Madras High Court
A. Srinivasan And A. Sethu Sebastian vs State By The Inspector Of Police, Civil ... on 22 March, 2006
ORDER S. Sardar Zackria Hussain, J.
1. Criminal Appeal Nos. 342 and 343 of 1998 have been filed by A2 and A3 in S.T.C.Nos.27 of 1995 and 55 of 1992 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per separate judgments dated 16.4.1998 made in S.T.C.Nos.27 of 1995 and 55 of 1992.
2. Criminal Appeal Nos. 381, 382 and 384 of 1998 have been filed by A2 and A3 in S.T.C.Nos.56 and 54 of 1992 and 95 of 1991 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, in default to undergo one month simple imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per separate judgments dated 15.5.1998, 14.5.1998 and 15.5.1998 made in S.T.C.Nos.56 and 54 of 1992 and 95 of 1991 respectively.
3. Criminal Appeal No. 415 of 1998 has been filed by A2 in S.T.C.No.4 of 1995 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 23.4.1998 made in S.T.C.No.4 of 1995.
4. Criminal Appeal No. 456 of 1998 has been filed by A2 in S.T.C.No.15 of 1995 on the file of the Special Court (E.C. Act), Salem, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 250/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 27.4.1998 made in S.T.C.No.15 of 1995.
5. Criminal Appeal No. 576 of 1998 has been filed by A2 and A3, in S.T.C.No.11 of 1995 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence imposed to A2 and A3 to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1,000/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 16.7.1998 made in S.T.C.No.11 of 1995.
6. Criminal Appeal No. 790 of 1998 has been filed by A2 and A3 in S.T.C.No.24 of 1995 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1,000/-, in default to undergo one month simple imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 21.9.1998 made in S.T.C.No.24 of 1995.
7. Criminal Appeal No. 338 of 1998 has been filed by A2 in S.T.C.No.97 of 1991 on the file of the Special Court (E.C. Act), Chennai, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 7.4.1998 made in S.T.C.No.97 of 1991.
8. Criminal Appeal No. 194 of 1998 has been filed by A2 in S.T.C.No.2 of 1996 on the file of the Special Court (E.C. Act), Salem, against the conviction and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default to undergo one month rigorous imprisonment for the offence under Clause 6(2) and (3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order of 1982 read with Section 7(1)(a)(ii) of Essential Commodities Act of 1955, as per judgment dated 6.2.1998 made in S.T.C.No.2 of 1996.
9. As per the case of prosecution in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 11 of 1995 and 24 of 1995 on the file of Special Court (EC Act) Cehnnai, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 576 and 790 of 1998, A1 as the authorised dealer was entrusted with the supply of scheduled commodities to the registered ration-card holders to the concerned ration shops, in which A2 was the bill clerk and A3 was the packer. On information that during the period from 1.1.1991 to 31.3.1991 malpractice has been committed in the concerned ration shops and on verification it was found that A2 and A3 have prepared bogus bills and essential commodities, viz., rice, sugar, wheat, palmolein oil and kerosene were supplied to the non-card holders and entries have been made as if the said items were supplied to the registered ration card-holders.
10. As per the case of prosecution in S.T.C.Nos.4 of 1995 and 97 of 1991 on the file of the Special Court (EC Act) Chennai, subject matter of the appeals in Crl.A.Nos.415 and 338 of 1998, A1 as the authorised dealer was entrusted with the supply of scheduled commodities to the registered ration-card holders to the concerned ration shops, in which A2 was the packer. On information that during the period from 1.1.1991 to 31.3.1991, malpractice has been committed in the concerned ration shops and on verification it was found that A2 has prepared bogus bills and essential commodities, viz., rice, sugar, wheat, palmolein oil and kerosene were supplied to the non-card holders and entries have been made as if the said items were supplied to registered ration card-holders.
11. As per the case of prosecution in S.T.C.No.15 of 1995 on the file of the Special Court (EC Act), Salem, subject matter of the appeal in Crl.A.No.456 of 1998, A1 as the authorised dealer was entrusted with the supply of scheduled commodities to the registered ration-card holders to the concerned ration shops, in which A2 was the salesman. On information that during the period from March, 1992 to June, 1992, malpractice has been committed in the concerned ration shops and on verification it was found that A2 has prepared bogus bills and essential commodities, viz., rice, sugar, wheat and kerosene were supplied to the non-card holders and entries have been made as if the said items were supplied to the registered ration card-holders.
12. As per the case of prosecution in S.T.C.No.2 of 1996 on the file of the Special Court (EC Act), Salem, subject matter of the appeal Crl.A.No.194 of 1998, A1 as the authorised dealer was entrusted with the supply of scheduled commodities to the registered ration-card holders with the A1 ration shop, viz., Secretary, Primary Agricultural Co-operative Bank, Manjavadi, in which A2 was the salesman. At the time of auditing the said ration shop, it was found that A2 has manipulated records as if 500 kgs of ration rice were sold to registered ration card-holders on 12.9.1995 and so A1 being authorised dealer and A2 being salesman are liable for punishment under Clause 6(2)(3) of TNSC (RDCS) Order 1982 read with 7(i)a(ii) of Essential Commodities Act 1955.
13. Further, it is the case of prosecution in S.T.C.No.27 of 1995 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.342 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 762 kgs of rice, 27 kgs of sugar, 10 kgs of wheat, 5 kgs of palmolein oil and 70 litres of kerosene all worth Rs. 2,385.50 intended for supply to the ration card-holders registered with the A1 ration shop, viz., NAMCO, represented by Special Officer, 29, Kamaraj Nagar, 4th Street, Ennore, Madras-59, to the non-card holders, which came to light on verification of 10 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
14. Further, it is the case of prosecution in S.T.C.No.55 of 1992 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.343 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 1003 kgs of rice, 16 kgs of sugar, 486 kgs of wheat and 155 litres of kerosene all worth Rs. 4,312.35 intended for supply to the card-holders registered with the A1 ration shop, viz., NAMCO, represented by the Special Officer, 38, Gopal Nagar, Thiruvotriyur, Madras-19, to the non-card holders, which came to light on verification of 8 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
15. Further, it is the case of prosecution in S.T.C.No.56 of 1992 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.381 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 256 kgs of rice, 20-1/2 kgs of sugar, 73 kgs of wheat, 3 kgs of palmolein oil and 190 litres of kerosene all worth Rs. 1,561.75 intended for supply to the card-holders registered with the A1 ration shop, viz., NAMCO, represented by the Special Officer, Bajanai Koil Street, Ernavur, Madras-57, to the non-card holders, which came to light on verification of 10 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
16. Further, it is the case of prosecution in S.T.C.No.54 of 1992 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.382 of 1998 that during the period 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 2,923 kgs of rice, 152-1/2 kgs of sugar, 282 kgs of wheat, 12 kgs of palmolein oil and 1230 litres of kerosene all worth Rs. 12,724.80 intended for supply to the card-holders registered with the A1 ration shop, viz., NAMCO, represented by the Special Officer, E.T.P.S. Shop-3, Annai Sivagami Nagar, Ennore, Madras-57, to the non-card holders, which came to light on verification of 15 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
17. Further, it is the case of prosecution in S.T.C.No.95 of 1991 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.384 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 963 kgs of rice, 27 kgs of sugar, 184 kgs of wheat, 24 kgs of palmolein oil and 500 litres of kerosene all worth Rs. 4,466.90 intended for supply to the card-holders registered with the A1 ration shop, viz., NAMCO, represented by the Special Officer, Shop No. 1, Atham Street, V.O.C. Zone, Madras, to the non-card holders, which came to light on verification of 15 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 made entries in connivance with A3 in the concerned register as if the commodities were distributed to the family card-holders.
18. Further, it is the case of prosecution in S.T.C.No.4 of 1995 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.415 of 1998 that during the period from 1.1.1991 to 31.3.1991, in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A2 sold 1947 kgs of rice, 14 kgs of sugar, 578 kgs of wheat, 7 packets of palmolein oil and 345 litres of kerosene all worth Rs. 7,532.30 intended for supply to the card-holders registered with the A1 ration shop, viz., NAMCO, represented by Special officer, Shop No. 1, Pidariyar Koil Street, V.O.C. Zone, Chennai, to the non-card holders, which came to light on verification of 12 ration cards, by preparing false bills and to conceal the offence, A2 made entries in the concerned register as if the commodities were distributed to the family card-holders.
19. Further, it is the case of prosecution in S.T.C.No.15 of 1995 on the file of the Special Court (EC Act), Salem, subject matter of the appeal in Crl.A.No.456 of 1998 that during the period from March, 1992 to June, 1992, in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 and A2 supplied essential commodities worth Rs. 8,195.68, intended for supply to the card-holders registered with the A1 ration shop, viz., Mambattu Primary Agricultural Co-operative Bank, represented by Special Officer to the non-card holders, which came to light on verification of 10 card-holders and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 made entries in the concerned register as if the commodities were distributed to the family card-holders.
20. Further, it is the case of prosecution in S.T.C.No.11 of 1995 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.576 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A2 and A3 supplied 655 kgs of rice, 91 kgs of sugar, 26 kgs of palmolein oil and 545 litres of kerosene all worth Rs. 4,275/- intended for supply to the card-holders registered with the ration shop, viz., NAMCO, represented by the Special Officer, East Mithiah Street, Vijayaraghavan Street, Old Washermenpet, Madras-21, to the non-card holders, which came to light on verification of 10 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
21. Further, it is the case of prosecution in S.T.C.No.24 of 1995 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.790 of 1998 that during the period from 1.1.1991 to 31.3.1991 in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A1 to A3 supplied 1337 kgs of rice, 46 kgs of sugar, 90 kgs of wheat, 5 kgs of palmolein oil and 350 litres of kerosene all worth Rs. 4,956.75 intended for supply to the card-holders registered with the ration shop, viz., NAMCO, represented by Special Officer, 3A, S.V.Koil Street, Thiruvotriyur, Chennai-19, to the non-card holders, which came to light on verification of 10 card-holders as detailed in the annexure enclosed with the charge-sheet and who have not received the said commodities, by preparing false bills and to conceal the offence, A2 and A3 made entries in the concerned register as if the commodities were distributed to the family card-holders.
22. Further, it is the case of prosecution in S.T.C.No.97 of 1991 on the file of the Special Court (EC Act), Chennai, subject matter of the appeal in Crl.A.No.338 of 1998 that during the period from 1.1.1991 to 31.3.1991, in contravention of Clause 6(2) and (3) of TNSC (RDCS) Order, 1982, A2 sold 489 kgs of rice worth Rs. 1,222.50, 29 kgs of sugar worth Rs. 152.25, 173 kgs of wheat worth Rs. 449.80, 8 packets of palmolein oil worth Rs. 180.00 and 115 litres of kerosene worth Rs. 339.25 intended for supply to the card-holders registered with the ration shop, viz., NAMCO, Shop No. 4, Adam Street, Chennai-1, represented by its Special Officer, to the non-card holders, which came to light on verification of 15 ration cards, by preparing false bills and to conceal the offence, A2 made entries in the concerned register as if the commodities were distributed to the family card-holders.
23. Separate evidence was let in, in each case and considering such evidence, the Special Courts (E.C. Act), Chennai, and also Salem acquitted A1 in Crl.A.Nos.342, 343, 381, 382, 384, 415, 456, 790, 338 and 194 of 1998 as no case is made out and by recording finding that A2 and A3 in Crl.A.Nos.342, 343, 381, 382, 384 and 790 of 1998 and A2 in Crl.A.Nos.415, 456, 338 and 194 of 1998 are guilty in respect of the charges levelled against them, convicted and sentenced as set out above. In Crl.A.No.576 of 1998, the learned Special Judge, Chennai recording finding that A1 to A3 are guilty in respect of the charges levelled against them, fine only imposed on A1 and convicted and sentenced on A2 and A3 as set out above. Challenging the said conviction and sentence, these appeals have been filed.
