Punjab-Haryana High Court
Parmod Kumar vs State Of Punjab on 21 February, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. 1392 SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1392 SB of 2002
Date of decision 21 .2.2011.
Parmod Kumar
...... Appellant.
versus
State of Punjab
...... Respondent.
Present : Mr. A.P.S.Deol, Senior Advocate with
Mr. Vishal Rattan Lamba, Advocate for the appellant.
Mr. Amandeep Singh Rai, Assistant Advocate General,
Punjab.
Criminal Appeal No. 1406 SB of 2002
Sohan Singh and another
...... Appellants.
versus
State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. Surinder Khanna, Advocate for the appellants.
Criminal Appeal No. 1392 SB of 2002 2
Mr. Amandeep Singh Rai, Assistant Advocate General,
Punjab.
K.C.PURI, J.
By this common order, I intend to dispose of Criminal Appeal No.1392 SB of 2002 titled as Parmod Kumar vs. State of Punjab and Criminal Appeal No. 1406 SB of 2002 titled as Sohan Singh and another vs. State of Punjab, as both arisen out of the same judgment and order. For convenience, facts are being taken from Criminal Appeal No. 1392 SB of 2002.
The aforesaid appeals have been directed by appellants against the judgment and order dated 29.8.2002 passed by learned Special Judge, Barnala vide which they have been convicted for an offence punishable under Section 7 of the Essential Commodities Act, 1955 for the contravention of the provisions of Clause-3 of the Punjab Light Diesel and Kerosene Dealers Licencing Order, 1978 and against Parmod Kumar and under Section 7 of the Essential Commodities Act, 1955 against the appellants in contravention of the provisions of Clauses - 3 and 4 of the Lubricating Oils and Greases (Processing, Supply and Distribution Regulation ) Order, 1987 and sentenced them as under :- Criminal Appeal No. 1392 SB of 2002 3
Criminal Appeal No. 1392 SB of to undergo rigorous imprisonment 2002 Parmod Kumar for a period of two years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month under Section 7 of the Essential Commodities Act, 1955 ( amended up to date ) for the contravention of the provisions of Clause 3 of the Punjab Light Diesel and Kerosene Dealers Licencing Order, 1978.
to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month under Section 7 of the Essential Commodities Act, 1955 (amended upto date) for the contravention of the provisions of Clauses 3 and 4 of the Lubricating Oils and Greases (Processing, Supply and Distribution Regulations ) Order, 1987.
Criminal Appeal No.1406 SB of to undergo rigorous imprisonment 2002 Sohan Singh and another vs. for a period of two years and to pay a State of Punjab fine of Rs.5000/- and in default of payment of fine to further undergo Appellant - Sohan Singh rigorous imprisonment for a period of one month under Section 7 of the Essential Commodities Act, 1955 (amended upto date) for the contravention of the provisions of Clauses 3 and 4 of the Lubricating Oils and Greases (Processing, Supply and Distribution Regulations ) Order, 1987.Criminal Appeal No. 1392 SB of 2002 4
Rajan Kumar to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month under Section 7 of the Essential Commodities Act, 1955 (amended upto date) for the contravention of the provisions of Clause-3 of the Punjab Light Diesel and Kerosene Dealers Licencing Order 1978.
The substantive sentences were ordered to run concurrently in both the appeals.
