Punjab-Haryana High Court
Jagjiwan Lal vs The State Of Punjab on 19 July, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-551-SB-2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-551-SB-2001
Date of decision: 19.07.2011
Jagjiwan Lal
...... Appellant
Versus
The State of Punjab
..... Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Denesh Goyal, Advocate, for the appellant.
Mr. S.S. Chandumajra, Deputy Advocate General, Punjab.
JORA SINGH, J.
Jagjiwan Lal, preferred this appeal to challenge the judgment of conviction and order of sentence dated 9.4.2001, rendered by the learned Special Judge, Sangrur, in Sessions Case No. 55 dated 29.8.1995, arising out of FIR No. 94 dated 12.12.1994, registered under Section 7 of the Essential Commodities Act (hereinafter referred as 'the Act') at Police Station Sherpur.
By the said judgment, he was convicted under Section 7 of the Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month.
Prosecution story, in brief, is that Darshan Singh, Deputy CRA-S-551-SB-2001 -2- Director, Diary Development, Ludhiana, Prem Chand, Diary Development Inspector Grade-II, Khanna and Bhajan Singh, Diary Development Inspector, Grade-II, Samrala, on 22.9.1994 at about 4.00 p.m. had raided the premises of M/s Singla Kiryana Store, Sherpur, for taking the samples of the compound cattle feed. 15 bags each weighing 45 Kg containing cattle feed were found stored in the kiryana store. Two bags were selected for sample purposes. Sample from each bag was drawn from the top, middle and bottom and was spread on the newspaper sheet and was mixed thoroughly. Three samples each weighing 400 grams of cattle feed were filled in three separate polythene bags and were made air tight and were stitched by making two or three folds at the top. Seizure report was prepared. Polythene bags were further transferred into three cloth bags and tied with a string made of jute and were properly sealed on all the four sides and after returning to the office one sample was handed over to Dalip Raj, official of the office of Deputy Director, Diary Development, Ludhiana, for depositing the same in the office of Chief Chemist-cum-Incharge, Government Analyst, Sangrur. Dalip Raj, obtained receipt from the concerned laboratory. As per report of the laboratory, contents of the sample were found to be of sub-standard. After receipt of report from the Government Analytical Laboratory, as per letter dated 24.11.1994, Ex. PA, case was registered under Section 7 of the Act, for violation of the Punjab Regulation of Compounded Cattle Feed Concentrate and Mineral Mixture Order, 1988 (for short-'the Order'), issued under Section 3 of the Act. After completion of investigation, challan was presented in CRA-S-551-SB-2001 -3- Court.
Accused was charge-sheeted under Section 7 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Purshotam Lal, Deputy Director, Diary Development, stated that complaint Ex. PA, was sent to the police to register case.
PW-2 Darshan Singh, Deputy Director, Diary Development, Ludhiana, stated that he along with Prem Chand, Diary Development Inspector Grade-II, Khanna and Bhajan Singh, Diary Development Inspector, Grade-II, Samrala, had raided the premises of M/s Singla Kiryana Store, Sherpur. 15 stitched bags each weighing 45 kg cattle feed were found stored in the store. Two bags were selected and from those two bags, three samples each weighting 400 grams were separated. Seizure memo Ex. PB was prepared and as per report of the laboratory samples were found to be of sub-standard.
PW-3 Bhajan Singh, Diary Development Inspector, stated that he was with the raiding party headed by Darshan Singh (PW-2). He has supported the version of Darshan Singh, as to how samples were drawn from the cattle feed bags.
PW-4 Dalip Raj, employee of the office of Deputy Director, Diary Development, Ludhiana, stated that on 23.9.1994 at about noon, two samples were handed over to him and the same were deposited in the laboratory on the same day.
PW-5 SI Gopi Chand and PW-6 Inspector Piara Singh, CRA-S-551-SB-2001 -4- have partly investigated the case.
