Gujarat High Court
Noormohamad Hasanbhai Shaikh vs State Of Gujarat on 7 July, 1998
Equivalent citations: (1998)3GLR2488
Author: A.M. Kapadia
Bench: A.M. Kapadia
JUDGMENT A.M. Kapadia, J.
1. In this appeal, the appellant/original accused No. 1 has questioned the legality and validity of the judgment and order of conviction and sentence recorded in Summary Case No. 10 of 1988 by the learned Additional Sessions Judge (Special Court) of Kheda at Nadiad by invoking the provisions of Section 374(2) of the Criminal Procedure Code, 1973 ('the Code' for short).
2. The brief facts leading to the present appeal are as follows:
2.1. Both the accused are brothers. Accused No. 2, Siddikbhai Hasanbhai Shaikh, was the owner of the house bearing No. 10/517 situated at Petlad, whose house was raised on 24-9-1987 by Sureshkumar Brahmbhatt, who, at the relevant time, was Supply Inspector of Kheda District, camping at Petlad. On that day at about 3-30 p.m. when said Sureshkumar Brahmbhatt was sitting at Circuit House, an unknown person came there and talked with C.G. Patel, Chief Supply Inspector, and gave information with regard to unauthorised storing of 51 tins of palmolein oil in the house of accused No. 2.
2.2 On receipt of the said information, the Chief Supply Inspector, Supply Inspector and one R.D. Meckwan along with Supply Inspector Sureshkumar Brahmbhatt went to the house of accused No. 2 which was found closed. On looking through the window they found tins in the house. Thereafter, the Chief Supply Inspector ordered to raid the premises. Pursuant to the said order, they called three panchas and in presence of panchas they inquired about the ownership of the house and on inquiry it was learnt that accused No. 2, Siddikbhai Hasanbhai Shaikh, was the owner of the said house. During that time accused No. 1, Noormohmad Hasanbhai Shaikh, came there and he gave information with regard to the ownership of the house.
2.3 Thereafter, accused No. 1 opened the house and in presence of panchas they entered in the house and found 51 tins of palmolein oil. During inquiry, Noormohmad Hasanbhai Shaikh, accused No. 1, stated that the house belonged to his brother Siddikbhai Hasanbhai Shaikh, accused No. 2. He staled that he purchased 51 tins of palmolein oil from an unknown person at the rate of Rs. 280 per tin and the said unknown person stored the same in the house at 3 p.m. Accused No. 1 slated that in all he paid Rs. 14,280. He also stated that he was going to sell the palmolein oil by taking profit of Rs. 3 per kg. All the tins containing palmolein oil were seized in the presence of panchas. During inquiry accused No. 1. Noormohmad. admitted that he had no pass or permit to preserve or store palmolein oil nor any declaration in this regard was made before Mamlatdar.
2.4 Thereafter, they opened one tin in presence of panchas and collected sample of the content. The sample was distributed in three bottles and the bottles were sealed, labelled and signature of panchas, accused No. 1 Noormohmad and two Supply Inspectors were obtained on the same. Out of the three bottles, one bottle was handed over to accused No. 1 Noormohmad and the seized 51 tins were sent to Government godown in a private transport vehicle. Seizure order was served on the accused. panchnama was prepared, signatures of three panchas as well as accused No. 1 were obtained beneath it and all other formalities were completed. Thereafter, statement of accused No. 1 was recorded by Sureshkumar Brahmbhatt who raided the premises and below that signatures of accused No. 1 and panchas were obtained.
2.5 After obtaining requisite sanctions, a complaint was lodged by R C. Rana, Deputy Mamlatdar (Supply), Petlad before the Special Judge of Kheda at Nadiad. The learned Judge sent the complaint to the concerned police station for investigation under Section 156(3) of the Code. On completion of the investigation, charge-sheet was filed against both the accused.