Briefly stated the prosecution story is that on 30.1.1996, Gurbans Singh Assistant Sub Inspector S.H.O./P.S. Sadar, Barnala, along with SI Kuldeep Singh and other Police officials was present in village Bhadalwad, where a secret information was received that Parmod Kumar, a licencee of white colour kerosene oil at Wajidke Kalan was collecting kerosene oil of blue colour from the Depot Holders of surrounding areas, which was only meant for sale to the ration card holders and by mixing acids therein was selling the same in the black market. ASI Gurbans Singh was also informed that even at that time, a representative of some firm had come to Parmod Kumar for the purchase of such oil and his mixing plant was in operation, and if the raid was conducted, the same could be recovered. Ruqa Ex.PH was sent through constable Sukhjant Singh to Police Station, Kotwali, Barnala. On the basis thereof, F.I.R. was registered by ASI Jaswant Singh. Thereafter, a message was sent to the D.S.P., that a police officer of the Rank of Sub Inspector, be sent to Bhadalwad to conduct the raid. After some time SI Rattan Singh, Incharge Criminal Appeal No. 1392 SB of 2002 5 Police Post Industrial Area, Barnala, along with the police party came to Bhadalwad and met Gurbans Singh. Rattan Singh, SI was apprised of the facts and circumstances of the case. At that time, Daler Singh constable, in civil dress was present with ASI Gurbans Singh and he was handed over a sum of Rs. 200/- by SI Rattan Singh, and he was instructed to purchase kerosene oil with that amount from the Depot of Parmod Kumar. He was also handed over an empty can of the capacity of 20 litres. Accordingly, Constable Daler Singh purchased 20 litres of kerosene oil vide bill Ex. P-1. Three bottles were taken out as samples from that can by SI Rattan Singh. The said bottles were sealed with the seal bearing impression "RS" of SI Rattan Singh. The can containing the remaining kerosene oil was also sealed with the seal "RS" belonging to SI Rattan Singh after tying a piece of cloth on the outlet of that can. The sample bottles and the can Ex.P-2 were taken into possession. Thereafter, the police party started for raid to village Wajidke Kalan and when crossed the drain bridge of village Kalan, Ram Lal Assistant Food and Supplies Officer and Jarnail Singh Inspector, Food and supplies met them. They were also apprised of the facts and circumstances of the case and joined with the police party.
Thereafter, the police party along with the aforesaid officers, reached village Wajidke Kalan, where ASI Amrik Singh met them. The factory of Parmod Kumar accused, in the area of Wajidke Kalan was raided. It was a Depot of Parmod Kumar, where he had set up a factory for manufacturing spurious kerosene oil i.e. for change of blue colour kerosene oil into white colour kerosene oil. In a room, which was on the back side of the building, Parmod Kumar was operating the mixing plant. The mixing Criminal Appeal No. 1392 SB of 2002 6 plant had been set up by keeping a girder on a tank, on which a mixer with a motor had been installed. Parmod Kumar and Sohan Singh were converting the blue colour kerosene oil into white colour kerosene oil, with the help of the aforesaid mixing plant. The plant was ordered to be stopped. Rajan Kumar accused was sitting on the tanker. From the tank, three bottles of kerosene oil were taken as samples and the remaining kerosene oil was measured which came to be four drums. Three bottles as samples and four drums containing kerosene oil were sealed with the seals bearing impression "RS" of SI Rattan Rattan Singh and "RL" of Ram Lal A.F.S.O. Thereafter, the tank, the drums and the sample bottles were taken into possession. Another tank was also lying outside, which also contained the kerosene oil. Three bottles were taken as samples, from that tank. The remaining kerosene oil, in the tank, on measurement, came to be four drums. The sample bottles, the drums and the tank were sealed with the seals bearing impressions "RS" and "RL". Another tank containing kerosene oil was lying nearby out of which three bottles were taken as samples and the remaining kerosene oil, in the tank, on measurement, came to be three drums. Said three bottles as samples and the drums were sealed with the seals bearing impressions "RS" and "RL". There was a dump created in the earth, which contained changed white colour kerosene oil. Three bottles as samples were taken out of that dump and the remaining changed kerosene oil, on measurement, came to be 11 drums. The drums and the sample bottles were sealed with the seals bearing impression "RS" and "RL". The kerosene oil lying in the tanker, outside the building, was measured with the help of nip and and it came to be 4700 litres. The number of the tanker was Criminal Appeal No. 1392 SB of 2002 7 PB.10/9805. Three bottles were taken as samples, from the said tanker. The sample bottles and the outlets of the tanker, by trying the same with the pieces of cloth were sealed with seals bearing impression "RS" and "RL". The tanker was taken into possession vide recovery memo Ex.PN and the remaining property, referred to above, was taken into possession. A can containing 35 litres of sulphuric acid was also recovered from the room, where the mixing plant was set up. Three samples were taken from the said can. The samples and the can were sealed with the seal bearing impressions "RS" and "RL". These were taken into possession. Two drums containing blue colour kerosene oil were also found there. Three bottles from each drum were taken out as samples. The sample bottles and the drums were sealed with the seals bearing impressions "RS and RL." One more drum containing mobil oil was also recovered from there. Three bottles were taken as samples from that drum. The bottles and the drum containing the remaining mobil oil were sealed with the seals bearing impressions "RS and "RL" and were taken into possession. The mixing plant and its accessories were taken into possession vide recovery memo Ex.PO attested by ASI Gurbans Singh and Ram Lal, AFSO. Parmod Kumar, Sohan Singh and Rajan Kumar accused were arrested at the spot.
