Punjab-Haryana High Court
Ghansham Dass vs Stof Haryana on 10 December, 2014
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA No.1048-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.1048-SB of 2001
Date of Decision : 10.12.2014
Ghansham Dass
.......Appellant
Versus
State of Haryana
.......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Ajay Chauhan, Advocate,
for the appellant.
Mr. Karan Sharma, AAG, Haryana.
****
JITENDRA CHAUHAN, J.
1. The present appeal on behalf of appellant-Ghansham Dass, is directed against the judgment and order dated 29.08.2001/01.09.2001 (hereinafter referred to as 'impugned judgment') passed by the learned Special Judge, Panipat (hereinafter referred to as 'trial Court'), whereby, he has been convicted for the commission of offence punishable under Section 7 of the Essential Commodities Act (for short, 'the Act') and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, or in default of payment of ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 2 fine, to further undergo rigorous imprisonment for a period of one year.
2. Brief facts of the case in hand, as recorded in the opening para of the impugned judgment, are reproduced as under:-
"The accused has faced trial in this court under Section 7 of the Essential Commodities Act, 1955, on the broad allegations that on or about 6.4.1993 within the area of Panipat, his depot was raided and checked by Gauri Shankar, Inspector Food and Supplies as well as other officials including of Police department and found that there was no display of rate and rate list board and that kerosene oil was found 210 Ltrs. less than the quantity as per record which should have been 1410 Ltrs. but it was 1200 Ltrs. and thus he contravened the provisions of Haryana Commodities Price Marking and Display Order 1976 and further that his measurement of five Ltrs. was damaged by adding cement in it and it used to measure less weight and thus he was selling less kerosene oil by way of this defective measurement and thereby contravened the ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 3 provisions of Prevention of Hoarding and Maintenance of Quality Order 1977 and further that he had sold kerosene oil in black i.e. at the excessive price by charging Rs.16/- per five Ltrs. kerosene oil instead of prescribed rate of 14.10 Paise for five Ltrs. kerosene oil and thus he also contravened the provisions of Haryana Commodities Price Marking and Display Order 1976.
2. The allegations of the prosecution against the accused are that being a Depot holder, had been issuing less kerosene oil to the consumers about which the aggrieved consumers presented an application on 6.4.1993 to the Deputy Commissioner, Panipat, upon which raid was conducted and on physical inspection kerosene oil was found 1200 Ltrs. and except sale- register there was no record available with him nor the rate was filled in the stock register whereas he had shown sale of 690 Ltrs. of kerosene oil to the consumers but did not get their signatures. He was issued 2100 Ltrs. of kerosene oil and the balance should have been 1410 Ltrs. so there was deficiency of 210 Ltrs ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 4 of kerosene oil in the stock. Measure of 5 Ltrs. was also taken into possession in which cement was found in the bottom and on measurement it was found that it measured only 3 Ltrs. instead of 5 Ltrs. Statements of consumers were also recorded on the spot regarding less measurement. Moreover, he was charging Rs.16/- for five Ltrs. kerosene oil instead of 14.10 Paise i.e. the fixed rate. During investigations statements of witnesses were recorded. Accused was arrested and after completion of necessary investigations, the accused was booked for trial under Section 7 of the Essential Commodities Act, 1955, by the Station House Officer, Sadar Panipat.
3. After perusal of the Police report and after hearing both the sides, notice of accusations was served upon the accused- appellant, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case against the accused, the prosecution examined Tek Chand, Sub Inspector Food and Supply as PW1; Ram Narain son of Hari Ram as PW2; Ram Dia son of Dhan Singh as PW3; Prem Kumar Sharma, Assistant Food and Supply Officer, Panipat, as PW4; Satbir son of Umed Singh ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 5 as PW5; Satbir son of Umed Singh as PW6; Ram Karan son of Puran Chand as PW7; Chandgi son of Ram Dhari as PW8; Suraj Mal son of Chanda Ram as PW9; Phulla son of Ram Dhari as PW10; Mohar Singh son of Harphool as PW11; SI Bhullan Singh as PW12; Man Singh, Deputy Superintendent, Office of District Food and Supplies Controller as PW13; and Rajinder son of Bekh Narain as PW14. PWs Mahi Pal, Brij Pal, Gurdial Singh, Ishwar Singh, Suresh Kumar, Ram Parkash, Jhara Parshad and Sardool Singh were given up as having been won over by the accused, whereas, PWs Constable Om Parkash, Gori Shankar Inspector and SI Badan Singh, were given up as unnecessary.
5. The accused was examined under Section 313 Cr.P.C. wherein all the incriminating circumstances appearing in the prosecution case were put to him, which he denied and pleaded false implication. It was stated that he has been falsely implicated by Chandgi and Phulla, on account of their enmity as the appellant had supported the case of his tenant, Shamsher, with regard to kidnapping of his daughter by the nephew of Chandgi and Phulla, namely Satish son of Balbir (the real brother of Chandgi and Phulla). In defence, the appellant examined DW1, Ram Phal son of Mangat Ram, Employee of Food and Supplies, Haryana, Chandigarh, to the effect that the file pertaining to the complainant against the appellant was not traceable and had probably been destroyed.
ATUL SETHI2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 6
6. After hearing learned counsel for the parties and on the basis of the evidence brought on record, the learned trial Court has convicted and sentenced the appellant for the offence and the term, as detailed at the outset of this judgment.
7. Aggrieved against the judgment of conviction and order of sentence, the appellant preferred the present appeal, which was admitted by this Court on 20.09.2001.