2.6 Both the accused were charge-sheeted before the learned Additional Sessions Judge (Special Court) of K.heda at Nadiad in Summary Case No. 10 of 1988. Charge was framed against both the accused by the Special Court for alleged offences punishable under Sections 3 and 7 of the Essential Commodities Act ('the Act' for short) to which they pleaded not guilty.
2.7 In order to prove the guilt of the accused, prosecution mainly relied upon the oral testimony of seven witnesses, documentary evidence consisting of complaint, confessional statement of the accused and panchnama. On appreciation of the evidence and considering the facts and circumstances of the case, the learned Special Judge found the accused No. 1 guilty of the offence punishable under Section 3 read with Section 7 of the Act read with Clauses 4 and 6 of the Gujarat Essential Articles Dealers (Regulation) Order, 1977 (hereinafter referred to as 'the Regulation' for short) and Clauses 3(1)(a), 5(1), 18(6) and 22 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 ('the Order' for short hereinafter) and passed the impugned order of conviction dated 13-9-1996 qua accused No. 1 and sentenced him to suffer R.I. for three months and to pay fine of Rs. 500/- and in default to suffer S.I. for one month. As the guilt against the accused No. 2 was not proved, he was acquitted of the offence with which he was charged.
2.8 Feeling aggrieved by the said order of conviction and sentence, appellant original accused No. 1 has now come up in this appeal before This Court challenging its legality and validity.
3. Learned Advocate Mr. Parikh for the appellant/original accused No. 1 has raised following contentions:
(i) The prosecution has miserably failed to prove and establish that the commodity seized from appellant accused No. 1 was palmolein oil as the analysis report has not come forward before the trial Court though sample was collected.
(ii) The raid was premature. As per the prosecution case the appellant/accused No. 1 purchased the palmolein oil on 24-9-1987 and immediately the premises was raided and the commodity was seized According to Clause 18(5) of the Order 1981, a person who is not a licence holder and has in his possession or control any essential article in excess of the limits fixed by the State Government shall within three days after the issue of such notification or within two days from any date thereafter, when the stock exceeds such limit, make a declaration in writing to the concerned licensing authority and hence according to learned Advocate for the appellant the raid was premature.
(iii) That the extra-judicial confession of the appellant/accused No. 1 recorded by the concerned officer is a very weak piece of evidence and no reliance whatsoever can be placed upon the said piece of evidence without getting corroboration from independent witnesses.
(iv) The panchas have not supported throughout with respect to the possession of the commodity, preparation of panchnama and collection and sealing of the samples.
(v) Impugned conviction and sentence is otherwise also vulnerable as there is no reliable and trustworthy evidence to transfix the culpability of the appellant/ accused No. 1 for the said offence.
4. The aforesaid contentions are seriously countered by the learned A.P.P. Mr. Mehta on the following premise:
(i) The prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent, reliable and trustworthy evidence of the complainant.
(ii) So far as the seized article, i.e., 51 tins of palmolein oil is concerned, it is proved that the content in the tins was palmolein oil. It was never the case of the appellant/accused No. 1 from the very beginning that it was not palmolein oil. Had that been the case he would have stated so from the very beginning.
(iii) So far as Clause 18(5) of the Order is concerned, it is for the accused to declare immediately after the raid was carried out but in the instant case appellant/ accused No never declared and, therefore, there was violation of Clause-18(5)** of the Order. Hence, the raid cannot be called premature.
(iv) The confession made before the Supply Inspector can be proved in prosecution for the offences under the Act with the aids of the provisions of Section 25 of the Evidence Act as the Supply Inspector cannot be said to be a police officer. In the instant case, the appellant/accused No. 1 has admitted the ownership of 51 tins of palmolein oil at the time of raid, preparation of panchnama and recording of his statement and also signed all these documents. The said statement was never retracted by the appellant/accused No. 1 except in reply to show cause notice issued against him. Under these circumstances, the confession made by him never came to be retracted.