24. Learned counsel for the appellants in Crl.A.Nos.342, 343, 381, 382, 384, 415, 576 and 790 of 1998 vehemently contended that the conviction of the appellants relying on the ration cards, which have been marked, being not substantive evidence, in view of the fact, the said ration card-holders, whose statements have been recorded, but not examined in Court, is improper. It is then submitted by the learned counsel that A3 in Crl.A.Nos.342, 343, 381, 382, 384, 576 and 790 of 1998 and A2 in Crl.A.No.415 of 1998 were only a packer and as such, he is nothing to do with the preparation of the bills and make entries in the concerned registers or in the family cards. It is also very much attacked by the learned counsel that the non-examination of the ration card holders in respect of which ration cards have been marked, is very much fatal to the case of prosecution. As regards the inference drawn by the Special Courts that inasmuch as the appellants have paid the money, which it is alleged was loss caused to the Government and as such, they could have committed the offences, is incorrect. It is then submitted that the appellants in these appeals have not violated Clause 6(3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, as alleged and the prosecution failed to establish the charges levelled against the accused. Further, the learned counsel for the appellants in these appeals also contended that inasmuch as the main accused A1 in Crl.A.Nos.342, 343, 381, 382, 384, 415 and 790 of 1998, the authorised dealer is acquitted, the conviction of co-accused is not proper. He also submitted that the finding given in Crl.A.576 of 1998, in which even though A1 to A3 are found guilty, A1 was directed to pay a fine of Rs. 1,000/- only and A2 and A3 alone sentenced as set out above, is not proper. The learned counsel has submitted the rulings of this Court in Jesudoss v. State reported in 2001(4) CTC 746, in which this Court in answering the issue as to whether the servant of authorised dealer can be punished and convicted after authorised dealer has been acquitted of offence, held as follows:-
Essential Commodities Act, 1955, Section 7(1)a(ii) - Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, Rules 6(3) and 14(1)a(c) - Prosecution under Rule 6(3) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 - Offence relates to supply of scheduled commodities by authorised dealer to persons other than registered card-holders. Authorisied dealer found not guilty of offence and acquitted. Conviction of servant of authorised dealer is not permissible unless authorised dealer is found guilty of offence. Conviction of servant of authorised dealer by Trial Court set aside as illegal and fine amount already collected directed to be refunded to servant of authorised dealer.
25. Learned counsel for the appellant in Crl.A.No.338 of 1998 and the learned counsel for the appellant in Crl.A.No.194 of 1998 have also argued in the same line as argued by the learned counsel for the appellants in Crl.A.Nos.342, 343, 381, 382, 384, 415, 576 and 790 of 1998.
26. The learned counsel for the appellant in Crl.A.No.456 of 1998 reiterating the same argument as argued by the learned counsel for the appellants in Crl.A.Nos.342, 343, 381, 382, 384, 415, 576 and 790 of 1998 also submitted that there have been material contradictions and discrepancies in the evidence of P.W.1, Deputy Registrar(PDS), who made the complaint against the accused and P.W.2, Sub Registrar(PDS), who verified the records of the ration shop, in which A2 was the salesman and also in the evidence of P.W.10, Deputy Registrar(PDS) and P.W.11, who received the complaint against the accused and P.W.12, Investigation Officer and then it is submitted that the conviction solely on the basis of P.Ws.3 to 9, the ration chard holders and who turned hostile is improper, inasmuch as A1 in that case has been acquitted on such evidence.
27. Learned Government Advocate (Criminal side) submitted that considering the evidence of P.Ws.1 to 5 in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 4 of 1995, 11 of 1995, 24 of 1995 and 2 of 1996, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 415, 576, 790 and 194 of 1998; P.Ws.1 to 4 in S.T.C.No.97 of 1991, subject matter of the appeal in Crl.A.No.338 of 1998 and P.Ws.1 to 12 in S.T.C.No.15 of 1995, subject matter of the appeal in Crl.A.No.456 of 1998, examined on the side of the prosecution and also the evidence of D.Ws.1 and 2, ration card holders in S.T.C.No.24 of 1995, subject matter of the appeal in Crl.A.No.790 of 1998, examined on the side of the accused and also the Exhibits marked on the side of the prosecution, more particularly, the ration cards and the statements of the ration card-holders marked in each of the cases, the trial Courts rightly recorded finding that A2 as the Bill Clerk in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 11 of 1995 and 24 of 1995, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 576 and 790 of 1998 and as Salesman in S.T.C.Nos.15 of 1995 and 194 of 1998, subject matter of the appeals in Crl.A.No.456 and 194 of 1998; A3 as Packer in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 11 of 1995 and 24 of 1995, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 576 and 790 of 1998; A2 as Packer in S.T.C.Nos.4 of 1995 and 97 of 1991, subject matter of the appeals in Crl.A.Nos.415 and 338 of 1998; and A2 as Salesman in S.T.C.Nos.15 of 1995 and 2 of 1996, subject matter of the appeals in Crl.A.Nos.456 and 194 of 1998, have committed malpractice by preparing bogus bills and supplied essential commodities, viz., rice, sugar, wheat, kerosene and palmolein oil to the non-card holders and made entries as if the said items were supplied to the registered card-holders and accordingly found them guilty, convicted and sentenced as set out above and acquitted A1 in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 4 of 1995, 15 of 1995, 24 of 1995, 97 of 1991 and 2 of 1996, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 415, 456, 790, 338 and 194 of 1998 that he is only authorised dealer and no case is made out against him as per separate judgment mentioned above. But, however, in S.T.C.No.11 of 1995, subject matter of the appeal in Crl.A.No.576 of 1978, the trial Court convicted A1, the authorised dealer besides, A2 Bill Clerk and A3 packer, setting out the same reasons by convicting both the said accused. It is also submitted by the learned Government Advocate that though in S.T.C.No.15 of 1995, the ration card-holders examined as P.Ws.3 to 9, turned hostile, considering the statements Exs.P-15 to 24 of the said ration card-holders and also the ration cards Exs.P-2 to P-11, the trial Court, rightly found A2 and A3 are guilty. Therefore, according to the learned Government Advocate, such findings, conviction and sentence in all the cases need not be disturbed.
