Bombay High Court
The State Of Maharashtra vs Shri. Parshuram Kashinath Mulunkar & ... on 5 February, 2020
Author: K.R.Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1015 OF 2003
The State of Maharastra )
(through Naupada Police Station )....Appellant
(Org. Complainant)
V/s.
1) Prashuram Kashinath Mulunkar )
Age : 49 years, R/at Majiwada, )
Ashirwad Niwas, Thane )
2) Champalal Anupchand Jain )
Age-41 years, R/at Azadnagar, Gokhale )
Road, Mulund (E), Mumbai )....Respondent
(Org.Accused Nos.1 & 2)
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Ms Pallavi Dabholkar APP for appellant
Ms Ridhi Nyati appointed as amicus curiae
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CORAM: K.R.SHRIRAM,J
DATE : 5.2.2020
ORAL JUDGMENT:-
1. This is an appeal impugning an order of acquittal dated 17.3.2003 under which the accused were acquitted of offences punishable under Section 3(2)(g) with section 7 & 8 of Essential Commodities Act 1955.
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2. Since nobody was representing the respondents, this Court appointed Ms. Ridhi Nyati an advocate as amicus curiae. Before I proceed with the case, I must express my appreciation for the assistance rendered by Ms Ridhi Nyati, learned amicus curiae.
3. Facts in brief are, that complainant Kishor Chandrakant Pasalkar, PW-2 who was attached to Crime Branch as Police Sub Inspector received an information at about 15.00 hrs on 16.3.1997 that one Champalal Jain (accused no.2) through his agent Parshuram Mulunkar (accused no.1) was carrying some household gas cylinders unauthorisedly by a tempo bearing No.MH-04-S-5224 owned by Parshuram (accused no.1). Tempo will be moving from Bhiwandi to Mulund carrying illegal gas cylinders. Therefore, PW-2 called two panchas (which included P.W.-1) and along with other members of his staff went to Mulund Agra Road near Golden Dyes Company Naka in a private vehicle. At the naka, they got down and waited for the target vehicle. At about 3.45 p.m. target vehicle arrived and PW-2 waved accused no.1 to stop the vehicle. Accused no.1 stopped the vehicle and he was asked what was he carrying and he replied saying he was carrying house hold gas cylinders and he had no permission or documents for that.
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4. It seems accused no.1 also informed PW-2 and others that he was carrying gas cylinders for Champalal,accused no.2. Thereafter the vehicle along with the seized cylinders was taken to crime branch office. Subsequently, PW-2 along with accused no.1, panch witness PW-1 and one more panch witness who has not been examined and few others went to Bhiwandi and accused no.1 took them to a godown. When they reached, they found PW-2 there, who admitted that he was storing illegal gas cylinders and in the godown they found 10 gas cylinders, 10 regulators etc. Accused no.2 informed the raiding party that his other godown is in Mulund and he took the raiding party to Mulund. When they reached the godown at Mulund, accused no.2 opened the door of the godown with his key and inside they found 139 gas regulators belonging to Hindustan Petrolium Company Ltd. (HPCL) and 178 gas regulators belonging to Bharat Petrolium Company Ltd. (BPCL). All these regulators were seized and later given to PW-4 Sanjiv Chowdhary for safe keeping. PW-4 is an employee of HPCL. It is not clear whether PW-4 was given custody of even those cylinders and regulators belonging to BPCL. Nobody knows where they are and nothing has come on record.
5. A police complaint was lodged by PW-2 and he was also appointed as the Investigating officer. Charges were framed and the KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 4/15 207.Cr.Apeal1015.2003.doc accused pleaded not guilty and claimed to be tried.
6. The case of the defence is total denial and in fact they even denied that there was any raid or cylinders or regulators were confiscated from their possession.
7. To drive home their point, prosecution led evidence of panch witness, Manoj Salvi as (PW-1); Investigating officer Kishor Chandrakant Pasalkar who is also the complainant as (PW-2); Parshuram Maruti Kumbhar who is a police witness and who was part of the raiding party as (PW-3); and Shivram Chaudhari, who is the Executive Sales officer of HPCL to whom cylinders were given for safe custody as (PW-4).
8. PW-4 in his evidence states he went with a tempo and took 149 gas regulators and 30 gas cylinders in to his custody and kept it in HPCL godown. We have to note that what was seized from Mulund was 139 regulators. From the tempo police seized 20 gas cylinders (which make is not clear). In Bhiwandi police seized 10 gas cylinders and 10 regulators and the name is not clear. In Bhiwandi police seized 178 regulators of BPCL and 139 regulators of HPCL.
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9. The trial court after considering the evidence and documents, passed the impugned judgment and order dated 17.3.2003.
10. I have to note that the impugned judgment is devoid of any particulars. The trial court has acquitted the accused on the basis of contradictions and omissions without listing any of them by simply making general statements. Of course, I agree with the learned APP that the judgment therefore, suffers from perversity.
At the same time, it is also settled law that an Appellate Court has full power to review, re-appreciate and reconsider the evidence, upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts no limitations, restrictions or conditions on exercise of such power and the Appellate Court on the evidence before it may reach its own conclusions, both on conclusions of fact and of law.
11. Therefore, with the assistance of learned APP and Ms Ridhi Nyati, amicus curiae, I have reviewed the evidence and all documents. I also arrive at the same conclusion that the prosecution has not proved its case beyond reasonable doubt for the reasons as recorded below.
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12. The panch witness PW-1 states that on 16.3.1997 he with his friend Gholap, the other panch witness, went on motor vehicle from Kalwa to Wagle Estate and near crime branch office, Pasalkar (PW-2) stopped them and asked them whether they will be willing to act as panch and they agreed.
PW-2, however, says that he called the two panchas personally and explained them about the information when they agreed to act as panch. He does not say how he met them.
13. The information, as stated by PW-2, was received at 15.00 hrs. about accused no.2 having sent unauthorized gas cylinders in the tempo of accused no.1. PW-2 says after he called the panch witnesses, entered the information in the movement register, explained to the panch witnesses the information that he has received and along with 2 panchas and 5 police staff went to High way near Golden Dyes Company by a private vehicle and at about 3.45 p.m. they found tempo driven by accused no.1. The entire exercise according to PW-2 was done in 45 minutes, which is impossible to believe. The movement register has not been produced. Which is the private vehicle and whose private vehicle was used to go to the High way near Golden Dyes has not been given.
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In cross-examination PW-2 says they do not make entries of this private vehicle anywhere. After accosting accused no.1 from the high way, PW-2 says the vehicle with the 20 gas cylinders was brought to the crime branch Thane. What happened to the vehicle thereafter, nobody knows. Even the ownership document regarding the vehicle has not been produced. Nothing stopped PW-2 from taking possession of the ownership documents or call upon accused no.1 to produce the documents and if there was non co-operation, get the documents from the concerned RTO to prove PW-1 owned the vehicle. Therefore, there is no evidence to prove that vehicle was owned by Parshuram-accused no.1.
Thereafter accused no.1 is supposed to have taken PW-1, PW-2 and PW-3 to the godown at Bhiwandi where accused no.2 was found in possession of the godown. Panchanama says 15 gas cylinders were seized at Bhiwandi but the charge and witnesses say only 10 cylinders were found at Bhiwandi. PW-1 says after accused no.1 was accosted and the tempo with gas cylinders was seized, they went in the same tempo to Bhiwandi. PW-2 says they dropped off the tempo and 20 gas cylinders at Thane crime branch and went to Bhiwandi in a private jeep.
PW-1 says 10 gas cylinders plus 10 regulators plus 1 high pressure machine was found at Bhiwandi but PW-2 says 10 gas KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 8/15 207.Cr.Apeal1015.2003.doc cylinders plus 10 regulators plus 10 high pressure regulators were found in Bhiwandi.
As against this, PW-3 who was also part of the raiding party, says 10 gas cylinders plus 10 regulators plus 2 pressure pipes were found in Bhiwandi. The complaint says 10 gas cylinders plus 10 regulators plus 2 pressure pipes were found at Bhiwandi and as noted earlier panchanama says 15 gas cylinders were found at Bhiwandi.
Complaint says 149 HPCL gas regulators plus 1 high pressure regulator were found at Mulund but rest say in the evidence 139 HPCL gas regulators and nobody talks about high pressure regulator.
14. Strangely, only PW-3 mentions that accused no.1 told them that 20 gas cylinders were supplied at Mulund in the same morning. PW-1 and PW-2 do not say the same and no inquiry also has been made as to where those 20 gas cylinders were supplied and to whom. Moreover, only PW-3 states they received information that even the godown was taken over from one Gupta on tenancy basis by accused no.2. Complaint filed also mentions of this.
PW-2 does not say in his deposition about that. PW-2 says when he inquired about the ownership of the godown, accused no.2 refused to give the details of the ownership of the godown but KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 9/15 207.Cr.Apeal1015.2003.doc panchanama says that accused no.2 said the Bhiwandi godown is in the name of his partner Shantiraj Jeevraj.
15. I have to also note that charge is only relating to 139 regulators of HPCL and 178 regulators of BPCL and the charge is totally silent as to what happened to the 10 regulators which were found at Bhiwandi and the vehicle.
16. The people in the neighborhood of Mulund godown or Bhiwandi godown have not been examined. PW-3 says the owner of Bhiwandi godown, has not been investigated or no statement has been recorded. Shantiraj Jeevraj who, accused no.2 says, was his partner and who owned Bhiwandi godown, has not been investigated or his statement recorded.
17. There is no evidence also recorded of anybody from either HPCL or BPCL to prove that the cylinders/regulators were illegally being distributed.
18. The panchanama also records that accused no.1 stated the tempo belongs to one Ravindra P.Patil, resident of Bhopada village from whom he has taken the tempo at Rs.1400/- per month but none KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 10/15 207.Cr.Apeal1015.2003.doc of the witnesses disclose this statement of accused no.1 as noted in the panchanama.
19. Learned APP submitted that under Section 10-C of the Act, in any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that. Prosecution, Learned APP submitted that, therefore, the fact that 20 gas cylinders were found in a tempo in the possession of accused no.1 and the fact that 10 gas cylinders plus 10 regulators plus 317 regulators were found in possession of accused no.2 in Bhiwandi and Mulund respectively, shows a culpable mental state on the part of the accused and therefore, onus is on the accused to prove that no such mental state with respect to the Act charged as an offence existed. Learned APP submitted that the accused have miserably failed to discharge that burden.
20. The answer to the submission made by learned APP can be found in sub-section 2 of section 10-C. It says for the purposes of this section, a fact is said to be proved only when the Court believes it to KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 11/15 207.Cr.Apeal1015.2003.doc exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
21. There are too many loopholes, omissions and contradictions. Therefore, I cannot conclude that the prosecution has proved beyond reasonable doubt that accused no.1 was caught red handed driving a tempo containing 20 illegal household gas cylinders and accused no.2 was found with gas cylinders and regulators as mentioned in the charge. Moreover, it is settled law that unless prosecution first discharges its burden, the question of presumption does not arise.
22. Learned APP also relies on section 14 of the Act to submit that the burden was on the accused to prove that they had such authority, permit, license etc. to do any act or being in possession of the gas cylinders and regulators. Section 14 reads as under :-
"14. Burden of proof in certain cases - Where a person is prosecuted for contravening any order made under section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, license or other document, the burden of proving that he has such authority, permit, license or other document shall be on him."
23. In my view, the presumption is rebuttable and the onus is on the accused only to raise the probable defence. In similar provisions KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 12/15 207.Cr.Apeal1015.2003.doc under Sections 118(a) and 139 of the Negotiable Instruments Act, the Apex Court in Basalingappa V/s. Mudibasappa1 summarized the principles enumerated by the Apex Court in many matters dealing with presumption of liabilities. Paragraph 25 of the said judgment reads as under :
25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
24. Therefore, the standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused 1 (2019) 5 SCC 418 KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 13/15 207.Cr.Apeal1015.2003.doc to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence.
25. Before the burden shifts on the accused, prosecution has first to prove that the gas cylinders / regulators were found in possession of the accused which as noted earlier, prosecution has failed. Therefore, the time for the burden to shift under section 14 did not arise.
26. The Apex Court in Chandrappa & Ors. V/s. State of Karnataka 2 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under :
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal
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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
27. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Sessions Court in Appeal KJ ::: Uploaded on - 10/02/2020 ::: Downloaded on - 22/03/2020 07:24:12 ::: 15/15 207.Cr.Apeal1015.2003.doc rightly observed that the prosecution had failed to prove its case.
28. In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, need not be interfered with.
29. Appeal dismissed.
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