PW-7 Madan Lal Garg, Chief Chemist-cum-Incharge Government Analytical Laboratory, Sangrur, proved his report Ex. PG. As per report, samples were found to be of sub-standard.
After close of the prosecution evidence, statement of the appellant under Section 313 Cr.P.C. was recorded. Appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the appellant was that he was not running any shop at Sherpur.
In defence, DW-1 Satvir Singh, UDC, Income Tax Department, Malerkotla, brought the summoned record and stated that Pawan Kumar is the sole proprietor of M/s Singla Kiryana Store, Sherpur. Income-tax return was filed in the year 1992-93 to 1996-97.
DW-2 Pawan Kumar, stated that he is the sole proprietor of M/s Singla Kiryana Store, Sherpur. Jagjiwan Lal-appellant is his real brother. He has no concern with the business being carried out by him in the name and style of M/s Singla Kiryana Store.
DW-3 Ramesh Kumar, stated that he is the proprietor of M/s Laxmi Trading Company, Sherpur and this company had dealings with M/s Singla Kiryana Store. Pawan Kumar, is the sole proprietor of M/s Singla Kiryana Store. Ex. D-1 to D-3 were issued by M/s Laxmi Trading Company in favour of M/s Singla Kiryana Store, Sherpur.
DW-4 Parveen Kumar, states that he is the proprietor of M/s Jain Tea Traders, Dhuri and this firm had dealings with M/s Singla Kiryana Store, Sherpur. Vide bill copy of which is Ex. D-4, articles were CRA-S-551-SB-2001 -5- purchased by M/s Singla Kiryana Store. Pawan Kumar, is the sole proprietor of M/s Singla Kiryana Store.
DW-5 Mukesh Kumar, stated that he is owner of M/s Bajran Tea House, Dhuri and brought the bill book. As per different bills, copies of which are Ex. D-5 and Ex. D-6, material was purchased by M/s Singla Kiryana Store, Sherpur. Pawan Kumar, is the sole proprietor of M/s Singla Kiryana Store.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that according to the prosecution story on 22.9.1994 at about 4.00 p.m., Darshan Singh, Deputy Director, Diary Development, Ludhiana, along with two inspectors namely Prem Chand and Bhajan Singh, had raided the premises of M/s Singla Kiryana Store, Sherpur. 15 bags each weighing 45 Kg of cattle feed were found stored in the store. Two bags were separated for taking the sample and from those bags three samples each weighing 400 grams of cattle feed were drawn and as per report of the laboratory samples were found to be of sub standard but link evidence is missing because samples were drawn on 22.9.1994 at about 4.00 p.m. but no evidence on the file where the samples were CRA-S-551-SB-2001 -6- kept by Darshan Singh, Deputy Director, Diary Development, Ludhaina. No record that on 23.9.1994, two samples or one sample was handed over to Dalip Raj, with a direction to deposit the same in the laboratory. Darshan Singh, Deputy Director, when appeared in Court then admitted that no bill was taken into possession. No receipt was obtained from the appellant. Darshan Singh, further stated that one sample was handed over to Dalip Raj whereas Dalip Raj stated that two samples were handed over to him for deposit in the laboratory. According to the evidence, each sample was weighing 400 grams but this fact is not correct one. Complaint is silent as to how samples were drawn. Stitched bags were found stored in M/s Singla Kiryana Store, Sherpur but no evidence from where the bags were purchased. Manufacturer was not challaned. When the stitched bags were found stored and appellant is not the manufacturer then manufacturer should have been challaned along with the appellant. Ex. PH is the copy of the notification dated 24.2.1988. Form-I is the part of Ex. PH but Form-I was non- existent at the time of raid. On the basis of Form-I, which is the part of Annexure-PH appellant cannot be held liable as per report of laboratory.
