Punjab-Haryana High Court
Gulshan Kumar Khurana vs State Of Punjab on 22 January, 2015
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) Crl. Appeal No.S-1766-SB of 2003
Gulshan Kumar Khurana
...Appellant
VERSUS
State of Punjab
...Respondent
(2) Crl. Appeal No.S-1839-SB of 2003
Yash Pal
...Appellant
VERSUS
State of Punjab
...Respondent
Date of Decision: January 22, 2015
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.R.S.Bains, Advocate
for the appellant (in CRA No.S-1766-SB of 2003).
Mr.Denesh Goyal, Advocate
for the appellant (in CRA No.S-1839-SB of 2003)
Mr.Varun Sharma, Asstt. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
Both the appeals are taken up together for disposal being arisen from same judgment.
Both the appeals have been filed by the appellants against the judgment of conviction and order of sentence dated 15.09.2003, VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -2- passed by learned Special Judge, Ferozepur, whereby the accused- appellants were held guilty and convicted under Section 7 of the Essential Commodities Act, 1955 and sentenced them to undergo rigorous imprisonment for a period of 3 years each and to pay a fine of `10000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of nine months each.
The brief facts of the prosecution case are that NFL was the distributor of the fertilizer DAP which was being manufactured by PPCL Amar Nath accused was the dealer of NFL whereas Yash Pal accused was the sub dealer of Amar Nath accused. A letter Ex. P16 was written by Yash Pal accused to the Area Manager NFL Moga for the supply of 30 MT of DAP from the Punjab State Ware Housing Corporation Ferozepur at the old rate of `234/- per bag through M/s Amar Nath accused and alongwith that letter forwarded six drafts of `1,60,000/-. In those days Gulshan Kumar Khurana accused was posted as Area Manager NFL Moga who had been transferred and posted as such vide office order dated 29.05.89 Ex. P 29. In view of the order placed by Yash Pal delivery order for sale of 525 bags of DAP Fertilizer was issued by the accused in favour of Amar Nath accused through retailer Yash Pal accused on 30.09.2003, which was addressed to the Ware Housing Corporation Ferozepur. On the basis of that delivery order release order for the release of 525 bags of DAP from the godown of Ware House was issued on 14.10.1993. On that very day two trucks from the truck union were arranged for transporting of the bags of fertilizer to the business premises of Yash VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -3- Pal situated at Fazilka. Those two trucks were taken to the Ware House Corporation by Sohan Singh PW-11 and Surinder Kumar PW- 12 drivers. Gate passes Ex.P17 and Ex.P18 in respect of 250 bags each were issued and on the basis of those gate passes 250 bags of DAP fertilizer were loaded in each of two trucks bearing no. PB-05-A- 9686 and HYN-4367. Those were brought to the business premises of Yash Pal accused and the bags of fertilizer were unloaded at that place. That accused was holding a licence/certificate for the sale of fertilizer but the DAP fertilizer was not included therein nor the name of Amar Nath accused as a wholesale dealer incorporated in that licence/certificate of registration Ex.P3 issued for the sale of fertilizer. About the receipt of the bags Yash Pal accused put his signature on the receipt below the gate passes. However, he did not enter those bags of fertilizer in his stock register etc. 25 bags of DAP fertilizer were sent to Yash Pal accused on 22.10.93 on the basis of gate pass no.13/4623 in truck No. PAB-6623 and were unloaded at his business premises. He sold all those bags in connivance with Gulshan Kumar Khurana accused in total violation of the instructions issued by the Director Agriculture vide letter dated 07.09.92 Ex. P4. As per those instructions maximum two bags of fertilizer could have been sold to one farmer and that too after getting the sample analysed and tested. Mathura Dass PW1 who was posted as Block Agriculture Officer Fazilka came to know about the sale of above said 26.25 tones of DAP fertilizer by all the accused in connivance with each other in total violation of the instructions issued by the Director Agriculture and VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -4- about non entering of all that stock in the stock register and other records and the sale thereof by Yash Pal accused without having a licence to that effect. About those acts of the accused, he wrote his letter Ex. P1 to the Officer Incharge Police Stating City Fazilka and on the basis thereof FIR Ex.P15 was recorded against all the accused. The investigation was conducted by Harbans Lal DSP. In the course of investigation the gate passes Ex.P17 and Ex.P18, good receipts Ex. P19 and Ex.P20 were produced before him by Gulshan Kumar Khurana accused on 24.12.93 and those were taken into possession vide memo Ex.P21. On 30.12.93 Raj Pal Singh Incharge Ware House Ferozepur PW7 produced before the DSP the released order Ex. D5, gate passes and stock register Ex. P25 and those were taken into possession vide memo Ex.P26. In the course of investigation it was found that the drafts so sent to NFL were in fact got prepared by Sobha Ram PW13, Pardeep Setia PW20, Sunil Kumar PW14, Bhagwan Dass, Suresh Kalra PW16 and Yash Pal on the asking of Gulshan Kumar Khurana accused from OBC Bank, CBI Bank and SBI Bank. Certificates regarding the issuance of those drafts Ex.P5 to Ex. P9 were collected from those banks. The above said witnesses came out with the statements that those drafts were obtained from them by the accused for the supply of DAP fertilizer and the bags of fertilizer were supplied to them by that accused and Yash Pal accused. In the course of investigation statements of the witnesses were recorded and all the relevant record was taken into possession. The accused were arrested and after the completion of the investigation the challan VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -5- was put in before this court for the trial of the accused for the aforesaid offence. After necessary investigation, challan was presented against the accused-appellants.
On presentation of challan against accused-appellants, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, accused-appellants were charge-sheeted under Section 7 of the Essential Commodities Act, 1955, to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Mathura Dass, Chief Agricultural Officer, Muktsar, who remained posted as Block Agriculture Officer at Fazilka from 1993 to 1995, deposed regarding application Ex.P1 for registration of the case. He also stated that M/s Yash Pal and Company was not the dealer of NFL as per the original record maintained in the office of Chief Agricultural Officer, Ferozepur. He proved the photocopy of the licence of M/s Yash Pal and Company Ex.P3. He further deposed that as per the government instructions, only two bags of DAP fertilizer per farmer were to be disbursed. In cross-examination, he admitted that manufacturer i.e. NFL, could not sell fertilizer DAP to Yash Pal and Company for want of licence and dealership. PW-2 Satish Kumar Wadhwa, Manager, Oriental Bank of Commerce mainly deposed regarding preparation of demand drafts at the instance of Shoba Ram and Pardeep Setia. PW-3 Faqir Chand Gupta, Sub Accountant, Central Bank of India also deposed regarding preparation of drafts by Sunil Kumar. PW-4 Manohar Lal, Assistant Manager, Punjab National VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -6- Bank deposed regarding preparing of drafts by Bhagwan Dass, Suresh Kalra in the name of National Fertilizer Limited, Moga. PW-5 Madan Lal, Munshi Truck Union, Ferozepur, brought the summoned record to prove that on 14.10.1993, the fertilizer was transported from Warehouse Corporation Godown, Ferozepur to Fazilka through two trucks bearing registration No.PB-05-9696 and HYN-4367. PW-6 Resham Singh, Agriculture Development Officer deposed regarding the licence Ex.P3 issued to M/s Yash Pal and Company and stated that it is mentioned in the licence as to which fertilizer is to be procured from which source and which type of fertilizer could be sold by it. The fertilizer which the accused was selling was not authorized through this licence to be sold. PW-7 Raj Pal Singh, Technical Assistant, Punjab State Warehousing Corporation deposed regarding the gate passes which were issued to truck Nos.PB-05-9686 and HYN-4367 and proved the gate passes. In cross-examination, he stated that Shri Khurana was present at the time when the gate passes were issued, as the representative of the dealer. PW-8 Surjit Singh, Supervisor Accounts, National Fertilizer Limited Chandigarh, brought the record and as per the record, he deposed that they have received the demand drafts, which were deposited in the account of Amar Nath. PW-9 Harbans Lal, DSP Head Quarter deposed regarding checking of some record and letter etc. produced by G.K. Khurana. PW-10 Chiman Lal, Warehouse Incharge, Fatehgarh Churian deposed that delivery order Ex.P22 was issued by the NFL. After checking the delivery order, gate passes Ex.P17 and Ex.P18 VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -7- were issued regarding 500 bags of fertilizers, which were delivered to retailer M/s Yash Pal and Company. He further deposed that Amar Nath is the dealer of NFL. He identified the signature of G.K.Khurana accused on the delivery order. PW-11 Sohan Singh deposed that in the year 1993, he was driver of truck bearing registration No.HYN- 4367. 250 bags of fertilizers were loaded from Warehouse Corporation, Ferozepur and were delivered at the shop of Yash Pal accused. Receipt obtained was handed over to Amrit Pal. Signature of Yash Pal were obtained on Ex.P18. PW-12 Surinder Kumar, driver of truck bearing registration No.PB-05-9686 deposed that truck is owned by his fatehr. On 14.10.1993, 250 bags of fertilizers were loaded from Punjab State Warehouse Corporation, Ferozepur and the bags were unloaded on the shop of Yash Pal. PW-13 Shoba Ram mainly deposed that he own 30 acres of land in village Ahl-Bodla. In the last week of September, 1993, he had gone to Fazilka to purchase fertilizer DAP because there was shortage of fertilizer. He had gone to the shop of Yash Pal. His (Yash Pal) shop was adjoining his shop. He enquired from Yash Pal about DAP fertilizer but he replied that he is not dealing in sale and purchase of DAP fertilizer. After half an hour, Gulshan Kumar Khurana came to the shop of Yash Pal. G.K.Khurana was earlier known to him (witness). He enquired from G.K.Khurana regarding DAP fertilizer, who replied that they are in possession of 600-700 bags of DAP fertilizer at Ferozepur. He further deposed that he purchased 120 bags of DAP fertilizer. Mr.Khurana requested him to supply draft in the name of NFL Moga and the VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -8- fertilizer is to be supplied at the official rate. He also deposed that Pardeep Kumar Setia also came there. He also enquired and Khurana also told him that they should supply bank drafts. After 14-15 days, two trucks of DAP fertilizers were sent to his shop. Earlier, he had sent message on telephone. He further deposed that the fertilizers were not supplied on the shop of M/s Yash Pal and Company. PW-14 Sunil Kumar also deposed regarding purchasing and preparing demand drafts at the instance of G.K.Khurana and he stated that he had obtained 50 bags of DAP fertilizer. He stated that truck was unloaded in front of shop of Shoba Ram and shop of Yash Pal is adjoining to the shop of Shoba Ram. PW-15 Mohan Singh Rattan, Senior Marketing Manager, NFL, Bathinda mainly identified the signature of Gulshan Kumar Khurana on Ex.P22. PW-16 R.K.Arora, Chief Manager stated that on 29.09.1993, he was posted as Chief Manager at State Bank of India, Fazilka. On that day, a draft for an amount of `30,000/- was issued by their bank in the name of NFL, Moga at the instance of Yash Pal and he also proved the certificate Ex.P29. PW-17 Suresh Kumar also deposed that he prepared demand draft of `40,000/- at the instance of G.K.Khurana. PW-18 Sunder Lal Dhinga also deposed regarding preparing of draft of `30,000/- at the instance of G.K.Khurana. PW-19 G.D.Bhutani, Deputy Manager brought the summoned record and proved Ex.P29 and 31. PW-20 Pardeep Setia, did not support the prosecution version and turned hostile. He simply stated he got prepared a draft in the name of NFL Moga and that draft was handed over by him to VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -9- Shoba Ram.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent.
In defence, accused-appellants examined DW-1 Chetan Dass, who brought the summoned record. DW-2 Jaswant Singh, ADO, who brought original application and proved the photocopy. Appellant Gulshan Kumar Khurana appeared himself as DW-3 and deposed as per defence version.
The learned trial Court, after appreciation of the evidence, convicted and sentenced the accused-appellants, as stated above.
At the time of arguments, learned counsel for the appellant Gulshan Kumar Khurana argued that M/s Yash Pal and Company was authorized dealer of M/s Amar Nath and it has licence to sell DAP and also sub-dealer of M/s Amar Nath. He further argued that Yash Pal accused has sent the drafts being sub-dealer of M/s Amar Nath and no offence is made out against appellant Gulshan Kumar Khurana, who has acted bonafidely. He next argued that violation of government instructions for supplying two bags of fertilizers per farmer, in no way, amount to commission of the offence. He further contended that appellant Gulshan Kumar Khurana has been falsely implicated in the present case and there is no evidence on the record to show any conspiracy with the other accused. Learned counsel for the appellant Yash Pal, at the time of arguments, admitted that Yash Pal was not having licence to sell DAP and at that time, he was also VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -10- not the sub-dealer. He further argued that as deposed by PWs, they have prepared the drafts and the fertilizers were supplied to them directly by Gulshan Kumar Khurana. Therefore, he argued that no case is made out by the prosecution against appellant Yash Pal by leading cogent evidence.
On the other hand, learned State counsel argued that case of the prosecution has been duly proved. The order was placed by M/s Yash Pal and Company by writing a letter along with demand drafts obtained from Shobha Ram etc. and the release order was issued in the name of M/s Yash Pal and Company. As per the drivers of the trucks and gate passes etc., the delivery was given to M/s Yash Pal and Company, who after receiving the delivery, has signed the same. Learned State counsel further argued that Yash Pal has not entered the fertilizers in the stock register and has sold the same without any authority. Hence, both the accused i.e. Gulshan Kumar Khurana and Yash Pal have committed offence and have been correctly convicted and sentenced. Learned State counsel, therefore, argued that there being no merit in both the appeals, the same should be dismissed.
I have heard learned counsel for the appellants as well as learned State counsel and have gone through the record minutely and carefully.
From the evidence on record, I find that there is no merit in the arguments of learned counsel for the appellants. As per the licence issued to Yash Pal, which is Ex.P3, though, he was authorized VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -11- to sell the DAP but he was not authorized to deal with the fertilizers of NFL. M/s Amar Nath was dealer and Yash Pal, who was earlier sub dealer, at that time was not the sub dealer. The licence also shows that he was not the sub dealer of M/s Amar Nath and could not deal with fertilizers in question in this case. Further, from the record, I find that though six drafts have been sent and five of them prepared by other persons but accused Yash Pal signed letter Ex.P16, which he sent asking for supply of 30 metric ton of DAP and this letter was written to the Area Manager, NFL Moga. Further, two truck drivers i.e. PW-11 and 12 have deposed regarding loading of the fertilizers and the gate passes Ex.P17 and 18, which have been duly proved. These drivers have deposed that they have unloaded the fertilizers i.e. about 500 bags on the shop of Yash Pal. This statement of drivers has been duly supported by another witness, who brought the record of truck union.
Next, I find that there are receipts Ex.P19 and 20, which further support and corroborate the prosecution version. The PWs, as discussed above, have stated that the delivery order etc. has been issued by Gulshan Kumar Khurana knowing fully well that Yash Pal was not an authorized person. I have gone through the letter Ex.P16, which is issued on the letter pad of M/s Yash Pal and Company and which was written by Yash Pal to the Area Manager, NFL and it shows that M/s Yash Pal and Company had placed the order with the NFL Moga and at that time, Yash Pal was not having any licence nor he was the sub dealer of M/s Amar Nath. The documents Ex.P17 and VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -12- P18 also shows that through truck bearing registration No.PB-05-9686 driven by driver Surinder Kumar, 250 bags were sent to M/s Yash Pal and Company care of M/s Amar Nath. Similarly, through truck bearing registration No.HYN-4367, driven by driver Sohan Singh, 250 bags were sent to M/s Yash Pal and Company. The other documents placed on the record also shows that delivery was issued to M/s Yash Pal and Company and Yash Pal, admittedly, was neither sub dealer of M/s Amar Nath nor he was having any licence. The delivery of the fertilizers through receipts Ex.P-19 and 20 has also been proved on the record which further shows that these receipts have been issued by Yash Pal and Company and the name of consignee in these receipts has been shown as Yash Pal and Company. The version given by some private witnesses that they have received the fertilizers directly from Gulshan Kumar Khurana is not supported and corroborated by any documentary evidence.
From the evidence on record, it is duly proved that Yash Pal and Gulshan Kumar Khurana, in connivance with each other, have committed violation of the Essential Commodities Act and Fertilizer Control Order. Gulshan Kumar Khurana was knowing fully that M/s Yash Pal and Company has no licence to deal with these fertilizers and cannot sell the same and cannot place the order. Yash Pal by placing the order of the delivery of the fertilizer with the NFL without being having any licence and after receiving the same, sold the same and even without entering the same in his stock register.
The perusal of the evidence on record shows that VINEET GULATI 2015.03.16 15:52 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-1766-SB of 2003 and connected appeal -13- appellants have been rightly convicted. The prosecution has duly proved its case beyond reasonable doubt by leading cogent evidence against the appellants. There is nothing on the record to disbelieve the evidence, especially the documentary evidence. Therefore, the judgment of conviction dated 15.09.2003 passed by learned Special Judge, Ferozepur is correct, as per law and the same is upheld.
Learned counsel for the appellants, in the alternative, prayed for reduction of sentence.
Keeping in view the facts and circumstances of the present case, the fact that appellants are first offender and the matter is pending since 1993 and the appellants are suffering from long protracted criminal proceedings, the sentence of the appellants is reduced to rigorous imprisonment for a period of one year instead of three years and in default of payment of fine, to undergo rigorous imprisonment for a period of two months instead of nine months. However, the sentence of fine shall remain the same.
With the above-modification of the sentence, both the appeals stand dismissed.
Since, appellants Gulshan Kumar Khurana and Yash Pal are on bail, their bail bonds stand annulled. They are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
January 22, 2015 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2015.03.16 15:52
I attest to the accuracy and
authenticity of this document
Chandigarh