Parmod Kumar accused produced certain documents, which contained a free sale licence for the sale of white colour kerosene oil, which was taken into possession vide recovery memo Ex.PU attested by ASI Gurbans Singh and other witnesses. He also produced stock register Ex.P- 32, which was taken into possession vide recovery memo Ex.PV attested by ASI Gurbans Singh and Ram Lal AFSO. He also produced a bill Ex.P-33 Criminal Appeal No. 1392 SB of 2002 8 which was taken into possession vide recovery memo Ex.PX attested by the aforesaid witnesses. He also produced a bill book Ex.P-34, which was taken into possession vide recovery memo Ex.PY attested by the aforesaid witnesses. He also produced a duplicate bill, in bill book Ex.P-34 for Rs. 170/-. He also produced bill dated 30.1.1996 Ex. P-36, which was taken into possession vide recovery memo Ex.PZ attested by the aforesaid witnesses. The case property was also taken into possession. After completion of investigation, challan against the accused was presented in the Court for trial.
On their appearance in the court, the accused were supplied with the copies of documents, relied upon by the prosecution. Charges were framed. The accused pleaded not guilty to the charges and claimed trial.
The prosecution in support of its case examined Jit Singh PW1, Antar Singh A.F.S.O. at Barnala as PW2, Bikkar Singh PW3, Constable Daler Singh PW4, HC Hardev Singh, PW5, Constable Manjit Singh, PW6, MHC Ishwar Sarup Singh, PW7 HC Avtar Singh (PW-8), SI Gurbans Singh (PW-9), who associated SI Rattan Singh (PW-10) the Investigating Officer and Ram Lal, AFSO, PW11. The Addl. P.P. for the State, thereafter closed the prosecution evidence.
The statements of the accused under Section 313 Cr.P.C were recorded. They were put all the incriminating circumstances appearing against them in the prosecution evidence. They pleaded their innocence.
Parmod Kumar accused in his statement under Section 313 Cr.PC, stated that he was innocent. He further stated that he was a wholesale Criminal Appeal No. 1392 SB of 2002 9 licencee of white colour kerosene oil under parallel marketing system. He further stated that the white kerosene oil was for free sale. This kerosene oil had been imported from Ludhiana. He further stated that Sohan Singh accused was driver of the tanker and Rajan Kumar accused was cleaner on it. They were unloading the kerosene oil in the drums. It was further stated by him that SI Gurbans Singh, SHO/PS Barnala had come to his premises with police force in a truck. SI Rattan Singh or any employee of the Food and Supplies Department was not with him. Many people of the village including Bahal Singh, Numberdar and Jagtar Singh Panch were present there. ASI Gurbans Singh took him along with drums of white colour kerosene oil and the tanker along with Sohan Singh and Rajan Kumar to P.S. Sadar Barnala. He also took away the empty drums and the drums containing mobile oil, syntax tanks, motor for uplifting water, a girder kept for construction purposes, a mixture for churning Dahi (curd) and all the documents, from his shop. He further stated that they were taken to P.S. Sadar, Barnala, where a D.S.P. and SI Rattan Singh were summoned by ASI Gurbans Singh and this false case was foisted against him and the other accused. He further stated that ASI Gurbans Singh and other Police Officers, were annoyed with him, as he did not supply kerosene oil free of cost. He further stated that he also refused to provide them services or anything gratis.
Sohan Singh- accused, who was driver of the tanker and Rajan Kumar accused, who was cleaner of the tanker almost took up the same plea, as was taken up, by Parmod Kumar, accused in his statement under section 313 Cr.P.C Rajan Kumar, accused, further stated that he was the Criminal Appeal No. 1392 SB of 2002 10 cleaner of the tanker whereas Sohan Singh accused was the driver of the tanker. He further stated that they had brought kerosene oil, from M/s Om Bapu and Co. Machhiwara Road, Mundian Kalan, Ludhiana. He further stated that they were unloading the kerosene oil, in the drums, when ASI Gurbans Singh came there and took them, away, along with the drums of kerosene oil, tanker etc The accused in their defence examined Diwan Chand (DW-1), Surinder Kumar (DW-2), Bahal Singh (DW-3), Rajinder Kumar (DW-4), Bachan Lal (DW-5) and Sital Kumar (DW-6), The trial Court after hearing the learned counsel for the parties, convicted and sentenced the accused as aforesaid vide judgment and order dated 29.8.2002.