(v) Regarding the order of conviction and sentence is concerned, the same is in consonance with the evidence adduced before the learned Special Judge and does not require any interference by This Court.
Therefore, the learned A.P.P. submitted that the appeal is required to be dismissed.
5. In order to prove the guilt of the accused, the prosecution examined in all seven witnesses, including two panchas. As per the prosecution case. Supply Inspector, Suresh kumar Brahmbhatt. who inspected and raided the premises of the accused No. 2, Siddikbhai Hasanbhai Shaikh on 24-9-1987. inter alia, testified that on the said day they were camping at Petlad. In all there were four Supply Inspectors and one Chief Supply Inspector in the camp. On that day at about 3-30 p.m. an unknown person came there and talked with C.G. Patel, Chief Supply Inspector. On getting information with regard to storing of palmolein oil at the premises of the accused No. 2, they all went and raided the premises of accused No. 2 in presence of accused No. 1 who claimed to be the owner of the palmolein oil and allowed them to seal 51 tins of palmolein oil in presence of panchas. It is interesting to note that as per the prosecution case, accused No. 1 made voluntary confession before the Supply Inspector and as a token of having made such a statement, he also signed the panchnama below the signatures of the panchas. Not only that his further statement was recorded on the same day wherein also he signed and the panchas also put their signature to the effect that the said statement was recorded in their presence.
6. So far as the first contention canvassed by Mr. Parikh that the seized article was not palmolein oil, it may be appreciated that he never put such a theory earlier and defined that it was palmolein oil. On the contrary, at the time of raid, preparation of panchnama and while recording his statement, accused No. 1 categorically admitted that the article seized was palmoein oil and the same was purchased by him from an unknown person. He purchased the palmolein oil with a view to make profit of Rs. 3 per kg. He also stated that the purchase price of one tin palmolein oil was Rs. 280 and in all he paid Rs. 14,280 to the unknown man. The contention of Mr. Parikh that as evidence with respect to the collection of sample and the reports thereon are not forthcoming, the prosecution has miserably failed to prove that the said tins contained palmolein oil, is not well-founded. If at all the content of said tins was not palmolein oil the appellant/accused No. 1 ought to have raised the plea from the very beginning, i.e., at the time of raid, preparation of panchnama and recording of his statement. In absence of this, said contention of Mr. Parikh is devoid of merits and the same is rejected.
7. The second contention of Mr. Parikh is that admittedly accused No. 1 was not a dealer engaged in the business of palmolein oil. He was doing scrap business. He purchased 51 tins of palmolein oil for his personal consumption. Therefore, in view of the provisions of the Order, he could make declaration before the concerned authority within two days about the excess stock as prescribed by the notification in the official gazette as envisaged in Clause 18(5) of the Order. As the raid was carried out immediately after purchasing of the palmolein oil on 24-9-1987 the accused No. 1 could not declare it before the concerned authority. Therefore, the raid was premature and resultantly on the basis of the said raid no prosecution could be launched against the accused.
8. In order to examine the said contention, let us peruse Clause 18(5) of the said Order which reads as under:
18. General conditions for dealers: A licence holder under this Order shall, apart from any special conditions that may be imposed by the licensing authority, observe the following general conditions:
(1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) xxx xxx xxx xxx
(5) Notwithstanding anything contained in Clause 15. even- person not being a licence holder who has on the date of the notification fixing the limits of stocks or any time, thereafter in his possession or under his control any essential article in excess of the limits which may by a notification in the official gazette be fixed by the State Government shall within three days after the issue of such notification or within two days from any date thereafter when the stock exceeds such limit, make a declaration in writing to the concerned licensing authority showing therein his name, address and quantity of each kind of essential article in his possession or under his control:
Provided that such person shall not have in his possession or under his control stock of any essential article in quantity exceeding such limits beyond a period of fifteen days after such declaration without obtaining the prior permission therefor from the licensing authority:
Provided further that where the licensing authority grants under the first proviso permission to a person to have in his possession or under his control, stock of any essential article exceeding the limits aforesaid, such person shall make on or before the fifth day of every month a declaration of stock in writing to the licensing authority showing therein his name, address and the quantity of essential article held by him:
Provided also that such person shall abide by such directions as the State Government, the Director of Civil Supplies, Gujarat State, the Director of Food, Gujarat State, the Collector of the district, the Food and Civil Supplies Controller, Ahmedabad City or the licensing authority may, by general or special order, issue for the disposals of the stock of essential article in excess of the aforesaid quantity in his possession or under his control.
