel to be distributed to each of the card holder. Upon sale, the pump dealer was to enter the same in cash memo and thereafter, make an entry to that effect in sale register.
6. On 28.1.1980, Jeet Ram owner of M/s Naveen Filling Station, Nawabganj, District Bareilly, informed Suresh Narain Saxena (P.W.2) that 10,000 liters of diesel have arrived at the petrol pump, and therefore, arrangements be made regarding distribution of same. After making an entry of the aforesaid in the stock register, the net amount of diesel available at the petrol pump was 11023 liters (i.e. 1023 liters balance + 10,000 fresh arrival= 11023 liters).
7. In response to the request made by revisionist no.1 Jeet Ram gupta, P.W. 2 Suresh Narain Saxena, Nayab Tehsildar entrusted P.W.3 Harnam Singh Ameen, Om Prakash Ameen and Allan Khan Ameen for distribution of diesel at the petrol pump of revisionist no.1. The check register was completed by P.W.3 Harnam Singh on 25.1.1980. Entries were made in the sale register by son of revisionist no.1 Jeet Ram Gupta, namely Krishna Kumar. Thereafter, on 29.1.1980, enteries were made in the check register by Om Prakash Ameen. As such, from 28.1.1980 to 30.1.1980, 9680 Liters of diesel was distributed. Consequently, a balance of 1343 liters of diesel should have been at the petrol pump. On 30.1.1980, the revisionist no.1 Jeet Ram Gupta declared the petrol pump as dry and information to this effect was communicated by P.W.3 Harnam Singh Ameen to P.W.2 Suresh Narain Saxena, Naib Tehsildar.
8. Upon receipt of the aforesaid information, P.W.2 Suresh Narain Saxena came to the petrol pump of the revisionist and examined the sale register (Ext.1). He found that in respect of card no. 157, an entry has been made on 28.1.1980, regarding sale of 1083 liters. Similarly, at Serial No.41 sale of 70 liters, 25 liters and 25 liters of diesel has been shown. These entries occurring in the sale register were marked as Ext-2, Ext-3 and Ext-4 and are related to card no. 157, issued to Santosh Singh, Card No. 1083 issued to Anokhe Lal, and Card No. 41 issued to Nanhe Lal. However in the check register (Ext-5) there is no entry in respect of card no. 157 and 1083 regarding distribution of diesel. Whereas, in the check register, 10 liters of diesel has been shown to be distributed to the card holder no. 41. In the sale register (Ext-1) an entry has been made to the effect that on 28.1.1980, 25 liters of diesel has been given to card holder no.41. This entry was marked as Ext-4. In respect of card no. 15, held by Santosh Singh (Ext-6), Card no. 1083 held by Anokhe Lal (Ext-7), there is no entry dated 28.1.1980, regarding distribution of 70 liters and 25 liters of diesel to them. However, in respect of Card No. 41, belonging to Nanhe Lal (Ext-8), there is an entry dated 28.1.1980 with regard to distribution of 10 liters of diesel.
9. Upon evaluation of sale register (Ext-1), Check Register (Ext-5) and card Nos. 157, 1083 and 41, P.W. 2 Suresh Narain Saxena, prima facie found various irregularities with regard to distribution of diesel oil. He further found that diesel was distributed to Jet Ram, Krishna Kumar and Rameshwar Dayal, who do not even have the requisite card with them. On the aforesaid factual premise, P.W.2 Suresh Narain Saxena submitted a Report at P.S. Nawabganj at 10:00 pm on 30.1.1980. The aforesaid report was entered in the G.D. True copy of extract of G.D. was marked as Ext-ka-13. Thereafter, the F.I.R. dated 30.1.1980 was registered (Ext-Ka-12).
10. The Police upon completion of statutory investigation of aforesaid case crime number, submitted a charge sheet under section 3/7 Essential Commodities Act and Sections 408, 468, 471 IPC against the revisionist. P.W. 5 Raj Bahadur Singh was the Investigating Officer. Cognizance was taken upon the same by Court concerned. Consequently, Criminal Case No. 448 of 1981 (State Vs. Jeet Ram and two others) under section 3/7 Essential Commodities Act and Sections 408, 468, 471 IPC, P.S. Nawabganj, District Bareilly came into existence.
11. It is not clear from the judgements of the Courts below as to what charges were framed. The prosecution in order to bring home the charge, alleged against the accused revisionist, adduced the following witnesses:
P.W.1 B.S. Bisth, Senior Supply Inspector P.W.2 Suresh Narain Saxena, Naib Tehsildar P.W.3 Harnam Singh Ameen P.W.4 Bake Lal P.W.5 S.I. Raj Bahadur Singh
12. Apart from relying upon the testimony of aforesaid witnesses, the prosecution relied upon documentary evidence". It may be pointed here that original record is not available and therefore, nothing can be said about the testimony of prosecution witnesses.
13. After prosecution evidence was over, all the adverse material and circumstances were disclosed to the accused. However, in the absence of original record, the actual stand of the accused revisionist cannot be ascertained.
