Patna High Court
Usman Mian And Ors. vs State Of Bihar on 5 August, 1969
Equivalent citations: 1971CRILJ747
ORDER G.N. Prasad, J.
1. Both these applications arise out of the same order and have, therefore, been heard together. In all, there are three petitioners, all of whom have been convicted Under Section 7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for one year. In addition, Usman Mian, the petitioner in Criminal Revision No. 2512, has been sentenced to pay a fine of Rs. 500/- or, in default, to undergo rigorous imprisonment for six months more.
2. The occurrence took place at about 1 A. M. in the early hours of the 18th October, 1967. on a public road running between Fookbandi and Karmatand within Narainpur Police Station, in the District of Santhal Parganas. At the relevant time and place, Ramzan Mian (P.W. 12) saw a bullock-cart laden with food-grains proceeding towards Karmatand and all the three petitioners accompanying the cart on foot. Upon the query of P.W. 12, petitioner Usman Mian stated that he was taking the grains from his shop in Fookbandi to his house in village Karmatand. Thereupon P.W. 12 raised an alaram at which certain villagers of Tarkoiori, such as Abdul Rahim, (P.W. 10) and Zabbar Mian (P.W. 11) came up and ran behind the cart raising hulla. Thereupon petitioners Usman Mian and Hari Pandit fled away, but petitioner Khedu Pandit was apprehended, who then said that the food-grains related to the fair price shop of Usman Mian and he had been engaged for the purpose of reaching them to his house in Karmatand. The bullock-cart contained four bags of Baira and two bags of wheat. After detaining the cart, Ramzan Mian (P.W. 12) gave a written report (Ext. 2) to the officer in-charge of Narainpur Police Station (P.W. 13), who instituted a case and took up investigation.
He visited the spot which lay in Tola Madarpur of village Tarkojori and seized the bullock-cart along with the grain bags. On weighment, the stock was found to consist of 7 maunds of Baira and 3 maunds 29 seers of wheat. Subsequently. samples of both the varieties of foodgrains were forwarded by the Investigating Officer (P.W. 13) to the Government of India, Ministry of Food and Agriculture. New Delhi, for an analysis. The Analyser attached to the office of the Assistant Director (Tech.), Storage and Inspection (Department of Food), reported that the samples were of imported varieties of wheat and milo. The Analyser's report is on the record as Ext. 5. In due course, all the three petitioners were put on trial before the Munsif Magistrate exercising first class powers at Jamtara.
3. The petitioners denied the prosecution case and took the plea that they had been falsely implicated at the instance of Ramzan Mian (P.W. 12), who was on terms of bitter enmity with petitioner Usman Mian. The trial Court, however, accepted the prosecution case and convicted the petitioners as aforesaid. Against their conviction, the petitioners took an appeal to the Sessions Judge, but that was summarily rejected. The petitioners have, accordingly, come up to this Court in revision.
4. The first contention of Mr Sanyal is that the conviction of petitioner Usman Mian is not iustified since there is no legal evidence on record to show that the foodgrains in question related to the Government fair-price shop which he was running at Fookbandi. It is urged that the onlv material on the record on this point is the statement of petitioner Khedu Pandit, but that cannot be used in evidence against Detitioner Usman Main, being the statement of a co-accused. It is true that a statement of an accused is inadmissible against a co-accused and mav at best be used against the maker only. The authority for this proposition is the decision of the Privv Council in Walli Mohammad v. The Kine A.I.R. 1949 PC 103 which was cited with approval by their Lordships of the Supre-me Court in Sar.ioo Prasad v. The Statn of Bihar, (Criminal Appeals Nos. 53 and 54 of 1965). decided on 5-91967. But it is not correct to say that apart from the statement of Khedu Pandit, there is no material on the record in support of the fact that the foodgrains in question relat ed to the Government fair once shop of Usman Mian. Usman Mian was himself accompanying the bullock-cart along with Khedu Pandit and Hari Pandit. Besides, he and Hari Pandit had fled awav when the villagers had raised an alarm and pur sued the bullock-cart.
The spot where the foodgrains wen-intercepted lay at a distance of onlv a mile and a half from Fookbandi where Usman Mian was running a Government fair-price shop in foodgrains. There k no indication in the record that there was anv other Government fair price shop then in existence in the vicinity. The bullock-cart was on its wav to Karmatanri. which is admittedly the native village of Usman Mian. From these materials it may legitimately be inferred that the foodgrains in question formed_ part of the stock of Government fair price shop be longing to Usman Mian, otherwise Usman Main would not have been accompanying the bullock-cart at an unearthly hour of the night. It is true, as urged by Mr Sanyal, that no material has been brought on the record which might show that there was anv deficiency or excess of stocks of these two varieties of foodgrains in the shop premises of Usman Mian. It would have been better if the stocks in the shop would have been checked up but even without such additional materi als. the circumstances to which I have already referred, leave no room for doubt that they did form part of the stocks of his shop. I. therefore, reject this conten tion of Mr. Sanval.
