Allahabad High Court
Mohd. Naseer vs State on 28 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 15 Case :- CRIMINAL APPEAL No. - 994 of 1987 AFR Appellant :- Mohammad Naseer Respondent :- State Counsel for Appellant :- S.P. Singh Counsel for Respondent :- A.G.A. Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Kunwar Ritesh Kumar, learned counsel for the appellant, Sri B.D. Nishad, Sri Sushil Kumar, learned AGAs for the State and perused the record.
By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 26.03.1987 passed by Special Judge, Ghazipur, in Criminal Case No.15 of 1985 State Vs. Mohd. Naseer, under Section 3/7 Essential Commodities Act, Police Station- Shadiabad, District- Ghazipur whereby the appellant was convicted under Section 3/7 Essential Commodities Act but instead of being sentenced, he was released on probation on condition that he will keep peace and be of good behaviour for a period of one year on furnishing a personal bond for Rs.1000/- with two sureties each in the like amount.
The factual matrix of this case as discernible from the certified copy of the impugned judgment appears to be that on 19.10.1984 at about 7:00 p.m. in village Hansrajpur, fair price shop of accused Mohammad Naseer was licensed for distribution of kerosene and diesel oil was checked by Station Officer, Police Station Shadiabad, District Ghazipur. The raiding party found many irregularities and 235 litres of diesel oil was collected in excess of the stock. The Station Officer was accompanied by Constable Shyam Narain Singh who was on patrolling duty when information was received by the Station Officer for trafficking in kerosene and diesel oil and black marketing of the same being committed by the appellant. Head Constable Ram Swarath Singh was also taken from police outpost Hansrajpur. On check up it transpired that 985 litres of diesel oil was shown existing in the stock register and kerosene oil was found not mentioned in the stock register. After physical verification, 6 drums of diesel oil in the quantity of 1320 litres were found as against 985 litres as shown in the stock register meant for the shop. No price list was displayed at the shop of the appellant and no cash memo was there in his shop. No such cash memo was shown by the appellant. The stock register and sale register were taken into police custody. No public witness was available to the Station Officer to witness factum of check-up of stock register and the kerosene and diesel oil. The appellant and the recovered material were taken into custody and were taken to the Police Station Shadiabad. Recovery memo was prepared by S.O. Dhirendra Kumar Rai, on the basis of which Check FIR was entered/lodged on 19.10.1984 at 10:10 p.m., at Police Station Shadiabad and after completing the investigation, charge sheet dated 13.11.1984 was submitted against the accused Mohd. Naseer. Sanction for prosecution was obtained on 01.02.1985.
The accused denied the allegations and claimed his implication false on the ground of enmity. He has stated that he is licensee of the diesel and kerosene oil. 335 litres of diesel was purchased from Bharat Auto Centre, Lanka, Ghazipur and was unloaded and kept in his shop and immediately thereafter, the Station Officer reached and checked the shop.
The prosecution in order to prove charge against the appellant got examined Constable Srikant Tiwari PW-1, Head Constable Ram Swarath Singh PW-2, Constable Ram Baliram PW-3 and Baldeo Singh PW-4. Except as above, no other testimony was adduced by the prosecution.
The defence got examined Gauri Shanker Rai DW-1, Mohd. Jamil DW-2, real brother of the appellant Mohd. Naseer and Sheo Kumar Tiwari DW-3. Thereafter, the evidence for the defence was also closed and the case was posted for arguments.
The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction under Section 3/7 Essential Commodities Act against the appellant but instead of being sentenced, he was released on probation on condition that he will keep peace and be of good behaviour for a period of one year on furnishing a personal bond for Rs.1000/- with two sureties each in the like amount vide impugned judgment and order dated 26.03.1987.
Resultantly this appeal.
Learned counsel for the appellant has vehemently claimed that in this case, the police officer was having grudge against the appellant and was colluding with his enemies in the village because the appellant never gave extra diesel oil as was demanded, time and again, by the police officer and his friends in the village of the appellant due to which the Investigating Officer, S.O. Shadiabad, was highly inimical towards the appellant and he manipulated the case and put up a false case which stands exposed in view of fact that no public independent witness was made available to stand witness to fact of checking the stock register and the live stock at the shop and no Inspector or personnel of the Supply Department, Ghazipur was ever informed about checking of shop by the police in order to prove transparency and fairness on their part. The court below acted mechanically mind and interpreted things at whim, which is not sustainable in the eye of law.
Learned AGA supported the finding of conviction and submitted that the trial court has genuinely taken into consideration every aspect of the case and has rightly given benefit of the provisions of the U.P. First Offenders' Probation Act, 1938 and the appellant was required to keep peace and be of good behaviour for one year from the date of judgment i.e. 26.03.1987, therefore, the period of one year stood expired on 25.03.1988.