10-15 persons were present at the spot as per Darshan Singh, Deputy Director, Diary Development, Ludhiana, but no one was requested to sign any document. If independent witness had refused to sign the seizure memo then a note should be given in the seizure memo that independent witness present at the spot had refused to sign the seizure memo. When the stitched bags of cattle feed were found stored in the shop of M/s Singla Kiryana Store then manufacturer should have CRA-S-551-SB-2001 -7- been challaned but no explanation why manufacturer was not challaned. Jagjiwan Lal-appellant was challaned but he was not the sole proprietor of M/s Singla Kiryana Store. Infact he is the brother of Pawan Kumar, who was the sole proprietor of M/s Singla Kiryana Store but Pawan Kumar, was not arrested in this case. No explanation, why he was not challaned. DW-1 Satvir Kumar, employee of Income Tax Department as per record stated that Pawan Kumar, was the owner of M/s Singla Kiryana Store. Bills Ex. D-1 to Ex. D-6, were proved by DW- 3 Ramesh Kumar, DW-4 Parveen Kumar and DW-5 Mukesh Kumar. Bills shows that Pawan Kumar is the sole proprietor of M/s Singla Kiryana Store. Jagjiwan Lal-appellant had no concern with M/s Singla Kiryana Store. When evidence is doubtful as to whether one sample parcel was handed over or two sample parcels were handed over to Dalip Raj, for deposit in the laboratory and no record was maintained by the office of Deputy Director, Diary Development, Ludhiana, as to where sealed parcels were kept shows that report of the laboratory is without any evidentiary value particularly when sole proprietor of M/s Singla Kiryana Store and manufacturer were not challaned without any reason.
Learned State counsel argued that appellant was the sole proprietor of M/s Singla Kiryana Store. In case, he had no concern with the abovesaid kiryana store then no idea to be present at the time of raid. Appellant could easily sign the documents by saying that he has no concern with M/s Singla Kiryana Store, infact his brother Pawan Kumar, is the sole proprietor. Bills were not taken into possession because proprietor of M/s Singla Kiryana Store, was not maintaining CRA-S-551-SB-2001 -8- account books. Bills Ex. D-1 to D-6 are without any evidentiary value because account books including cash books were not brought. Secondly, receipts, Ex. D-1 to D-6. were not signed by the appellant or Pawan Kumar.
First submission of the learned counsel for the appellant is that story is doubtful as to how sample was drawn. Ex. PB is the seizure memo but in Ex. PB not a word as to how samples were drawn and what was the weight of each sample. After going through the evidence on file, I am of the opinion that submission of the learned counsel for the appellant seems to be correct one.
Darshan Singh, Deputy Director, Diary Development, Ludhiana, along with two Diary Development Inspectors on 22.9.1994 at about 4.00 p.m. had raided the premises of M/s Singla Kiryana Store, Sherpur and at the time of raid 15 stitched bags were found stored in the kiryana store. Two bags were separated for sample purposes and from those two bags three samples each weighing 400 grams were drawn. Samples were drawn from the upper, central and lower portion of the bags. Material was spread on the newspaper and was made homogenous. Three samples each weighing 400 grams were separated and the samples were sealed separately. PW-2 Darshan Singh and PW-3 Bhajan Singh, also admitted that all the bags stored were found to be stitched and two stitched bags were separated. Darshan Singh and Bhajan Singh, have not stated a word as to how without spring balance or weighing scale each sample weighing 400 grams was separated. In case, approximately each sample was CRA-S-551-SB-2001 -9- weighing 400 grams they all these facts should have been mentioned in the seizure memo Ex. PB. Dharshan Singh and Bhajan Singh, stated that appellant was requested to sign the seizure memo but he had refused to sign the same. On 23.9.1994, one sample parcel was handed over to Dalip Singh, employee of the office of Deputy Director, Diary Development, Ludhiana, for deposit in the laboratory. In case, appellant had refused to sign the seizure memo then a note should have been given by Darshan Singh, Deputy Director, Diary Development, Ludhiana, that appellant was requested to sign the seizure memo but he refused to sign the same. As discussed earlier, three samples each weighing 400 grams were sealed separately but in Ex. PB not a word as to how samples were drawn and if drawn then what was the weight of each sample. Whether the weight was 400 grams or 500 grams or 200 grams. If samples drawn were of 400 grams each then whether the samples were sealed and to whom the seal after its use was handed over.