14. Trial Court upon consideration of the material on record framed the following questions for determination:- Whether on 30.1.1980, the decision of revisionist no.1 Jeet Lal Gupta to declare the diesel pump as dry, is valid even when 1343 liters of diesel was available in stock. Whether the alleged sail of 70 liters of diesel to Santosh Singh, 25 liters of diesel to Anokhe Lal and 25 liters of diesel to Nanhe Lal on 28.1.1980 is forged sale. Whether no distribution of diesel was made in favour of Santosh Singh (70 liters) and Anokhe Lal (25 liters) on 28.1.1980. Whether on 28.1.1980, only 10 liters of diesel was distributed to Nanhe Lal. Whether the accused revisionist have violated the provisions of Clause-8 of U.P. High Speed Diesel Oil (Maintenance of Supply and Distribution) Order 1980.
15. It would be appropriate to reproduce Clause-8 of U.P. High Speed Diesel Oil (Maintenance of Supply and Distribution) Order 1980, the same is as under:
"Clause 8, Regulation of sale and supplied of High Speed Diesel Oil" (1) Every dealer shall display at a conspicuous place at his business premises (I) his working hours and (ii) a stock-cum- price board showing the opening balance of high Speed Diesel Oil of the day and the rate per litre.
(2) No dealer having the requisite stock shall refuse to sell High Speed Diesel Oil to a person who holds a Diesel Ration Card or a permit on any day during working hours.
(3) Every dealer shall maintain a true and correct account of all transactions of the supply of High Speed Diesel Oil to any person and submit statement thereof every week to the District Supply Officer.
(4) No dealer shall act in a manner prejudicial to the maintenance of supplies of High Speed Diesel oil in Uttar Pradesh.
(5) Every dealer shall maintain a daily sale register showing the name of the purchaser, member of diesel ration card or permit and the quantity sold.
(6) Every dealer shall comply with the general or special direction not inconsistent with this order that may be given to him in writing by the State Government or the Commissioner, Food and Civil Supplies for the purpose of giving effect to the provisions of this order and any contravention of such directions shall be deemed to be a contravention of this order."
16. Trial Court upon evaluation of evidence of P.W.2 Suresh Narain Saxena and oral testimony of D.W.1, concluded that the accused revisionists are guilty of having committed an offence punishable under section 3 read with section 7 of Essential Commodities Act. Accordingly, judicial Magistrate, Economic Offences, Bareilly vide judgement and order dated 3.12.1985 convicted the accused revisionist under section 3/7 of Essential Commodities Act only and consequently sentenced to six months rigorous imprisonment along with fine of Rs. 1000/- each. In default, each of the accused was to further undergo three months simple imprisonment.
17. Feeling aggrieved by judgement and order dated 3.12.1985, accused revisionist filed appeal before the Sessions Judge, Bareilly. Same was registered as Criminal Appeal No. 448 of 1981 (State Vs. Jeet Ram and 2 Others). The same was dismissed by VIIth Additional Sessions Judge, Bareilly vide judgement and order dated 28.2.1989.
18. Thus aggrieved by the judgement and order dated 28.2.1989, passed by the Appellate Court i.e. VIIth Additional Sessions Judge, Bareilly and the judgement and order dated 3.12.1985, passed by trial Court i.e. Judicial Magistrate, Economic Offences, Bareilly, the accused-revisionists have now come to this Court by means of present criminal revision.
19. Instant criminal revision came up for admission on 2.3.1989 and the Court passed the following order:
"Admit.
Issue notice.
Meanwhile, realization of fine shall remain stayed till further orders of this Court.
Let appellants Jeet Ram Gupta, Krishna Kumar and Rameshwar Dayal convicted in criminal Case No. 448 of 1981, be released on bail on their furnishing a personal bond of Rs. 5000/- each with two sureties each in the like amount to the satisfaction of Judicial Magistrate (Economic Offences) Bareilly."
20. Subsequently, on 12.4.2004, the Court passed an order whereby, a report was called for from the CJM, Bareilly regarding the death of revisionist No.1 Jeet Ram Gupta.
21. It further transpires that no specific order was passed to summon the record of the Court below. However, an order came to be passed on 25.8.2014 by this Court to summon the lower Court record. In response to the aforesaid, the C.J.M Bareilly, has submitted the report dated 21.10.2014, stating therein that Revisionist No.1 Jeet Ram Gupta had died on 26.1.2014. In view of the above, the present criminal revision stands abated in respect of the revisionist no.1 Jeet Ram Gupta. Accordingly, the present criminal revision on behalf of revisionist no.1 Jeet Ram Gupta stands dismissed as abated.