Also Considered the rival submissions.
Bare perusal of the impugned judgment shows that the appellant was found to be hoarding and collecting excess oil and on check up being made by the Station Officer no reasonable explanation was extended as to how and from where he collected excess oil in question. The stock register as maintained by the appellant shows six drums of diesel oil in quantity of 1320 litres, whereas, the stock register showed only 985 litres of diesel oil. Not only this, there are other irregularities also like absence of cash memo and non-display of rate list as were required to be displayed and exhibited by the appellant.
It has also emerged in testimony of the prosecution witnesses that on checking of the stock register, the same was found to be blank and only few entries were made therein and Exhibit-2 is the sale register of diesel oil. After 15.10.1984, no sale was shown to have been effected in the sale register and the stock register Ext.-1 was checked on 19.10.1984 which showed possession of the diesel oil in the quantity of 985 litres only. The prosecution witnesses of fact have merely stated about excess quantity of diesel oil and not anything about price list or stock possession.
In the wake of above, it has been claimed by the appellant that excess 335 litres of diesel oil was purchased from Bharat Auto Centre Lanka, Ghazipur on 19.10.1984. Testimony to that effect is coming forth from Gauri Shanker Rai DW-1 who is accountant of Bharat Auto Centre Lanka, Ghazipur, he has deposed about the sale of 335 litres of diesel oil on 19.10.1984 in the name of Mohd. Naseer which quantity of diesel oil has been sold for Rs.1175.50.He has proved the receipt meant for sale as Ext.Kha-1.
Mohd. Jamil DW-2 has testified to fact that he has purchased 335 litres of diesel oil in his brother's name (Mohd. Naseer) on 19.10.1984 and it was taken by him to the shop of his brother where on arrival, he was informed about illness of his son, thereafter he returned after unloading the diesel oil. This witness was to show that in fact diesel oil was purchased by him and around 6:00 p.m. to 6:30 p.m. on the date of check up and it (purchase of item) could not be entered in the stock register.
The testimony so forthcoming by DW-2, brother of the appellant, obviously shows that there were as many as six drums filled with oil in question, whereas, on check up being made only 1320 litres of diesel was found as against 985 litres as shown in the stock register. Therefore, it cannot be said that no irregularities, whatsoever, has been committed in storing excess quantity of diesel oil without bringing such quantity on the stock register and the excuse or reason shown for such excessive oil in question does not match to the facts and circumstances of the case as to how and why the stock register was not kept up to date and not prepared by the appellant.
To show correct stock position is also legal duty of the shopkeeper himself besides the other things like availability of cash memo and the record being prepared in fullness. Merely entry of the date would have been omitted to be entered in the stock register, then the situation would have been different and the different construction could have been raised, but overall irregularities are perceptible from the record itself on various counts for which the appellant cannot escape liability.
Under the aforesaid facts and circumstances of the case, the trial court rightly convicted the appellant under Section 3/7 Essential Commodities Act but instead of being sentenced, he was released on probation on condition that he will keep peace and be of good behaviour for a period of one year on furnishing a personal bond for Rs.1000/- with two sureties each in the like amount. The impugned judgment was delivered on 26.03.1987 and seven days' time was given for furnishing a bond with sureties.
However, this Court directed vide order dated 03.04.1987 (when this appeal was presented) that in case bond and sureties have been not furnished as yet, the same need not be furnished during pendency of the appeal.
In view of the above specific situation, it is directed that in case the appellant has already furnished a bond and sureties as directed by the impugned judgment and order dated 26.03.1987 then he need not furnish any bond as such. However, if such bond has been not furnished then the appellant is required to furnish the same within 15 days from today before the District Probation Officer, Ghazipur which bond shall be deemed to be a bond meant for one year period beginning retrospectively with effect from 26.03.1987 up to 25.03.1988. Since the period of probation stood exhausted, the probational option so given by the trial court stood suffered. No adverse report has been sent or received from any corner which may show any violation of conditions for keeping peace and maintaining good behaviour by the appellant during the aforesaid period of one year when the probation period remained in force.
Consequently, the the judgment and order of conviction dated 26.03.1987 passed by Special Judge, Ghazipur, in Criminal Case No.15 of 1985 State Vs. Mohd. Naseer, under Section 3/7 Essential Commodities Act, Police Station- Shadiabad, District- Ghazipur, is hereby affirmed. The instant appeal being devoid of merit is dismissed.
In this case, the appellant shall appear before the concerned District Probation Officer within 15 days from today for furnishing a deemed bond (for keeping peace and being of good behaviour) with sureties as was directed by the trial court.
Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.
Order Date :- 28.02.2018 rkg