Punjab-Haryana High Court
Vikash vs The State Of Haryana ---Respondent on 3 July, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.523-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRA No.523-SB of 2001
Date of Decision:-3.7.2013
Vikash ---Appellant
Versus
The State of Haryana ---Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Vivek Goel, Advocate for the appellant.
Mr.Gourav Verma, AAG Haryana for the State.
Mehinder Singh Sullar, J. (Oral)
Assailing the prosecution version and its evidence in entirety, appellant-convict Vikash son of Nanak Chand (for brevity "the appellant") has preferred the instant appeal to challenge the impugned judgment of conviction dated 17.4.2001 and order of sentence dated 18.4.2001, by virtue of which, he was convicted and sentenced to undergo rigorous imprisonment for a period of one year, to pay a fine of ` 1000/- and in default thereof to further undergo RI for a period of one month for the commission of an offence punishable under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as "the E.C.Act") by the Special Judge.
2. The epitome of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of CRA No.523-SB of 2001 2 the present appeal and emanating from the record, as claimed by the prosecution, is that on 11.8.1999, as soon as, a police party headed by SI/SHO Randhir Singh (PW5) was present at Bus-Stand, Sohna in connection with patrol duty, in the meantime, he received a secret information to the effect that the appellant was running his business of selling suit cases in the main bazar. He used to illegally keep and sell the LPG cylinders in black market as well at his shop. It was also told that he used to transfer the gas from big cylinder to small cylinder and to sell for ` 300/- each. Consequently, PW5 prepared and sent a writing (ruqqa) (Ex.PC) to the police station. Inspector R.P.Yadav Food & Supplies (PW3) was stated to have been called by him. The shop of the appellant was raided and 11 LPG cylinders were found, out of which, five were full with gas and six were empty cylinders. The cylinders were taken into possession, vide recovery memo (Ex.PA). He could not produce any permit or licence for possessing the LPG cylinders.
3. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 11.8.1999, the appellant was found in possession of five full and six empty cylinders without any permit or licence. In the background of these allegations and in the wake of writing (ruqqa) (Ex.PC), a criminal case was registered against the appellant, vide FIR No.266 dated 11.8.1999 (Ex.PD), for the contravention of the provisions of Clause 6 (1)(c) of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 (for short "the relevant Order") punishable u/s 7 of the E.C.Act by the police of Police Station Sohna, District Gurgaon in the manner depicted here-in- CRA No.523-SB of 2001 3 above.
4. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant to face the trial for the indicated offence.
5. Having completed all the codal formalities, the appellant was charged by the trial (Special) Judge for having committed an offence punishable under section 7 of the E.C.Act, by means of order dated 18.11.1999. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
6. The prosecution, in order to substantiate the charge framed against the appellant, examined PW1 ASI Manphool Singh, who has stated that PW5 had received a secret information that the appellant used to illegally keep and sell the LPG cylinders in black market with a margin of ` 200-300/- per cylinder. Thereafter, he constituted a raiding party and searched the shop of the accused. In pursuance of search, 11 LPG cylinders were found, out of which, five were full and six were empty cylinders. The same were taken into possession, vide recovery memo (Ex.PA). He could not produce any permit or licence for possessing the LPG cylinders. PW2 Bhagwat Parshad has deposed that he was joined in the raiding party and 11 cylinders were found from the shop of the appellant, which were taken into possession vide recovery memo (Ex.PA) attested by him. In cross-examination, he has admitted that there was Pagri ceremony of grand-father of the appellant, 2 to 4 days prior to the present occurrence. He had told the police party that he collected some gas cylinders from his relations for the occasion and some have left by CRA No.523-SB of 2001 4 the villagers.
