Punjab-Haryana High Court
Shambu Dayal And Another vs State Of Haryana on 19 March, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 153-SB of 1996
Date of Decision : March 19, 2010
Shambu Dayal and another
.....Appellants
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR JUSTICE T.P.S. MANN
Present : Mr. Raman B. Garg, Advocate
Ms.Hem Lata Balhara, Assistant Advocate General, Haryana
T.P.S. MANN, J.
Aggrieved of the judgment and order dated 29.1.1996 passed by Special Judge, Bhiwani, whereby they were convicted and sentenced under Section 7 of the Essential Commodities Act read with Haryana Kerosene Dealers Licensing Order, 1976 and Haryana Prevention of Hoarding and Maintenance of Quality Order, 1977, the appellants had filed the present appeal.
According to the prosecution, on 8.8.1993 SI Darshan Lal of Police Station, Civil Lines, Bhiwani, alongwith other police officials, was present at Railway Crossing, Bhiwani in connection with verification of some complaint. At that place, he received a secret information that kerosene had been stored for sale in black market at the rate of Rs.5/- per bottle in shop No.6 of Khem Chand and in shop No.8 belonging to the appellants. He made an attempt to join some person in the raiding party from the public but failed. He then asked Constable Om Parkash and Constable Ranbir Singh, who were accompanying him to go and come back in civil dress. A currency note of Rs.5/- was entrusted to Constable Criminal Appeal No. 153-SB of 1996 -2- Om Parkash with a direction to purchase a bottle of kerosene from shop No.8 belonging to the appellants. As instructed, Constable Om Parkash went to shop No.8 and made the purchase. He then gave a signal to the police party, which reached shop No.8. Kavinder Singh-appellant was secured while Shambhu Dayal managed to escape from the rear gate of the shop. Constable Om Parkash produced the bottle of kerosene purchased by him, which was taken into possession. The cash box of the shop was checked and found to contain Rs.152/-, including the tainted currency note of Rs.5/-, which had been originally handed over to Constable Om Parkash. The cash box etc. were taken into possession. A can containing 10 litres of kerosene was recovered. A sample was taken from the same. The sample and the residue were sealed. The police party after entering the shop found a cement tank under the staircase, which contained about 25 litres of kerosene. Sample of kerosene was also taken out from the said tank. The sample and the remainder, after being put in a Jerry can, were sealed. From the rear portion of the shop, three drums, each containing 200 litres of kerosene were recovered. A sample from each of the drums was separated and the sample and the remainders were sealed. One measure of 1 litre, one measure of ½ litre, one iron funnel and a pipe of 6 inches long were also taken into possession from the said place. Kavinder Singh could not produce any licence or permit for storing and selling kerosene. Accordingly, SI Darshan Lal prepared and sent ruqa Ex.PA on 8.8.1993 at 3.00 P.M. from Sabji Mandi, Bhiwani itself to Police Station, Civil Lines, Bhiwani for registration of a case under Section 7 of the Essential Commodities Act against the appellants, pursuant to which formal FIR Ex.PA/1 was registered on the same day at 3.15 P.M. Kavinder Singh was arrested on the same day Criminal Appeal No. 153-SB of 1996 -3- while Shambhu Dayal was arrested on 13.8.1993. One Anil Kumar, who had been supplying kerosene to the appellants, was also arrayed as one of the accused later on and arrested on 18.8.1993.
After completion of the investigation, final report under Section 173 Cr.P.C. was presented against the appellants and Anil Kumar on 8.11.1993. Copies of the final report were supplied to the accused free of cost. Vide order dated 7.5.1994, learned Special Judge, Bhiwani, exercising the powers under Essential Commodities Act, found a prima facie case against all the accused for selling kerosene in black in contravention of the Haryana Kerosene Dealers Licensing Order, 1976 and Haryana Prevention of Hoarding and Maintenance of Quality Order, 1977 punishable under Section 7 of the Essential Commodities Act. Accordingly, all the three accused were charged for the said offence to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined four witnesses. PW1 ASI Anup Singh stated that he recorded formal FIR Ex.PA/1 on 8.8.1993 on receipt of ruqa Ex.PA. PW2 HC Maha Singh, PW3 SI Darshan Lal and PW4 Constable Om Parkash deposed about the receipt of secret information regarding storage and sale of kerosene in black market in shops No.6 and 8, purchase of a bottle containing kerosene by Constable Om Parkash from shop No.8 and subsequent raid conducted by SI Darshan Lal and others leading to recovery of 635 litres of kerosene from the aforementioned shop as well as the tainted currency note of Rs.5/- from the cash box kept at the shop. All of them stated that at the time when Constable Om Parkash while posing as a customer purchased kerosene by giving an amount of Rs.5/-, both the appellants Criminal Appeal No. 153-SB of 1996 -4- were present at the shop but on seeing the police party, Shambhu Dayal managed to run away from the rear gate while Kavinder Singh was caught. The prosecution also tendered in evidence report Ex.PG of the Chemical Examiner.