8. It is contended that the alleged defective measure was not seized/recovered from the appellant, as is clear from the statement of PW-10, Phulla, who admitted lifting of the measure from the depot of the appellant on 05.04.1993, and handing over the same to the Deputy Commissioner along with the complaint dated 06.04.1993. He further submits that the case of the prosecution is further falsified from the statement of PW-4, Prem Kumar Sharma, AFSO, who stated that SI Tek Chand, Food & Supplies Department, was deputed to collect the defective measure which was stated to have been produced in the office of Deputy Commissioner, Panipat. The alleged defective measure was taken into possession by the police on 09.04.1993, vide recovery memo, Ex.PB, however, he could not tell as to from whom Tek Chand had taken the same. He also admits that he did not know as to whom the defective measure belongs to. The learned counsel further relies upon the statement of PW-2, Ram Narain and PW-11, Mohar Singh, who stated that the accused ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 7 neither overcharged, nor issued less quantity of kerosene oil. The learned counsel further refers to the statement of PW-13, Man Singh, Deputy Superintendent, Office of District Food and Supplies Controller, who stated that he did not bring any record with respect to issuance of kerosene oil to the appellant, for the relevant period, i.e. the months of March and April, 1993. Thus, the learned counsel submits that the record was not examined to determine as to how much kerosene oil was issued to the appellant. It is also not clear as to on what basis it was asserted that the stock was deficient by 210 lts. He further states that there is no positive proof on record with regard to the quantity of unsold kerosene oil. Neither the stock register was verified by him, nor the accused was present at the time of the alleged raid. Moreover, the checking report was not signed by the appellant. The appellant, in fact, has been falsely implicated in the instant case on account of his enmity with PW-8 Chandgi son of Ram Dhari and PW-10, Phulla son of Ram Dhari, who are real brothers, as the appellant supported the case of his tenant, Shamsher Singh, whose daughter was kidnapped by their nephew, Satish. Furthermore, false implication of the appellant in the instant case is apparent from the fact that one Isham Singh, appeared before the Court by impersonating himself as Satbir Singh, PW-5, and notice of perjury was issued against him. ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 8
9. On the other hand, the learned State counsel submits that the prosecution has successfully proved its case against the appellant beyond reasonable doubt. The appellant had been issuing less quantity of kerosene oil by laying cement at the base of the measure. He also used to overcharge i.e. Rs.16 instead of Rs.14.10 per five litres. The stock of kerosene was also found deficient by 210 litres.
10. I have heard learned counsel for the parties and perused the record with their able assistance.
11. The first charge against the appellant is of issuing less quantity of kerosene oil by using a defective measure. It has been alleged that cement was laid at the base of the measure of five litres which actually measured three litres. In this regard, PW-10, Phulla, has categorically stated that he lifted the measure from the depot of the appellant on 05.04.1993, and handed over the same to the Deputy Commissioner on 06.04.1993. Therefore, the manipulation of the measure by the complainant cannot be ruled out, especially, when the raid was conducted behind the appellant's back. Further, as per the statement of PW-4, Prem Kumar Sharma, AFSO, the defective measure was taken into possession by the Police on 09.04.1993 vide recovery memo Ex.PB. This witness has categorically stated that he did not know as to whom the measure in question belonged to. In this manner, ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 9 the prosecution has failed to connect the alleged defective measure with the appellant.
12. The second charge against the appellant is with regard to overcharging. As per the case of the prosecution, the appellant used to charge Rs.16/- instead of the control rate of Rs.14.10 per five litres of kerosene oil. However, as per the statement of PW- 2, Ram Narain, he had purchased five litres of kerosene oil from the appellant on the ration card for Rs.14/- and some paise. He also admits having signed the register in token of having received the kerosene oil. The statement of PW3-Ram Dia is self- contradictory as he admitted that he did not buy kerosene oil on the relevant date.
13. The third and final charge against the appellant is with regard to deficiency in the stock of kerosene oil by 210 litres. In order to prove this fact, the prosecution was firstly required to prove as to how much quantity was issued to the appellant, by producing the wholesale dealer who supposedly issued 2100 litres of oil to the appellant. However, for the reasons best known to the prosecution, this witness was withheld. PW-4, Prem Kumar Sharma, AFSO, has admitted before the Court that at the time of the raid, no stock register was seized to verify the actual stock. Moreover, the appellant was neither present nor has he signed the checking report. Similarly, Man Singh, Deputy Superintendent, Office of District Food and Supply Officer, PW-13, stated that he ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh CRA No.1048-SB of 2001 10 did not bring any record with respect to issue of kerosene oil to the appellant for the months of March and April. Therefore, the assertion of the prosecution that the appellant was issued 2100 litres of kerosene oil is based only on assumptions. Similarly, there is no evidence with regard to the unsold stock as the same was not physically measured.
14. From the record available, it is made out that the complainant was inimical to the appellant. The nephew of PW-8 and PW-10, kidnapped the daughter of appellant's tenant, wherein, the appellant had deposed against them. Coupled with this, the conduct of Isham Singh, who appeared before the Court by impersonating himself as Satbir Singh, PW-5, the assertion of the appellant that he has been falsely implicated in the present case at the behest of the complainant, gains credence.
15. In view of the above discussion, this Court feels that the prosecution has failed to prove its case against the appellant. Consequently, the present appeal is allowed and the impugned judgment and order passed by the learned trial Court is hereby set aside. The appellant is acquitted of the charges framed against him. The appellant was granted bail by this Court. His bail bonds shall stand discharged.
( JITENDRA CHAUHAN ) 10.12.2014 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No ATUL SETHI 2015.02.25 16:44 I attest to the accuracy and authenticity of this document Chandigarh