7. Sequelly, PW3 Inspector Ram Parshad Yadav has testified that on 11.8.1999, the SHO of Police Station Sohna came to his office and asked him to accompany them for the purpose of raid. In the wake of search, 11 cylinders (Ex.P1 to Ex.P11) were recovered from the shop of appellant, out of which, five were full and six were empty. The same were taken into possession vide recovery memo (Ex.PA). He could not produce any permit or licence to keep these cylinders. PW4 HC Sujan Singh recorded the formal FIR (Ex.PD) on receipt of writing (ruqqa) (Ex.PC) from PW5.
8. Likewise, the last to note is the testimony of Investigating Officer, SHO Randhir Singh (PW5), who has also maintained that on 11.8.1999, he was present at Bus-stand Sohna in connection with patrol duty. While he was talking with Manphool Singh ASI, he received the pointed secret information and sent the writing (ruqqa) (Ex.PC) to the police station. PW3 was also associated in the raiding party. On the basis of search, 11 cylinders, were recovered from the shop of the appellant, out of which, five were full and six were empty. The same were taken into possession vide recovery memo (Ex.PA) attested by PW2 and PW3. He could not produce any permit or licence to keep these cylinders. PW3 prepared a report about the raid and gave the same to him, which is (Ex.PB). He recorded the statements of witnesses, prepared the rough site plan of recovery (Ex.PE) and completed all the codal formalities. The appellant was stated to have violated the provisions of notification (Ex.PF) (relevant Order).
CRA No.523-SB of 2001 5
9. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, he has denied the prosecution evidence in its entirety and pleaded false implication in the following manner :-
"I am innocent. My grandfather Krishan Chand s/o Aji Ram died at the age of 75 years on 23.7.1999. He left behind great grandson also. His brahmin ceremony was of 8.8.1999. On that day, besides brahmin, feast was given to the entire village. My grandfather had a double barrel connection in his name, for which, I produce photo copy of his connection certificate. My father Nanak Chand also had a DB connection. The shop is a three storeyed shop. In upper portion of the shop, there was residence of my grandfather. Four cylinders belong to us i.e. grandfather and my father and rest of cylinders were collected from the villagers for the feast. Food Inspector was not there at the spot. He was called much later."
10. The appellant in order to prove his line of defence, examined DW1 Ishwar Dayal s/o Khem Chand, DW2 Ravi Shankar s/o Rup Chand and DW3 Subhash Chand s/o Piare Lal, who have maintained, on oath, that there was a community feast (Langar) on the occasion of death of Kishan Chand, grandfather of the appellant, for which, he borrowed the LPG cylinders from them. The appellant has tendered domestic gas consumer cards mark A and B in documentary evidence. This is the entire evidence brought on record by the parties.
11. The trial (Special) Judge, after taking into consideration the entire oral as well as documentary evidence brought on record by the prosecution, convicted and sentenced the appellant, by way of impugned judgment of conviction & order of sentence in the manner described here- CRA No.523-SB of 2001 6 in-above.
12. The appellant did not feel satisfied and preferred the instant appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter.
13. At the very outset, the learned counsel for appellant has contended with some amount of vehemence that the prosecution has failed to prove the essential ingredients of violation of relevant Order to constitute an offence punishable u/s 7 of the E.C.Act. The argument is that PW5 was neither authorized or competent to search nor to seize the LPG cylinders from the premises/shop of the appellant. The argument further proceeds that only an officer of the department of Food & Supplies not below the rank of Inspector duly authorized and notified in this behalf by the Government, only could search and recover the LPG cylinders and appellant cannot be convicted on the illegal investigation conducted by an entirely unauthorized police officer in this regard. Raising a variety of arguments, in all, according to the learned counsel that in this manner, the trial was without jurisdiction, vitiated and there is no acceptable evidence on record to convict the appellant for the indicated offence.
14. Hailing the impugned judgment of conviction, on the contrary, the learned State counsel, though admitted, that PW5 was not authorized to search the premises and seize the LPG cylinders, but still, he urged that the evidence of prosecution witnesses is reliable, trustworthy and no interference is warranted in the impugned judgment of conviction.