When examined under Section 313 Cr.P.C., all the accused denied the prosecution allegations. According to Shambhu Dayal- appellant, he had been falsely implicated in the case as he refused to oblige Constable Om Parkash who had come some days prior to 8.8.1993 to purchase some articles on credit. He also stated that he did not keep any kerosene in his shop. In fact, on 8.8.1993 at about 4.00 A.M., he left Bhiwani for Sirsa for Satsang and returned from there on the next day by Haryana Express which left Sirsa on 9.8.1993 at 3.00 A.M. In his absence, his shop remained open but the work was looked after by Kavinder Singh who belonged to his village and used to help him whenever he went to Sirsa for Satsang. The plea of Kavinder Singh- appellant was that nothing was recovered from the shop of Shambhu Dayal on 8.8.1993 where he was present and doing Sewa. The kerosene drums and other material mentioned in the recovery memos did not belong to Shambhu Dayal or to him. The police had come to shop No.6 only which belonged to some other shop keeper and recovered some kerosene from there. Later on, a Constable came from the Police Post of Sabji Mandi, Bhiwani to summon him. He was first taken to the police post and then to Police Station, Civil Lines, Bhiwani where he was implicated in the case. Anil Kumar, the acquitted accused, had stated that he had no connection with shop No.8, its owner or anyone else. He did not know as to why he had been implicated in the case. He was Criminal Appeal No. 153-SB of 1996 -5- arrested on 13.8.1993 as the police had gone for his search to his village on 12.8.1993 He pleaded that he was innocent.
In defence, the accused examined DW1 Harbans Lal, Booking Supervisor, Railways, Sirsa who proved ticket Ex.D1 issued on 9.8.1993 for journey between Sirsa and Bhiwani. DW2 Rajinder Kumar deposed about the presence of Shambhu Dayal at Sirsa on 8.8.1993 as he marked him present as Sewadar in the attendance register. He proved photocopy of the entry of the register as Ex.D2. The accused also tendered in evidence certified copy of the bail application Ex.D3.
After going through the evidence and hearing learned counsel for the parties, the trial Court held that 635 litres of kerosene was recovered from the unauthorised possession of Shambhu Dayal and Kavinder Singh on 8.8.1993. However, there was no evidence at all so as to connect Anil Kumar accused with the crime. Accordingly, Anil Kumar accused was acquitted of the charge against him whereas Shambhu Dayal and Kavinder Singh were convicted under Section 7 of the Essential Commodities Act read with Haryana Kerosene Dealers Licensing Order, 1976 and Haryana Prevention of Hoarding and Maintenance of Quality Order, 1977. Shambhu Dayal-appellant was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, in default of payment of fine, to suffer further rigorous imprisonment for six months, whereas Kavinder Singh was sentenced to pay a fine of Rs.1,000/- only and in default of payment of fine, to suffer rigorous imprisonment for three months.
When the appeal was taken up for hearing on 23.3.2009, Criminal Appeal No. 153-SB of 1996 -6- none appeared on behalf of the appellants. Accordingly, Mr. Raman B. Garg, Advocate was appointed as Amicus Curiae to assist the Court. Directions were issued to the registry to immediately supply complete copy of paper-book to him.
I have heard Mr. Raman B. Garg, Advocate for the appellants and Ms. Hem Lata Balhara, Assistant Advocate General, Haryana and perused the evidence with their able assistance.
The ownership of shop No.8 situated in Sabji Mandi, Bhiwani being that of Shambhu Dayal is not in dispute. What is disputed is whether kerosene was unauthorisedly stored and sold from shop No.8 or not. According to Shambhu Dayal, he had never stored kerosene in his shop whereas according to the prosecution 635 litres of kerosene was stored at the said shop and no permit was shown by Kavinder Singh appellant for its storage and sale.