28. In all these cases, the Inspector of Audit, Superintendents, Co-operative Sub Registrars, Taluk Supply Officer and Special Revenue Inspector, inspected the ration shops and also relevant registers in respect of the relevant periods have filed reports, of which reports, the case of prosecution is rested. However, the said reports which are material documents, touching the guilt of the accused have not been marked and as such, an adverse inference is to be drawn under Section 114(g) of Indian Evidence Act.
29. As rightly submitted by the learned counsel for the appellants though the statements of the ration card-holders relating to the cases in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 4 of 1995, 11 of 1995, 97 of 1991 and 2 of 1996, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 415, 576, 338 and 194 of 1998, have been recorded, the ration card-holders have not been examined. Further, the ration card-holders P.Ws.3 to 9 in S.T.C.No.15 of 1995, subject matter of the appeal in Crl.A.No.456 of 1998, though have been examined, they turned hostile not supporting the case of prosecution, and they have stated that they have received the essential commodities as entered in the ration cards. In S.T.C.No.24 of 1995, subject matter the of the appeal in Crl.A.No.790 of 1998, the ration card-holders were examined as D.Ws.1 and 2 and they have stated that they received ration commodities as per ration cards. Therefore, no credence can be attached to the statements said to have been recorded from the ration card-holders.
30. A3 in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 382 of 1992, 95 of 1991, 11 of 1995, 24 of 1995, subject matter of the appeals in Crl.A.Nos.342, 343, 381, 382, 384, 576 and 790 of 1998 and A2 in S.T.C.Nos.4 of 1995 and 97 of 1991, subject matter of the appeals in Crl.A.Nos.415 and 338 of 1998 are only packers and as such, they are nothing to do with the preparation of the bills and making entries in the concerned registers or in the family cards.
31. Merely because, the amounts said to have been misappropriated by A2 and A3 have been settled by making payment in respect of the loss alleged to have been caused to the Government, no inference can be drawn that the accused have committed the offence in respect of the charges levelled against them.
32. As rightly argued by the learned counsel for the appellants inasmuch as the main accused A1 in Crl.A.Nos.342, 343, 381, 382, 384, 415, 456, 790, 338 and 194 of 1998, viz., the authorised dealer has been acquitted, the conviction of the co-accused A2 and A3 cannot be said to be proper, as held by this Court in 2001(4) CTC 746 (cited supra) and such conviction is not permissible.
33. In short, the non-examination of the registered ration card-holders, whose statements have been recorded and the ration cards issued to them allegedly have been seized, cuts the route of the prosecution case, in that, there is nothing to show that the said registered ration card-holders were not supplied with the essential commodities as per the ration cards and instead they were supplied to the persons, viz., non-card-holders.
34. The definite stand taken by the accused is that as per the entries made in the ration cards, which have been marked, the essential commodities have been supplied only to the registered card-holders and omitted to make entries in the ration cards though bills were issued.
35. The trial Court failed to consider all these aspects in recording finding that the appellants are guilty in the cases subject matter of these appeals and as such, the findings, conviction and sentence imposed to the appellants have to be set aside.
36. In the result, all these appeals are allowed. The separate judgments of conviction and sentence imposed in S.T.C.Nos.27 of 1995, 55 of 1992, 56 of 1992, 54 of 1992, 95 of 1991, 4 of 1995, 11 of 1995, 24 of 1995 and 97 of 1991 by the Special Court (EC Act), Chennai, and in S.T.C.Nos.15 of 1995 and 2 of 1996 by the Special Court (EC Act), Salem, are set aside. The fine amounts paid by the appellants are ordered to be refunded to them.