CRA No.523-SB of 2001 7
15. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the impugned judgment of conviction cannot legally be maintained and the present appeal deserves to be accepted for the reasons mentioned here-in- below.
16. As is evident from the record that the appellant was charge- sheeted by the Special Judge, by way of order dated 18.11.1999 in the following manner:-
"That on 11.8.99 at about 2 pm in the area of main bazar, Sohna you were found in possession of 11 LPG cylinder, out of which five were filled and remaining were empty of Bharat Petroleum and Hindustan Petroleum without any licence and thus you contravened the provisions of Liquid Petroleum Gas (Regulation of Supply and Distribution Order 6 (clause C) of 1993 and thereby committed the offence punishable u/s 7 of the Essential Commodities Act, 1955 and within the cognizance of this Court."
17. Meaning thereby, the appellant was charged for contravention of provisions of Clause 6(1)(c) of the relevant Order, which postulates that "No person shall possess filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a Government Oil Company or a parallel maketeer."
18. Such thus being the legal position and evidence on record, now the short and significant question, though important, that arises for determination in this appeal is as to whether SI Randhir Singh (PW5) was empowered to search & seize the LPG cylinders from the premises of the appellant and whether the prosecution has been able to prove that he has CRA No.523-SB of 2001 8 violated the provisions of clause 6(1)(c) of the relevant Order or not ?
19. Having regard to the rival contentions of the learned counsel for parties, to me, PW5 was not competent & authorized to search & seize the LPG cylinders from the premises of the appellant, the prosecution has miserably failed to prove all the essential ingredients of crime in question and did not comply with the mandatory provisions of the relevant Order.
20. As is clear that clause 11 of the relevant Order further posits as under:-
"11, Power of entry, search and seizure--
(a) An officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorized by such Government and notified by the Central Government or any officer authorized and notified by the Central Government, or any officer not below the rank of a Sales Officer of a Government Oil Company authorized by the Government and notified by the Central government, may, with a view to ensuring compliance with the provisions of this Order, with such assistance as may be required, for the purpose of satisfying himself that this order or any order made thereunder has been complied with:-
(i) stop and search any vessel or vehicle or any other conveyance which the Officer has reason to believe has been or is being or is about to be used in contravention of this Order.
(ii) enter or search any place with such aid or assistance, as may be necessary; and
(iii) seize and remove with such aid or assistance, as may be necessary books registers and other records pertaining to liquified petroleum gas business, filled and empty cylinders, cylinder valves and pressure regulators alongwith the vehicle, vessel or any other conveyance used for carrying such stock.
(iv) if he has reason to believe that any provision of this Order has been or is being or is about to be contravened and thereafter take or authorize the taking of all measures necessary for securing the production of the liquified petroleum gas gilled or empty cylinders, cylinder valves, pressure regulators, at the office of the CRA No.523-SB of 2001 9 Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 (10 to 1955), for their taking action against all concerned.
(b) The provisions of section 100 of the Code Criminal Procedure, 1973 [2 of 1974] relating to search and seizure shall, so far as may be, apply to searches and seizures under this order."
21. Likewise, Clause 12 of the relevant Order further provides that the provisions of this order shall have the overriding effect notwithstanding anything to the contrary contained in any order made by a State Government or a Union Territory or by an Officer of such State Government or Union Territory before the commencement of this order, except as regards anything done or omitted to be done thereunder before such commencement."
22. A conjoint reading of the pointed provisions would reveal that only an officer of the department of Food & Supplies of the Government not below the rank of Inspector duly authorized by such Government and notified by the Central Government in this behalf is legally empowered to enter, search, seize and remove the LPG cylinders and not otherwise.
23. What cannot possibly be disputed here is that it is well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning, if such meaning is clear and unambiguous. The effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was CRA No.523-SB of 2001 10 the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise, in view of law laid down by Hon'ble Apex Court in case Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation 2009(3) R.C.R.(Criminal) 586 (SC). Otherwise, the very aim and object of the EC Act to avoid false implication by the police in such matters would pale into insignificance.