The consistent case of PW2 HC Maha Singh PW3 SI Darshan Lal and PW4 Constable Om Parkash was that a secret information was received about the storage and selling of kerosene in black market at shops No.6 and 8 situated in Sabji Mandi, Bhiwani. Pursuant thereto, an attempt was made to join some independent witness but it proved futile. Accordingly, Constable Om Parkash was directed to change into civil dress and then to visit the shop of the appellants by posing as a decoy customer and interested in purchasing a bottle of kerosene. As instructed, Constable Om Parkash carried currency note of Rs.5/- with him and went to the shop of the appellants as a decoy customer, where he effected the purchase. He then gave a signal, upon Criminal Appeal No. 153-SB of 1996 -7- which the police party reached the shop belonging to Shambhu Dayal- appellant. On seeing the police party, Shambhu Dayal managed to escape. Constable Om Parkash was found in possession of a bottle containing kerosene. The currency note of the denomination of Rs.5/- was recovered from the cash box kept in the shop. 10 litres of kerosene was recovered from the can from which Constable Om Parkash had earlier been sold one litre of kerosene. Further search of the shop led to recovery of 25 litres of kerosene from a cement tank constructed under the staircase and 600 liters of kerosene from three drums, each containing 200 litres, from the rear portion of the shop. When asked by the police party headed by Sub Inspector Darshan Lal, Kavinder Singh appellant could not produce any permit for storage and sale of kerosene from the shop. As such, it stood proved that both the appellants had stored kerosene and indulged in its sale in black market without being duly authorised in that regard.
According to Shambhu Dayal, he was not present at his shop on 8.8.1993 as early in the morning of that day, he left for Sirsa in connection with Satsang at Dera Sacha Sauda. He stayed there throughout the day and started from Sirsa by a train which left on 9.8.1993 at 3.00 A.M. In support of his plea, he examined DW1 Harbans Lal, who proved the entries in the register regarding sale of ticket Ex.D1 meant for journey from Sirsa to Bhiwani on 9.8.1993 by Haryana Express leaving at 2.45 A.M. He also examined DW2 Rajinder Kumar who deposed about his presence at Dera Sacha Sauda alongwith other Sewadars on 8.8.1993 in group No.15. However, a close perusal of the cross-examination of DW2 Rajinder Kumar would reveal that the entries Criminal Appeal No. 153-SB of 1996 -8- in register Ex.D2 had been fabricated so as to show the presence of Shambhu Dayal in group No.15 of Sewadars as Shambhu Dayal told him that a case had been registered against him and, therefore, against his name 'Bhiwani' was written and in order to make Bhiwani less prominent, word 'Jajjal' was inserted against the names of other persons. Therefore, instead of proving that Shambhu Dayal was present at Satsang throughout the day of 8.8.1993, DW2 has practically let the cat come out of the bag by testifying that records were smudged to help Shambhu Dayal.
Even if it is held that Shambhu Dayal was present at Satsang on 8.8.1993, that would not absolve him of the liability of storage of kerosene at Shop No.8 which belonged to him. Apart from one can containing 10 liters of kerosene from which one bottle of kerosene was sold to Constable Om Parkash, a cement tank containing 25 litres of kerosene was found constructed under the staircase whereas three drums, each containing 200 litres of kerosene were recovered from the rear portion of the shop. That by itself is sufficient to fasten the liability on Shambhu Dayal.
There appears to be some discrepancy regarding the escape of Shambhu Dayal from the shop on his seeing the police party reaching his shop. Whether there was a door in the rear wall of the shop or whether Shambhu Dayal could have jumped over the said wall so as to escape the police dragnet but fact remains that a large quantity of kerosene was recovered from his shop which kerosene was being sold in black market as he did not possess any permit, either for its storage or for its sale.
Criminal Appeal No. 153-SB of 1996 -9-
In view of the above, no case is made out for any interference in the conviction of the petitioners.
The offence was committed by Shambhu Dayal appellant in the year 1993. When he was examined under Section 313 Cr.P.C. on 5.12.1995, he stated his age as 41 years. By now he must be about 55/56 years of age. There is no material on the file to show that the appellant has ever been involved in any other criminal activity. Under these circumstances, sentence of two years imposed upon him is too harsh. The same requires to be reduced to one year's imprisonment.
Resultantly, the conviction of the appellants for offence under Section 7 of the Essential Commodities Act read with Haryana Kerosene Dealers Licensing Order, 1976 and Haryana Prevention of Hoarding and Maintenance of Quality Order, 1977 is upheld. Sentence of rigorous imprisonment for two years imposed upon Shambhu Dayal appellant is, however, reduced to rigorous imprisonment for one year. At the same time, the fine of Rs.10,000/- is enhanced to Rs.25,000/-. In default of payment of fine, Shambhu Dayal appellant shall suffer further rigorous imprisonment for nine months. The sentence of fine of Rs.1,000/- imposed upon Kavinder Singh appellant alongwith its default clause is maintained.
But for the modification in the sentence, as indicated above, the appeal fails and is, therefore, dismissed.
( T.P.S. MANN )
March 19, 2010 JUDGE
satish