PW-2 Darshan Singh, Deputy Director, stated that only one sample was handed over to Dalip Raj whereas Dalip Raj stated that on 23.9.1994 at about noon time two samples were handed over to him for deposit in the laboratory that means story is not clear whether two samples were handed over to Dalip Raj or one sample was handed over to him for deposit in the laboratory. In case, one sample was handed over by Darshan Singh, then how Dalip Raj, received two samples on 23.9.1994, then whether he had deposited one sample parcel or two sample parcels in the laboratory. If he had deposited one CRA-S-551-SB-2001 -10- sample parcel in the laboratory then where the second sample parcel has gone. No record maintained by the office of Deputy Director, Diary Development, Ludhiana, that where the case property was kept by Darshan Singh. If one sample or two sample parcels were handed over to Dalip Raj then where is the third sample. Whether third sample is still with Darshan Singh or third sample is lying deposited in the office.
On 23.9.1994, sealed sample parcels were deposited in the laboratory by Dalip Raj (PW-4). Ex. PG is the report of the laboratory but report is silent as to who had deposited the sealed parcel in the laboratory and what was the seal impression of the seal used to seal the sample parcels. If Dalip Raj had deposited one or two sealed sample parcels in the laboratory then in the report Chief Chemist-cum- Incharge of Government Analytical Laboratory, Sangrur, should have mentioned that sealed sample parcel deposited was weighing 400 grams whereas report Ex. PG, shows that weight of the sample parcel was 560 grams.
As per PW-2 Darshan Singh, 10-15 persons were present at the spot and they were requested to sign the documents but they had refused. He had drawn the samples whereas PW-3 Bhajan Singh, stated that he along with Prem Chand had drawn samples.
In 2009 (1) RCR (Criminal) 399, "Shanker Dass Vs. State of Punjab", sample was sent to Chemical Examiner, after 6 days. Prosecution did not prove the sample was not tampered with. Independent witness present but not joined. Names of those persons were neither mentioned in the case diary nor in any of the documents, CRA-S-551-SB-2001 -11- prepared at the spot. Story is doubtful.
In 2005 (2) RCR (Criminal) 58, "State of Rajasthan Vs. Gurmail Singh", the seized articles were kept in the Malkhana for 15 days. Malkhana registered was not produced. Sample seal not sent to laboratory for the purpose of comparing with the seal appearing on the sample bottles. No evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. Accused was acquitted.
In the present case, no evidence on the file that the seal impression of the seal used was prepared and seal impression was sent to laboratory for comparison with the seal on the sample parcel. Independent witnesses were present but not a word in the complaint that they were requested to sign the seizure memo etc. but they had refused to sign. Record maintained by the office of Deputy Director, Diary Development, Ludhiana, was not brought to show where the case property was kept and on 23.9.1994, sample parcels were handed over to Dalip Raj for deposit in the laboratory. Report of the laboratory is silent as to who had deposited the sealed sample parcel and what was the impression of the seal used to seal the sample parcels. So, all this shows that story is doubtful as to how samples were drawn and sealed. Possibility of tampering with the case property cannot be ruled out.
As discussed earlier, 15 stitched bags were found stored in the shop of M/s Singla Kiryana Store, Sherpur. From two bags samples were drawn but in Clause 1 Part A of Schedule II of the Fertilizer (Control) Order, 1985, general requirements of sampling have been CRA-S-551-SB-2001 -12- given. It has been specified that in drawing the samples the following measures and precautions should be observed:-
1. General Requirements of sampling: In drawing samples, the following measures and precautions should be observed:
(a) samples shall not be taken at a place exposed to rain/sun;
(b) The sampling instruments shall be clean and dry when used;
(c) The material being sampled, the following instruments and the bag of sample should be free from any adventitious contaminations;
(d) To draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means;
(e) The sample should be kept in suitable, clean, dry and air tight glass or screwed hard polythene bottle of about 400 gm capacity or in a thick gauged polythene bag. This should be put in cloth bag which may be sealed with the inspector's seal after putting inside the detailed description as specified in Form 'J'.