24. Therefore, the legislative intent underlying the relevant Order is clear and implicit that the prosecution was required to observe the strict compliance of the provisions of Clause 11 of the relevant Order, with regard to enter, search, seizure and remove the LPG cylinders from the premises of the appellant, which admittedly were just ignored with impunity by the prosecution. It is not a matter of dispute that PW5 was not at all competent to enter, search, seize and remove the LPG cylinders from the premises of the appellant. An attempt was made to allege that the seizure memo was attested by Inspector RP Yadav (PW3), which appears to be an after thought and no implicit reliance can be placed on CRA No.523-SB of 2001 11 the prosecution evidence on account of major contradictions in it in this respect. PW3 has stated that the SHO came to his office and joined him in the raiding party from there, whereas the statement of PW5 runs contrary to his statement, wherein he has maintained that PW3 was called through a constable and was associated near the Bus stand, Sohna. Thus, the entire process of search, seizure etc. was illegal, without jurisdiction, goes to the very root of the case and vitiated the trial. This grave illegality and material procedural irregularity entails acquittal of the appellant in this relevant connection. This matter is no more res integra and is now well settled.
25. An identical question came to be decided by this Court in case Ashwani Kumar v. State of Haryana 2012 (3) RCR (Criminal) 384. Having interpreted the similar provisions and the previous judgments, it was ruled that the police is neither empowered to search and seize any property nor has the jurisdiction to prosecute the accused u/s 7 of the E.C.Act. The ratio of law laid down in the aforesaid judgment "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand. Therefore, the entire proceedings and trial are without jurisdiction and vitiated.
26. Not only that, there is yet another aspect of the matter, which can be viewed entirely from a different angle. The defence set up, from the very beginning by the appellant, that he has collected the LPG cylinders from DW1 to DW3 for community lunch (Pagri ceremony) on the occasion of death of his grandfather, appears to be natural and probable. He has so suggested to and admitted by PW2 Bhagwat Parshad. CRA No.523-SB of 2001 12 Moreover, DW1 to DW3 have maintained, on oath, that the appellant had borrowed the LPG cylinders from them for the indicated purpose. It is also not a matter of dispute that the appellant was consumer, vide consumer cards (mark A & mark B) and the LPG cylinders were supplied by the distributor. Therefore, to my mind, mere possession of borrowed LPG cylinders, which were required to be returned to their respective consumers, will not attract the violation of Clause 6 (1)(c) of the relevant Order, particularly when no evidence is forth coming on record, muchless cogent, even to suggest remotely that the appellant had ever sold or was selling the LPG cylinders to any person in black market. In this manner, the prosecution has utterly failed to produce any acceptable evidence on record to prove that the indicated LPG cylinders were meant for sale in black market by the appellant.
27. In the light of aforesaid reasons, if the pointed fact of non compliance of mandatory provisions of relevant Order, non-authorization of PW5 to enter, search, seize, remove, investigate and to prosecute the appellant, culminating into the vitiation of the trial and totality of the facts & circumstances emerging from the record as discussed here-in- above, are put together, then, to me, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge under the E.C.Act and the entire proceedings & trial were without jurisdiction, vitiated and entail the acquittal of the appellant. Therefore, it is held that the prosecution has miserably failed to bring home guilt to the appellant and the instant appeal deserves to be and is hereby accepted. Consequently, the CRA No.523-SB of 2001 13 impugned judgment of conviction & order of sentence are hereby set aside and the appellant is acquitted of the charge framed against him in the obtaining circumstances of the case.
Needless to mention that the compliance and natural consequences will follow accordingly.
(Mehinder Singh Sullar) Judge 3.7.2013 AS Whether to be referred to reporter? Yes/No