Allahabad High Court
Anwar Ahmad vs State Of U.P. on 30 March, 2026
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:66434
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2646 of 1986
Anwar Ahmad
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Abhay Raj Singh, R.C. Shukla
Counsel for Respondent(s)
:
A.G.A.
Court No. - 75
HON'BLE SAMIT GOPAL, J.
1. Heard Shri Abhay Raj Singh, learned counsel for the appellant, Shri V.D. Ojha, learned AGA for the State and perused the records. The paper-book of this matter has been prepared and the trial court records are also available which have been perused.
2. This appeal has been preferred against the judgement and order dated 3.10.1986 passed by the Special Judge, Bareilly in Criminal Case No. 20 of 1985 (State of UP v. Anwar Ahmed), Police Station- Shergarh, District- Bareilly, by which the accused appellant has been convicted and sentenced under Section 3/7 of the Essential Commodities Act for six months rigorous imprisonment. Further, the trial court has directed that the seized diesel will stand forfeited to the State.
3. The prosecution case, as per the recovery memo dated 12.1.1985, which is Exhibit Ka-1 to the records, is that on 12.1.1985, the S.O., Shergarh, on receiving information, reached the house of the accused at about 12:50 P.M. along with police personnel, where the accused was present and two drums of diesel oil were also found stacked. One of the drums was open and a measure of one liter was in the hand of the accused along with a vessel for storage in his other hand. He was in the process of giving oil to one Devki Nandan who was also present there along with a vessel for it in his hand. The accused has no license to deal with diesel. The team of police thereafter, took the drums of diesel and the accused, in custody. On measuring it, one of the drums was found containing 215 liters of diesel, which was sealed. The other open drum was having around 25 liters of diesel. The measuring vessel which was in one of the hands of the accused was also taken into custody. The recovery memo was drawn and the accused was brought to the police station.
4. A first information report as Case Crime No. 4 of 1985 under Section 3/7 of the Essential Commodities Act, Police Station Shergarh, District Bareilly, was then lodged by one Bharat Ratna Warsney against the accused appellants on the basis of the said recovery and arrest memo. The same is as Exhibit Ka-2 to the records.
5. The matter was investigated and charge sheet no. 16 dated 6.4.1985 was submitted under Section 3/7 of the Essential Commodities Act against the accused. The genuineness of the same was admitted by the defence as per note made therein dated 9.7.1985; the same is as Exhibit Ka-6 to the records.
6. The accused in his statement recorded on 27.2.1986 denied the prosecution case.
7. The trial in the matter started in which, Bharat Ratna Warsney, the officer who conducted the raid and arrested the accused, was examined as PW-1. The defence counsel further admitted the genuineness of the site-plan as Exhibit Ka-4 and the order of sanction of the District Magistrate Exhibit Ka-5. No other prosecution witness was examined. The accused in his statement recorded under Section 313 CrPC on 18.9.1986 denied the prosecution allegations to be false in full; however, no defence evidence was led.
8. PW-1- Bharat Ratna Warsney, S.O., Police Station Shergarh, District- Bareilly reiterated the facts as narrated in the arrest and recovery memo on the basis of which, the FIR of the present matter was lodged and proved the arrest and recovery memo as Exhibit Ka-1 and then, the FIR as Exhibit Ka-2, which was stated by him to have been transcribed by Constable Clerk- Mashoor Ahmed, whose writing was known to him and he identified it. He also proved the corresponding G.D. no. 19 which was also transcribed by the same constable and proved and identified it as Exhibit Ka-3. In his cross-examination, he states that he was posted at the said police station and the area where the house of the accused is situated, lies within the said police station. He further states that both the drums of diesel were kept outside the house of the accused on the Chabootara. He denies the suggestion that the drums were kept in front of a shop. He states that the Investigating Officer prepared the site plan on his showing and pointing out. He further states that in the said house, apart from the accused, his father and brother also lived. He does not know whether they live separately or together. He further states that he does not know whether the father of the accused has a shop or not. He states that as per looks, the accused was about 20-25 years of age. He further states that he had taken the witnesses from the way while going for the raid. He states that when he arrested the accused, the person present there for purchase of diesel, went away and he did not make any effort to arrest. He states that Devki Nandan was trying to purchase the diesel, he knew him from before. Apart from Devki Nandan, there was no other person present at the said place. The accused neither took money from Devki Nandan nor gave any material to him. He states that diesel is used in tractor and tube-well.
9. He further states that in Shergarh Kasba, many people have tractors and engines; accused Anwar does not have it. The accused is a Mason. He denies the suggestion that he did not arrest the accused from the spot selling diesel.