Identifiable details may also be put on the cloth bag like sample No./code No. or any CRA-S-551-SB-2001 -13- other details which enables its identification;
(f) Each sample bag should be sealed air tight after filling and marked with details of sample, type and brand of fertilizer, name of order/manufacturer and the name of inspector who has collected sample.
2. In Clause 2 of Part A of Schedule II, procedure for taking sample from bagged material has been given. It reads as under:
2. Sampling from Bagged Material - (i) Scale of sampling - (a) Lot (for Manufacturers) - All bags in a simple consignment of the material of the sample grade and type drawn from a single batch of the manufacture shall constitute a lot. If a consignment is declared to consist of different bathes of manufacture, all the bags of each batch shall constitute a separate lot.
In the case of consignment drawn from a continuous process, 2000 bags (or 100 tonnes) of the material shall constitute a lot.
(b) Lot (for Dealers) - The lot is an Identifiable quantity of same grade and type of fertilizer stored at an Identifiable place subject to a maximum limit of 100 tonnes.
CRA-S-551-SB-2001 -14-The lot shall be identified by the Inspector based on visible appearance of bags, their packing and storage conditions. The stock of less than 100 tonnes with a dealer may also constitute one or more lots, if the material (fertilizer) of different sources and brand is available in such quantitates.
(c) Selection of bags for sampling - The number of bags to be chosen from a lot shall depend upon the size of the lot as given in the table below:
Lot size. (No. of bags) No. of bags to be selected for sampling (N) (N) XX XX XX XX All the bags of a lot should be arranged in a systematic manner. Start counting from any bag randomly, go on counting as 1, 2, 3 ----- up to r and so on, r being equal to the integral of N/n. Thus every rth bag counted shall be withdrawn and all bags shall constitute the sample bags from where the sample is to be drawn for preparing a composite sample.
(ii) Sampling from godowns/high stackings - If the procedure given in Para 2 (i) (c) is not possible to be adopted, the sample should be CRA-S-551-SB-2001 -15- drawn from the randomly selected fertilizer bags from different layers, from top and from all open sides in a zig zag fashion.
(iii) Sampling from small godowns - All the fertilizers bags of some grade and type of each manufacturer though received on different dates shall be segregated and property stacked. All bags of same grade and type of fertilizer manufactured by a particular manufacturing unit may be considered as one lot based on their physical conditions and the sample shall be drawn as per procedure laid down in paras. 2 (i) (c) and 4.
(iv) Sampling from damaged stock - (a) In case of torn on lumpy bags, damaged fertilizer bags or sweepings, the stock should be arranged according to identifiable lots. From each lot the number of bags shall be selected as per procedure (2) (i) (c) if the bags allow the use of sampling probe conveniently, the samples should be drawn by sampling probe.
(b) In case it is not possible to use the sampling probe, the bags may be opened and fertilizer material mixed together uniformaly by hammering the big lumps or putting pressure CRA-S-551-SB-2001 -16- if required, and then samples drawn by using suitable sample devise.
7. In Clause III and IV, further details have been specified for collection of sample. These clauses read as under:-
3. Sampling probe.
(i) An appropriate instrument to be used by the Inspectors for collection of a representative sample is called sampling probe. The probe may compromise of a slotted single tube with solid conetip made of stainless steel or brass. The length of the probe may be approximately 60 to 65 cms and the diameter of the true may be approximately 1.5 cm and the slot width may be 1.2 to 1.3 cms. The probe may be used if the physical condition of the fertilizers and the packing material permits its use.