9. In order to attract the said clause the accused ought to have raised such plea from the very beginning. It is evident that neither at the time of raid nor at the time of preparation of panchnama nor at the time of recording of the statement, accused No. 1 raised such a plea. On the contrary, he raised the plea that he purchased the said tins of palmolein oil from an unknown person with a view to make profit out of the same at the rate of Rs. 3 per kg. Apart from this, no one prevented the accused No. 1 from making declaration before the licensing authority within two days after the raid, retracting from the confessional statement made before the raiding authority. This was also not done by accused No. 1. It is surprising to note that for the first time, at the time of recording his statement under Section 313 of the Code during trial, at a very belated stage, the accused No. 1 retracted from the confession made before the Supply Inspector. Therefore, no reliance can be placed upon the further statement of the accused No. 1 recorded under Section 313 of the Criminal Procedure Code. It is surprising to note that even in that statement also he pleaded total denial. He denied that the palmolein oil was for his personal consumption. Therefore, Clause 18(5) can never be attracted in the facts of the present ease. In these circumstances, the second contention raised by Mr. Parikh also fails and it is rejected.
10. This takes me to the third contention advanced by Mr. Parikh that the statement recorded by the Supply Inspector in the nature of extra-judicial confession is a weak piece of evidence and as per the settled legal proposition of law and under the criminal jurisprudence it is hit by Section 25 of the Evidence Act. Conviction cannot be based only on extra-judicial confession unless it gets corroboration from other independent witness, which is relevant, trustworthy and inspiring confidence. Mr. Parikh submitted that in the instant case the panchas have not supported the contents of panchnama and merely on the basis of extra-judicial confession recorded by the Supply Inspector, the learned Special Judge passed the order of conviction which can never be sustained.
11. I am not at all impressed by the aforesaid submission of Mr. Parikh. Admittedly, the raid was carried out by the Supply Inspector exercising powers under the Act. Therefore, he cannot be said to be a police officer for the purpose of Section 25 of the Evidence Act. Under the circumstances, the confession made before the Supply Inspector can be proved in prosecution for offences under the Act and such confessional statement can be accepted without corroboration in a given case if the circumstances so permit. The aforesaid principle is enunciated by This Court in the case of Kanbi Patel Prataprai v. State reported in 1996 (1) GLR 179. The principle enunciated in the said case is very much reinforced by the decision of the Apex Court in the case of Balkishan v. State of Maharashtra wherein the Supreme Court has held that the primary test for determining whether an officer is a police officer is: whether the officer concerned under the Special Act has been invested with all the powers exercisable by an officer-in-charge of a police station under the Code qua investigation of offences including the power to initiate prosecution by submitting a report (charge-sheet), and further observed that an officer of the railway protection force making an inquiry in respect of an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 is not a police officer.
12. Similarly, in the case of State of Punjab v. Barkat Ram , the Supreme Court has observed that the expression "police officer" has, however, not such a wide meaning as to include persons on whom certain police powers are conferred. It is also observed that customs officer is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties and held that the customs officer under the Customs Laws is not a police officer for the purpose of Section 25 of the Evidence Act.
13. Applying the ratio laid down by the Apex Court as well as This Court and considering the facts and circumstances of the case, when the Supply Inspector exercised the powers under the Order, he cannot be called as a Police Officer. Therefore, any confessional statement made by a person before him would not be hit by the provisions of Section 25 of the Evidence Act. Hence, the contention that the confessional statement made by the accused No. 1 before the Supply Inspector is hit by the provisions of Section 25 of the Evidence Act cannot be sustained.