10. The trial court, finding the prosecution evidence to be truthful and the prosecution proving its case beyond reasonable doubt, and further that diesel was found to have been stored, exhibited for sale at the house of the accused while being kept on the Chabootara, and he was not holding any license for the same, convicted and sentenced him as above.
11. Learned counsel for the appellant submitted that he does not press this appeal on merit, but his only submission is that looking to the sentence as awarded, the period of 41 years has elapsed since the recovery and arrest was affected and further the fact that, although, the accused in his statement under Section 313 CrPC in the year 1986 had disclosed his age as 19 years, but the trial court opined it to be around 22 years, and now he must be around 62 years of age and further, looking to the fact that the accused has undergone about 18 days in custody, the sentence be undergone and appropriate fine be imposed in the matter. He submits that fine, if imposed, shall not be construed to be an enhancement of sentence.
12. Learned AGA for the State opposes the present appeal by submitting that the prosecution has proved its case beyond reasonable doubt and there is no irregularity or illegality in the appeal, but does not strenuously oppose the argument of the learned counsel for the appellant regarding the period elapsed since the present incident has taken place. He although, submits that the period as stated to have been undergone in jail by the accused-appellant is incorrect, inasmuch as the accused-appellant filed a bail application before the trial court concerned on 15.1.1985, on which he was granted bail on 16.1.1985, after which, he was convicted on 3.10.1986 for the sentence as stated above, but vide the said order dated 03.10.1986, he was enlarged on interim bail, subsequent to which, he was granted bail by this Court on 15.10.1986 and since then, he is in jail. It is submitted that the argument of the learned counsel for the appellant is that the appellant has undergone 18 days in jail is totally false and erroneous inasmuch as the only period undergone by him is one day, which is from 15.1.1985, being the day of filing the bail application before the trial court concerned, till 16.1.1985, being the day on which he was granted bail. It is submitted that if the Court levies fine upon the appellant, a reasonable fine should be imposed as even looking to the recovery from his house and he being prepared to sell the diesel, wherein he was caught with the articles of measurement through which it was to be sold his implication in the matter is proved beyond reasonable doubt.
13. After having heard the learned counsel for the parties and perusing the records, it is apparent that the accused-appellant was found to be in the process and selling diesel from a drum which was kept at the Chabootara outside his house on 12.1.1985. He was found having a measuring article in one of his hands and an article to take out diesel from the drum in his other hand. He was thus, apprehended from the spot along with two drums of diesel, in which, one sealed drum was having around 215 liters of diesel and the other open drum was having 25 liters of diesel, along with articles of measurement and article to take out diesel. He was arrested on the spot and the articles kept there, along with articles in his hands were taken into possession and the recovery memo was prepared. No licence could be shown by him for it. In the statement of the accused recorded under Section 313 CrPC, the trial court opined his age to be about 22 years in the year 1986. As of now, he is around 62 years of age. During the pendency of the investigation/trial, he suffered incarceration for a day. The seized articles have been ordered to be confiscated in favour of the State. The evidence of PW-1, who is the sole prosecution witness, goes to show that the said house was being used by the father and brother of the appellant also, for living. PW-1 further states that the accused-appellant was a 'mason' by profession. Although, he was apprehended while having articles of dispensing with diesel and measuring it, and diesel was also found at the said place, which was taken into custody, but the fact that the person who had come for purchase of the diesel, being Devki Nandan, was not produced and examined in the trial. The charge-sheet of the matter, which is Exhibit Ka-6 to the records, whose genuineness has been admitted by the defence, goes to show that Devki Nandan was interrogated as a witness in the matter but still he was not produced and examined in the trial. There is no reason given by the prosecution for it.
14 . Looking to the facts that the present case is of about 40 years ago and the appellant is now of about 62 years of age, and also to the discussion made above, it would be a fit case where although, the judgement and order of conviction is maintained, but the sentence as awarded to the appellant, is ordered to be undergone but with the fine of Rs. 25,000/- to be deposited by him before the trial court concerned, within a period of 30 days' from today for its utilisation by the District Legal Service Authority. If the said fine is not deposited within the stipulated period, the appellant shall be taken into custody to serve out the sentence awarded by the trial court concerned.
15. The appeal thus, is partly allowed.
16. In so far as the order of confiscation is concerned, the same is not interfered with, and the material as seized, shall be confiscated to the State, as directed by the trial court concerned.
17. Let this judgement along with the trial court records be remitted to the trial court concerned by the Registrar (Compliance) for information and necessary action, within a week.
(Samit Gopal,J.) March 30, 2026 Rama Kant