Chattisgarh High Court
Mahendra Agrawal vs State Of Chhattisgarh 2 Crr/796/2018 ... on 3 April, 2019
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.138 of 2013
Order Reserved on : 11.1.2019
Order Passed on : 3.4.2019
Mahendra Agrawal, S/o Babulal Agrawal, aged about 30 years, R/o
Tendukona, Police Station Pithoura, District Mahasamund, Chhattisgarh
---- Applicant
versus
State of Chhattisgarh through Station House Officer, Police Station Pithoura,
District Mahasamund, Chhattisgarh
--- Respondent
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For Applicant : Ms. Soumiya Sharma, Advocate on behalf of Mrs. Fouzia Mirza, Advocate For Respondent : Shri Alok Nigam, Government Advocate
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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. This revision has been preferred against the judgment dated 20.2.2013 passed by the 1st Additional Sessions Judge, Mahasamund in Criminal Appeal No.58 of 2010 arising out of the judgment dated 16.2.2010 passed by the Judicial Magistrate First Class, Pithoura, District Mahasamund in Criminal Case No.241 of 2009, whereby the Judicial Magistrate First Class has convicted the Applicant under Section 3/7 of the Essential Commodities Act and sentenced him with rigorous imprisonment for 1 year and with fine of Rs.1,000/- with default stipulation. The Appellate Court has affirmed the judgment of the Trial Court and dismissed the appeal.
2. Case of the prosecution, in brief, is that on 22.7.2008, Senior Agriculture Development Officer and Fertilizer Inspector Tukaram Kathane (PW1) received information to the effect that without a 2 licence some fertilizers are being sold to the farmers from the godown of Vijay Kirana Stores at Village Tendukona. On the basis of the information, he along with other officers reached to Vijay Kirana Stores. At that time, Babulal Agrawal, father of the Applicant was sitting in that kirana stores. On being asked from him to show a licence for selling fertilizers, he refused to show any licence and also refused to get his godown inspected. In the light of a torch, they looked into the godown and saw there gunny bags of fertilizers. Thereafter, a written information was given to Police Station Pithoura. Thereafter, on 22.7.2008 itself, at about 12:00 O'clock in the night, police officers, Tahsildar and other officers reached to the spot and found that gunny bags of manure were being loaded in a metador bearing registration No.CG 06 B 1882. 91 gunny bags of single super-phosphate were found in the metador. 189 gunny bags of single super-phosphate, 10 gunny bags of potash IPL, 3 gunny bags of potash PPL, 17 gunny bags of urea kribhko, 81 gunny bags of urea iffco and 2 gunny bags of single super-phosphate bio, total 302 gunny bags of fertilizers were found in the godown. 5 samples of the fertilizers kept in the godown were taken out for analysis. Samples and panchnamas were prepared at the spot. An offence under Section 3/7 of the Essential Commodities Act was registered. Statements of witnesses were recorded. On completion of the investigation, a charge-sheet was filed before the Judicial Magistrate First Class. Charge was framed against the Applicant under Section 3/7 of the Essential Commodities Act. As many as 9 witnesses were examined by the prosecution. In his statement recorded under Section 313 of the Code of Criminal Procedure, the Applicant denied the guilt. No witness has been examined in defence of the 3 Applicant. After trial, the Trial Court convicted and sentenced the Applicant and the Appellate Court affirmed the judgment of conviction and sentence as mentioned in the first paragraph of this order. Hence, this revision.
3. Ms. Soumiya Sharma, Learned Counsel appearing for the Applicant submitted that the Court below has failed to appreciate that at the time of inspection, the Applicant was not present at the spot. At that time, his father Babulal Agrawal and brother Vijay Agrawal were present there and in place of implicating them, the Applicant has been prosecuted by the prosecution. She further submitted that both the Courts below have failed to appreciate that Investigating Officer D.S. Rajput (PW9) has categorically admitted the fact that there is no evidence to the effect that the Applicant collected the fertilizers or sold the same. The Investigating Officer has also categorically admitted the fact that Vijay Kirana Stores as well as the godown were in the ownership of Vijay Agrawal, brother of the Applicant. There is no documentary evidence available on record on the basis of which it could be established that the said godown, Vijay Kirana Stores and the metador in which the fertilizers were being loaded were of ownership or possession of the present Applicant. Therefore, the judgments of the Courts below are contrary to the evidence available on record. Thus, the Applicant is entitled to get acquittal.
4. Shri Alok Nigam, Learned Government Advocate appearing for the State/Respondent opposed the contentions raised on behalf of the Applicant and supported the impugned judgment.
5. I have heard Learned Counsel appearing for the parties and 4 perused the records of the Courts below with due care.
6. Lalsai (PW2), Bharatlal (PW3), Shatrughan (PW4) and Sampat (PW5) are independent witnesses of the prosecution, but they did not support the case of the prosecution. The case of the prosecution is only based upon the statement of Tukaram (PW1), H.R. Dewangan (PW6), Banshilal (PW7), Vinod Kumar Verma (PW8) and D.S. Rajput (PW9).
7. Tukaram (PW1) has stated that in the night at about 12:00 O'clock, when he reached at the spot, at that time, fertilizers were being loaded in a metador. The Applicant was present there. He has further stated that fertilizers were seized from the godown and metador. H.R. Dewangan (PW6) has also stated in similar fashion. This witness has also stated that at the time of incident, the Applicant was present there. Contrary to this, both Banshilal (PW7) and Vinod Kumar Verma (PW8) have categorically deposed that at the time of incident, the Applicant was not present at the spot. The Applicant was present at the spot at the time of incident has not been stated by Tukaram (PW1) and H.R. Dewangan (PW6) in their diary statements. Even if for the sake of argument it is accepted that the Applicant was present at the spot at the time of incident, no evidence has been led by the prosecution that the Applicant got the fertilizers kept in the metador or in the godown. The godown, Vijay Kirana Stores and the metador were in ownership or in possession of the Applicant, no documentary evidence has been led by the prosecution to this effect nor has any document been collected in this regard by them.
8. Bharatlal (PW3) has stated that the godown belongs to Babulal 5 Agrawal, father of the Applicant. Babulal Agrawal has not been impleaded in this case. From the above it is clear that the only evidence available on record against the Applicant is that at the time of incident, he was present at the spot, but the statements of the witnesses recorded are contradictory in this regard. Mere presence of the Applicant at the spot at the time of incident does not establish that the Applicant was in ownership or in possession of the godown, Vijay Kirana Stores or metador. There is nothing on record to establish that the Applicant got the fertilizers kept in the godown or in Vijay Kirana Stores or got the fertilizers loaded in the metador. Therefore, the finding of conviction of the Applicant arrived at by the Courts below is contrary to the evidence available on record. Hence, the conviction and sentence imposed upon the Applicant is perverse and is not sustainable.
9. Consequently, the instant revision is allowed. The conviction and sentence imposed upon the Applicant is set aside. The Applicant is acquitted of the charge framed against him.
10. Records of the Courts below be sent back along with a copy of this order forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal