Punjab-Haryana High Court
Rakesh Kumar vs State Of Punjab on 25 November, 2011
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.1183-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1183-SB of 2001
Date of Decision : 25.11.2011
Rakesh Kumar
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI.
Present:- Mr.Sumeet Mahajan, Sr. Advocate with
Mr.Vaibhav Sehgal, Advocate
for the appellant.
Mrs.Manjari Nehru Kaul, Additional
Advocate General, Punjab.
***
NARESH KUMAR SANGHI, J.
The appellant has challenged the judgment of conviction and sentence dated 05.10.2001 passed by learned Special Judge, Ludhiana whereby, he was held guilty under Section 7 of the Essential Commodities Act, 1955 and sentenced to undergo imprisonment 1-1/2 years and to pay a fine of Rs.2,000/-. In default of payment of fine, to undergo further rigorous imprisonment for six months.
Brief facts of the case are that Raj Bibra (PW-1) was District Food and Supply Controller (hereinafter referred to "DFSC") at Ludhiana. On 06.04.1997, he received secret information that wheat was stored in House No.789, Street No.5, Block No.IV, Mohalla Ranjit Singh Park, Ludhiana, owned by Satinderpal Singh. A Criminal Appeal No.1183-SB of 2001 2 team was constituted and the house of Satinderpal Singh was raided where the wife of Satinderpal Singh was found present. She disclosed that they had rented out one room of the said house to one Babu Ram but was ignorant about the contents lying in the room. On 07.04.1997, at about 11.00 a.m Rakesh Kumar (appellant) went to the said room. In the meanwhile, Raj Bibra DFSC along with other officials reached there and found the appellant in the said room. On inquiry, the appellant presented licence No.1720 which was valid up to 31.03.1998 but the room in which the wheat was stored by the appellant was not shown as godown of the licencee after desealing the room, the DFSC and other members inspected the room and found 340 bags of wheat each weighing about 95 kilograms, 06 bags of sugar each containing one quintal and 83 tins each containing 15 kilograms of vegetable ghee. SHO Police Station Sub Division No.6, Ludhiana was informed vide complaint (Ex.PA) on the basis of which first information report (Ex.PA/2) was recorded. After completion of the investigation, report under Section 173, Cr.P.C was prepared and submitted before the court.
Finding a prima facie case, notice under Section 7 of the Essential Commodities Act, 1955 was served upon the appellant to which he pleaded not guilty and claimed trial.
In order to substantiate its allegations, the prosecution has examined the following witnesses:
PW1 : Raj Bibra- District Food and Supply Controller, who deposed about the raid conducted and recovery of the articles mentioned herein above from the possession of the appellant. He further deposed about the lodging of Criminal Appeal No.1183-SB of 2001 3 the report to the police. In the cross-examination, he admitted that the appellant was holding a wholesale dealer licence No.1720 which was valid upto 31.03.1998. He further admitted that the wholesaler holding a licence can keep in possession 500 quintal of wheat and 500 quintal of sugar. He further admitted that the appellant could legally keep in his possession up to 500 quintal of wheat and 500 quintal of sugar. He further admitted that as per terms of the licence, the appellant could store wheat, sugar and vanaspati ghee in any premises of a choice with prior information to the department. The said information could be sent by ordinary post or by UPC. He further said that he did not know as to whether the appellant informed vide letter dated 01.04.1997 through UPC to the DFSC, Ludhiana about his hiring a godown in Gali No.5, Mohalla Harcharan Nagar, Ludhiana. He also admitted that no public person was joined in the search. Though, many public persons were available in the surrounding houses.
PW2 : Sub Inspector Balwant Singh- On 16.09.1997, the investigation of the case was entrusted to him. He inter alia deposed that the case was registered after obtaining the opinion of District Attorney.
PW3 : Amrit Pal Singh Inspector Food and Supplies Ludhiana- He deposed about the raid conducted by the officials under the supervision of Raj Bibra and the recovery of the wheat, sugar and vegetable ghee. Criminal Appeal No.1183-SB of 2001 4 Though, he was declared hostile at the request of Public Prosecutor but during his cross-examination by the Public Prosecutor, the witness supported the prosecution case. PW4 : Hardip Kaur- She deposed that a room was rented out to Rakesh Kumar (appellant) by her in the year 1997. During cross-examination, she admitted that no rent note was executed between her (Hardip Kaur) and Rakesh Kumar.
PW5 : Sadhu Singh- He was editor in the DFSC. He deposed that on 03.08.1993, a licence under the Punjab Trade Articles Licensing and Control Order, 1992 was issued in favour of Rakesh Kumar, as a wholesale dealer of wheat, maize, paddy and sugar. During his cross- examination, he deposed under Punjab Trade Articles licensing and control order, a wholesaler can keep in his possession unlimited quantity of wheat, maize, paddy, sugar and vanaspati ghee. He further deposed that Rakesh Kumar was issued wholesaler license under the above said control order and the same was valid upto 31.03.1998. He further deposed that the license holder could carry on his business at any place of choice. After getting it approved and after duly entering the place in his license. The prior information could be given by post. He also deposed that he was not aware as to whether any prior information was given by the appellant for change of his place of business. The information was to be received in our office but he was not having knowledge of Criminal Appeal No.1183-SB of 2001 5 the same.
PW6 : Sub Inspector Darshan Ram- He recorded the formal FIR (Ex.PA/2). The witness also identify the signature of Sub Inspector Mohinder Singh on Exhibits PB, PC, PD, PE and PF.
After completion of the prosecution evidence, statement of the appellant in terms of Section 313 Cr.P.C was recorded. He denied the incriminating circumstances appearing against him and pleaded innocence. He took the stand that he was falsely implicated as he could not please the officials of the food and Civil Supplies. He had informed the DFSC about the hiring of a new godown vide letter (Ex.DY) which was sent by UPC slip (Ex.DX). He further submitted that the bills were sent through registered cover to the DFSC. The covering letter was (Ex.DYY) while postal report (Ex.DXX). The photocopies of the bills were marked A,B,C,D, and E. No evidence was led in defence.
On completion of the investigation of both sides, the learned Special Judge convicted and sentenced the appellant as has been described in the earlier part of this judgment.
The learned Senior Advocate representing the appellant has vehemently argued that the appellant was issued valid license No.TA/WH/1720 (Ex.PW4/A) on 03.08.1993 by the Licensing Authority i.e. District Food and Supplies Controller Ludhiana and as such he was authorized to store wheat, sugar and vanaspati ghee much more than the quantity which was allegedly recovered on 07.04.1997, therefore, by no stretch of imagination it cannot be held that the appellant was found in possession of unauthorized stock of Criminal Appeal No.1183-SB of 2001 6 wheat, sugar and vanaspati ghee. He further submitted that any other alleged violation was to be effect that he did not informed the address of the place where he has stored wheat, sugar and vanaspati ghee. He submitted that the appellant had disclosed the address of the room where he has kept wheat, sugar and vanaspati ghee to the department through letter (Ex.DY) which was sent vide UPC receipt (Ex.DX) dated 01.04.1997. He further submitted that a specific question was put to Raj Bibra (PW1) District Food and Supply Controller, but he could not specifically denied the receipt of the same. The same question was also put to Sadhu Singh (PW5) but he too did not deny the receipt but simply said it was not in his knowledge. The said witness admitted that the information could be given by post. Learned Senior Counsel further argued that by means of Section 114 of the Indian Evidence Act, 1872 the Court may presume that the prior information was sent by the appellant to the department of Food and Supply when he has proved the UPC receipt (Ex.DX). In support of his contention placed reliance on Samitiri Devi and Another Vs. Sampuran Singh and Another, (2011) 3 Supreme Court Cases, 556 wherein, it was held that " It will all depend on the facts of each case whether the presumption of service of a notice sent under postal certificate should be drawn. It is true that the presumption would apply with greater force of letters which are sent by registered post, yet, when facts so justify, such a presumption is expected to be drawn even in the case of a letter sent under postal certificate. In the present case it has already been established that the Criminal Appeal No.1183-SB of 2001 7 appellant had purchased the property out of her own funds. Therefore, it could certainly be expected that when she came to know about the clandestine sale of her property to Respondent 1, she would sent him a notice, which she sent on 8-4-1987. The notice is sent from one house on the College Road to another house on the same road in the city of Pathankot. The agreement of purchase is signed by Defendant 3 five days thereafter i.e. on 13-41987. The appellant had produced a copy of the notice along with postal certificate in evidence. There was no allegation that the postal certificate was procured. In the circumstances, it could certainly be presumed that the notice was duly served on Respondent 1 before 13-4- 1987. Respondent 1 did receive the notice and, therefore, was not a bona fide purchaser for value without a notice."
On the strength of the above, he prayed for acceptance of the appeal and acquittal of the appellant.
On the other hand, learned Additional Advocate General, Punjab has submitted that the evidence led by the prosecution was consistent reliable and worthy of credence and hence, the learned trial Court has rightly convicted and sentenced the appellant. She further submitted that the violation of the license was writ at large and therefore, the conviction be maintained and the appeal may be dismissed.
I have heard learned counsel for the parties and have gone through the record with their assistance. Criminal Appeal No.1183-SB of 2001 8
It is an admitted fact that the appellant was holding a valid license which was enforce on the date of the alleged raid i.e. 06.04.1997. It is also not disputed that a licensee could retain the wheat, sugar and vanaspati ghee much more than the quantity which was allegedly recovered from the possession of the appellant. In such a backdrop, it can safely be concluded that there was no violation of any order or the license while having 95 kilograms of wheat, 06 bags of sugar each containing one quintal and 83 tins each containing 15 kilograms of vegetable ghee, therefore to that extent the appellant cannot be saddled with the criminal liability.