Feeling dissatisfied with the aforesaid, the accused-appellants preferred the present appeal.
I have heard learned counsel for the parties and have gone through the records of the case.
Learned counsel for the appellants has submitted that appellant Parmod Kumar is admittedly a licenced holder for keeping in possession of white kerosene oil and selling the same. The white kerosene oil was alleged to be recovered from the appellants. So, in these circumstances, no offence can be attributed to the appellants. The instruments of changing the blue kerosene oil into white kerosene oil have been planted upon the appellants. The blue kerosene oil was not recovered from the appellants but the same has been planted upon them.Criminal Appeal No. 1392 SB of 2002 11
Learned counsel for the appellants has further submitted that the reliance of the prosecution is mainly upon the report of Forensic Science Laboratory. The said report has not been specifically put to the appellants and as such the same cannot be read against them. If the said report is taken in that case, the case of prosecution will fall like a sand castle on the ground.
Lastly, learned counsel for the appellants has submitted that in case the Court is not inclined to accept the prayer for acquittal in that case, the appellants may be allowed concession of probation. The appellants are facing trial since 1994.
To support this contention, learned counsel for the appellants has relied upon the following authorities :-
1.Harivallabha and another vs. State of M.P. (2005 10 Supreme court Cases 330 ;
Sant Lal vs. State of Haryana 1999(2) R.C.R.(Criminal) 563 ; and
3.Lattu Mahto & Anr. vs. The State of Bihar (now Jharkhand) 2008 (3) R.C.R.(Criminal) 467.
On the other hand learned State counsel supported the judgment of the trial Court.
I have carefully considered the submissions made by learned counsel for the appellants but do not find any force in that submission.
The allegations against the appellants are that they were changing the colour of blue kerosene oil meant for public distribution Criminal Appeal No. 1392 SB of 2002 12 system to white kerosene oil and used to sell the same. The instruments for changing the blue kerosene oil to white kerosene oil has been recovered. The sulphuric acid which is meant to change blue colour to white colour has also been recovered from the appellants. So, the above said arguments are without any substance. The learned trial Court has observed that even if the report of the Forensic Science Laboratory is not taken into account, the offence is proved. How the appellants came into possession of the blue colour kerosene oil remains unexplained. The sample taken at the spot contained contents of sulphuric acid, which proves the fact that the blue kerosene oil has been changed into white kerosene oil. So, in these circumstances, the conviction recorded by the trial Court does not call for any interference and consequently the same stands affirmed.
So far as submission made by learned counsel for the appellants for grant of concession of probation is concerned, the said submission carries weight and has to be accepted.
The accused are facing trial since 1994. Even the Hon'ble Apex Court in authority Harivallabha and another's case (supra) allowed the concession of probation where the sentence awarded by the trial Court was three years, which was reduced by the High Court to three months.
This Court in authority Sant Lal's case (supra) allowed the concession of probation.
So far as authority Lattu Mahto & Anr's case (supra) is concerned that case relates to offence under Sections 302 and 149 IPC and it has been held that the evidence not put to the accused under Section 313 Criminal Appeal No. 1392 SB of 2002 13 Cr.P.C. may not be read into. The said authority seems to have been relied upon in connection with the report of the Forensic Science Laboratory. However, in the absence of the said report, the conviction can be maintained. So, the appellants cannot derive benefit of the said authority.
So, keeping in view whole of the circumstances, the conviction is upheld. However, in the facts and circumstances of the case, the appellants are ordered to be released on probation under Section 4(1) of the Probation of Offenders Act, 1958 on their furnishing personal bonds and surety bonds in the sum of Rs.20,000/- each to the satisfaction of the learned Chief Judicial Magistrate, Barnala with an undertaking to maintain peace and be of good behaviour for a period of one year and to serve the sentence as and when called upon during the said period, in the event of breach of the bond. The requisite bonds be furnished before learned Chief Judicial Magistrate, Barnala within two months from today failing which the appellants shall undergo the sentence awarded by the trial Court.
With the above modifications in the sentence, both the appeals stand disposed of accordingly.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
February 21 , 2011
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