4. Drawal of samples from bags:
(i) Drawal of sample and preparation of
composite samples. - Draw, with an
appropriate sampling instrument, (sampling probe) small portions of the material from the selected bags as per procedure in Paras 2 (i),
(b), 2 (ii), 2 (iii) and 2 (iv) (a). The sampling probe shall be inserted in the bag from one CRA-S-551-SB-2001 -17- corner to another diagonally and when filed with fertilizer, the probe is withdrawn and fertilizer is emptied in a container/or on polythene sheet/or on a clean hard surface and made into one composite sample.
(ii) If the bags do not permit the use of sampling probe empty the contents of the bags on level, clean and hard surface and draw a composite sample the process of quartering as described under Para 3 (iii) or 5.
But in the present case procedure followed to separate samples was not mentioned in seizure memo Ex. PB, prepared at the spot on 22.9.1994.
In 2007 (3) RCR (Criminal) "Hari Kishan Vs. State of Punjab" sample of fertilizer taken by Fertilizer Inspector but sample not taken as per procedure prescribed in Schedule II of Fertilizer Control Order.
In (1) Criminal Court Cases, 475 "Sham Lal Vs. The State of Haryana" held that sample was found to be of sub-standard. Not mentioned in the complaint at what time and in what manner the sample was taken sealed by Fertilizer Inspector. This was the requirement under Clauses 1 to 4 of Part A Schedule II of Fertilizer Control Order. This lacuna in the prosecution case could not be filled by giving details at a later stage. Inspector did not prepare the detail of sample in Form J as appended to Fertilizer Control Order. Conviction CRA-S-551-SB-2001 -18- set aside.
In Criminal Appeals No. 1232 and 1242-SB of 1999, titled A.K. Shahu Vs. State of Punjab and Amar Nath Vs. State of Punjab, respectively decided on 28.4.2010 by this Court, two samples of DAP fertilizer from the M/s Borawal Trading Company, Budhlada, were taken on 21.7.1992. Number of bags were found at the shop of M/s Borowal Trading Company, Budhlada. 850 grams of fertilizer was taken out from each of the bag as sample which was then spread on a polythene bag and after mixing the same, the same was separated into four parts and out of four parts, two parts were selected and after mixing them, the same was then divided into three parts to serve as sample then the Court opined that the sample was not drawn in accordance with the procedure as contained in para 5 of Schedule of the Fertilizer Control Order, 1985. Sample was not put in air tight glass container, rather it was put in a polythene bag. Appeal was accepted. Accused were acquitted of the charge levelled against them. When the sample was not drawn as per the Schedule of the Fertilizer Control Order, 1985, then prosecution story is to be ignored.
Next submission of the learned defence counsel for the appellant was that sample was taken from two stitched bags but manufacturer was not challaned. If we presume that appellant was a dealer even then he is not liable. Secondly Form-I which is the part of notification dated 24.2.1988, Ex. PH. Then with the omission of Form-I on the basis of which samples were drawn, report of the laboratory Ex. PG, is not helpful to the prosecution to hold that sample was CRA-S-551-SB-2001 -19- substandard. Submission of the learned defence counsel for the appellant seems to be reasonable one.
Form-I is the part of notification dated 24.2.1988, Ex. PH. As per report of the laboratory, there is a violation of the Order called the Punjab Regulation of Compounded Cattle Feed Concentrate and Mineral Mixture Order, 1988 but Form-I was omitted on 7.2.1989 but despite omission of Form-I on 7.2.1989, reliance was placed on Form-I by the Analyst in the report Ex. PG dated 11.10.1994. When proper procedure for sampling was not followed then appellant is to be acquitted if, it is presumed that he was the sole proprietor of M/s Singla Kiryana Store, Sherpur or he was a partner with Pawan Kumar, when the samples were drawn from two stitched bags.
In view of all discussed above, I am of the opinion that evidence on file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity or illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
For the reasons recorded above, appeal is accepted.
July 19, 2011 ( JORA SINGH ) rishu JUDGE