22. The incharge record keeper, record room Bareilly has submitted the report dated 13.10.2014 stating therein that the record of Criminal Appeal No. 383 of 1985 (Jeet Ram Vs. State) P.S. Nawabganj, District Bareilly, decided on 28.2.1989 has been destroyed on 31.8.1994. Similarly, the Additional District and Sessions Judge, Court No. 4, Bareilly, Incharge Officer, record room (Criminal), Bareilly has submitted the report dated 22.9.2014, stating therein that the record of criminal case No. 448 of 1981 (State Vs. Jeet Ram and others) P.S. Nawabganj, District Bareilly decided on 3.12.1985 has been destroyed on 3.2.2006. Thus, it is an established fact that the original records pertaining to the trial court as well as appellate Court have been destroyed.
23. Mr. Vimlendu Tripathi, learned counsel for the revisionist has submitted that since the origianal record has been destroyed and by no process the records can be reconstructed as the matter is very old, the revisionists nos. 2 and 3 are liable to be acquitted. On the merits of the revision, he submits that the trial court has not recorded any finding as to how the revisionists have contravened the provisions of U.P. High Speed Diesel Oil (Maintenance of Supply and Distribution) Order 1981 or conditions of licence have been violated. He further submits that trial court has convicted the revisionists under Section 3/7 of Essential Commodities Act which is illegal. The trial Court ought to have convicted the revisionist specifically either under section 3/7 (1) (a) or 3/7 (1)(b). He has invited the attention of the Court to the judgement rendered by a learned Single Judge in the case of Kanhaiya Lal Gupta Vs. State of U.P. reported in 1990 (27) ALLCC 584 and has referred to paragraph 8 of the judgement. For ready reference paragraph 8 is quoted herein below:-
"8. Then the question arises whether the appellant should have been convicted with offence punishable under sub-clause (i) of Clause (a) of Sec. 7 (i) or under sub-clause (ii) of the Clause (a) of sub-section (1) of Sec. 7 of the Essential Commodities Act. The learned special judge did not pay attention to that aspect of the case. He simply convicted the appellant with offence under Sec. 3/7 of the Essential Commodities Act. It should not be overlooked that sub-clause (i) prescribes punishment which may extent to one year and fine. It does not prescribe minimum sentence. Sub-clause (ii) prescribes imprisonment- for a term which should not be less than three months but which may extend to seven years and fine. Sub-clause (i) makes contravention of an order made with reference to clause (b) or clause (i) of sub-sec. (2) of Sec. 3 punishable, sub-clause (ii) makes contravention of any other order made under Sec. 3 punishable."
It is thus urged that this Court will have to necessarily decide the question whether the conviction of the revisionist shall be under section 3/7 (1) (a) or 3/7 (1)(b) of Essential Commodities Act as the same relates to jurisdiction of the Court. To buttress the said submission it is next submitted that question of jurisdiction goes to the root of the matter and therefore, the same can be raised at any stage. Even otherwise, since the Courts below have committed a jurisdictional error, the same is liable to be rectified by this Court in exercise of its revisional jurisdication.
24. In support of his submission that as the record of the Courts below have been weeded out and there being no possibility of its being reconstructed, the revisionist nos. 2 and 3 be acquitted of the charges found proved by the Courts below. In support of the aforesaid submission, reliance has been placed upon:
1) Akhlesh Chandra Vs. State of U.P. 2007 (10) JIC 203
2) Munni Lal Vs. State of U.P 2000 (41) ACC 1003
3) Angnu Vs. State of U.P. 1999 (39) ACC 536
4) Dukhl and Others Vs. State of U.P. 1999 (2) JIC 293
5) Latoori @ Khem Karan Vs. State of U.P. 1999 (38) ACC 756
6) Rama Kant Singh Vs. State of U.P. 1998 (2) JIC 122
25. It is then submitted that revisionist no.1 Jeet Lal Gupta was the original licensee/dealer. The revisionist no.2 Krishna Kumar is his son and occasionally used to work in the office of the firm M/s Naveen Filling Station, Nawabganj, District Bareilly. Similarly, revisionist no.3 Rameshwar Dayal is a Class-IV employee entrusted with the job of making measurements of diesel to be distributed and cleaning work. He, thus submits that the revisionist nos. 2 and 3 cannot be held to be vicariously liable for the alleged illegality. The violation of the Essential Commodities Act or the Distribution Order of 1980 is personal to the revisionist no.1 who is already dead.
26. Having heard the learned counsel for the parties, I am of the view that since the issue raised by learned counsel for the revisionist on the merits of the judgements passed by the Court below, cannot be looked into in the absence of original records. Therefore, no useful purpose shall be served even by remanding the matter to the trial Court for decision afresh. Consequently, this Court has no option but to allow the present criminal revision.
27. In view of the discussion made herein above, the revision succeeds and is allowed. The impugned judgement and orders dated 28.2.1989, passed by VIIth Additional District Judge, Bareilly and 3.12.1985, passed by Judicial Magistrate (E.C. Act) Bareilly, insofar as they relate to revisionist nos. 2 Krishna Kumar and revisionist no. 3 Rameshwar Dayal, are hereby set aside. The revisionist nos. 2 and 3 are on bail. Their bail bonds are cancelled and sureties discharged.
Order Date :- 2.8.2019 Arshad