5. Mr. Sanval has then urged that the Analvser's report (Ext. 5) should not have been taken into account as it has not been proved in accordance with the law. but has been wrongly admitted in evidence as if it were a report of a chemical examiner within the meaning of Section 510 of the Code of Criminal Procedure. The Analyser who has made the report (Ext. 5) was not examined as a witness in the case. Ext. 5 however, shows that the samples of wheal and milo in question were subjected to "Laboratory examination" in the "Central Grain Analysis Laboratory" of the Department of Food and Agriculture of the Government of India, and it was as a result of such laboratory examination that the finding of the Analyser was that they were wheat and milo of the imported varieties, the distribution and sale of which was regulated and controlled under the provisions of the Imported Foodgrains (Prohibition of Unauthorised Sales) Order. 1958. It is manifest that the analysis conducted in the Grain Analysis Laboratory was a chemical analysis, and as such the Analyser who conducted the chemical analysis was a Chemical examiner of the Government of India within the meaning of Section 510 of the Code of Criminal Procedure. Mr. Sanval. however, relied upon Mangaldas Raghavji v. State of Maharashtra . where the admissibilitv of a report of the Public Analyst Under Section 13 (5) of the Prevention of Food Adulteration Act, 1954, came up for consideration. The High Court in that case had made the following observations:
It is beyond controversy that, normally, in order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court. A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination.
The Supreme Court pointed out:
It will thus be clear that the High Court did not hold that the certificate was. by itself insufficient in law to sustain the conviction and indeed it could not well have said so in view of the provisions of Section 510, Criminal Procedure Code.
These observations of the Supreme Court leave no room for doubt that even a report of the Public Analyst contemplated by Section 13 of the Prevention of Food Adulteration Act would be admissible in evidence under the provisions of Section 510 of the Code of Criminal Procedure though as indicated by their Lordships, a Court might be justified in not acting upon such a certificate unless the Analyser was examined as a witness in the case. In my judgment, all that is necessary to attract the provisions of Section 510 of the Code of Criminal Procedure is that the report in question must be the report of an officer of the Government who has conducted a chemical examination of the samples in question in due discharge of his duties as a chemical examiner, by whatever designation he might be known. In the instant case, the observations incorporated in Ext. 5 were the observations of an Analyser of the Government of India made as a result of laboratory examination of the samples in question. Evidently. that means that the Analyser was a chemical examiner, otherwise he would not have made a laboratory examination of the samples in question.
I am, therefore, of the opinion thai Ext. 5 is admissible in evidence under the provisions of Section 510 of the Cri. Pro. Code. As to the weight which should be attached tJ it. I see no reason why it should not be relied upon. The findings of the Analyser have been supported by the Assistant Director (Technical), storage and Inspection, attached lo the Ministry of Food of the Government of India. It must be presumed that these officers were holding requisite Scientific Qualifications and capable of coming U) right observations on laboratory examination of the samples in question. This con tention of Mr. Sanyal also fails.
6. Finally. Mr. Sanval has assailed that part of the order of the learned Magistrate whereby the cart, the bullocks and the foodgrains have all been forfeited to the Government. This order has obviously been passed under Clause (b) of Section 7(1) of the Essential Commoditus-Act which provides:
Any property in respect of which the order has been contravened or such part thereof as the Court may seem fit. shall be forfeited to the Government.
Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, anv part of the property, it may, for reasons to be recorded, refrain from doing so.
The Order which has been contravened in the present case is the Imported Food-grains (Prohibition of Unauthorised Sales) Order, 1958, and the property in respect of which that Order has been contravened is the seized stocks of imported wheat and milo. The cart and the bullocks could not possibly answer the description of any property in respect of which the Imported Foodgrains Order can be said to have been contravened. The contravention related only to the stocks of wheat and milo. 1 am. therefore, of the opinion that Mr. Sanyal is right that the learned Magistrate was not justified in directing the forfeiture of even the cart and the bullocks. The forfeiture order must, therefore, operate only with respect to the seized stocks of wheat and milo.
7. With the above modification in the forfeiture order, both these applications are dismissed.