14. The contention that the confessional statement cannot be accepted without corroboration is also not well-founded. It is not always so that the extra-judicial confession requires corroboration. In a given case conviction can be based merely on the basis of extra-judicial confession, in this regard, This Court makes a reference to the decision in the case of Slate of U.P. v. M.K. Anthony wherein the Supreme Court has held as under:
(A) Evidence Act (I of 1872), Section 24 - Extra-judicial confession - Corroboration - Murder by accused of his wife and children - Making confession to his close friend -Evidence of friend found reliable and trustworthy - Conviction on that basis, held proper - Corroboration not necessary.
15. Reliance is also placed on the judgment in the case of Narayan Singh v. state of M.P. wherein the Supreme Court elucidated in terms that:
(B) Evidence Act (I of 1872), Section 24 - Extra-judicial confession - Evidentiary value.
It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.
16. Keeping the aforesaid principles in the forefront if we examine the case on hand it is clear that the accused No. 1 has not only made voluntary confession before two Supply Inspectors but also put his signature beneath the statement and panchnama as well wherein he has categorically stated that he has purchased said 51 tins of palmolein oil with a view to profiteering out of the sale therefrom. It is surprising to note that said contention retreating from the confessional statement came to be made for the first time while recording his further statement and not prior to that. Therefore, it is clear that the said statement recorded vide Exh. 7 is voluntary and uninfluenced. It is also interesting to note that not a single question was put to any of the witnesses examined by the prosecution by the defence lawyer with regard to taking the confessional statement either by force or influence or duress. Therefore, by no stretch of imagination it can be said that the said statement was recorded by influence, force or duress as it was purely voluntary in nature and uninfluenced by any of the authority. Therefore, the same is not hit by the provisions of Section 25 of the Evidence Act. Therefore, this contention of Mr. Parikh also fails and is rejected.
17. Having regard to the facts and circumstances emerging from the record of the present case, it is duly proved that the appellant/accused No. 1 was the person who purchased 51 tins of palmolein oil which were found in the house of accused No. 2 and the. content of said 51 tins was definitely palmolein oil. It is also proved that the said 51 tins of palmolein oil was purchased by accused No. 1 at the rate of Rs. 280 per tin with a view to make profit at the rate of Rs. 3 per kg. Therefore, the accused No. 1 did violate Clauses 4 and 6 of the Gujarat Essential Articles Dealers (Regulation) Order, 1977 and Clauses 3(1 )(a), 5(1), 18(6) and 22 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 and thereby violated provisions of Section 3 of the Essential Commodities Act, 1955 punishable under Section 7 of the said Act. In these circumstances, This Court has no hesitation in finding that the impugned order of conviction is not at all vulnerable, but as such it has remained unimpeachable. Therefore, it is required to be confirmed in this appeal.
18. So far as the order of recording of sentence is concerned, it may be mentioned that the learned Special Judge has taken a lenient view and has awarded the minimum sentence prescribed under the provisions of See. 3 read with Section 7 of the Act. The learned Special Judge has shown leniency and awarded only the minimum sentence of R. 1. for three months and fine of Rs. 500 which does not require any interference of This Court.
19. In the premise, this appeal is meritless and is required to be dismissed. Accordingly, it is dismissed. The impugned order of conviction and sentence recorded by the learned Special Judge is confirmed. The appellant/accused No. 1 is on bail during pendency of the appeal. He is ordered to surrender himself on or before 31-8-1998 to serve out the sentence as awarded by the learned Special Court and confirmed by This Court. If the accused No. 1/appellant herein fails to surrender himself on or before 31-8-1998, the learned Special Judge is hereby directed to issue non-bailable warrant against him for taking him into custody to serve out the sentence as awarded by the learned Special Judge and confirmed by This Court.