Punjab-Haryana High Court
Ram Lubhaya And Another vs State Of Punjab on 19 January, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-299-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-299-SB of 2000
Date of decision: 19.01.2011
Ram Lubhaya and another
........ Appellants
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
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PRESENT: Mr. APS Shergill, Advocate, for the appellants.
Mr. P.S. Grewal, AAG, Punjab.
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JORA SINGH, J.
Ram Lubhaya and Jasbir Singh, partners of M/s Fazalpur Khad Store, G.T. Road, Khilchian, District Amritsar, preferred this appeal to challenge the judgment of conviction and order of sentence dated 7.3.2000, rendered by the Special Judge, Amritsar, in Special Case No. 13 of 1991/1997, arising out of FIR No. 110 dated 23.9.1989, registered under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred as 'the Act), at Police Station Beas.
By the said judgment they were convicted under Section 7 CRA-S-299-SB of 2000 -2- of the Act and were sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of ` 2000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of three months each.
Third accused namely Amit Kumar, Manufacturer, was also prosecuted along with the present appellants. He was also convicted under Section 7 of the Act and was directed to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months.
Amit Kumar, filed CRA-S-276-SB of 2000, to challenge the impugned judgment dated 7.3.2000, passed by the learned Special Judge, Amritsar, but appeal filed by Amit Kumar, was dismissed by this Court vide judgment dated 7.5.2010.
Prosecution story, in brief, is that on 14.6.1989, Baldev Singh, Fertilizer Inspector (Enforcement), Amritsar, had inspected the premises of M/s Fazalpur Khad Store, G.T. Road, Khilchian. Ram Lubhaya was found present. Baldev Singh, after disclosing his identity as Fertilizer Inspector, issued notice of his intention to draw sample of zinc sulphate. Signatures of Ram Lubhaya were obtained on the notice and seized 20 bags containing 10 kg each of spurious zinc sulphate, out of which samples were drawn and were taken into custody with the approval of Sub Divisional Magistrate, Bakala. Through Sh. Barasi Dass, Agricultural Sub Inspector, sample was sent to the laboratory for CRA-S-299-SB of 2000 -3- analysis. As per report of Analytical Chemist, sample was found containing zinc to the extent of 0% as against 21% and also existed variation which can only be 19%. The Chief Agricultural Officer, Amritsar, reported that the accused has violated the provisions of Fertilizers Control Order, 1985, punishable under Section 7 of the Act. After completion of investigation, challan was presented in the Court.
Accused were charge-sheeted under Section 7 of the Act, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined 10 witnesses.
PW-1 Banarsi Dass, Agricultural Sub Inspector, had deposited the sample parcel with the Fertilizer Quality Control Laboratory, Ludhiana, with seals intact on 15.6.1989.
PW-2 Constable Mangat Ram , stated that he was with the police party headed by SI Lekh Raj. Police party had gone to Delhi in connection with the investigation of this case. One Bharat Bhushan produced a chit of Baby Transport Company and another photocopy on which Sir India Chemical was written. Documents Ex. P-1 and Ex. P-2 were taken into police possession vide memo Ex. PA, attested by the witnesses. Amit Kumar was arrested. Bill of the fertilizer Ex. P-3 was also taken into police possession vide memo attested by the witnesses.
PW-3 Baldev Singh, Fertilizer Inspector is the complainant who had inspected the premises of M/s Fazalpur Khad Store, Khalchian, on 14.6.1989 and had drawn sample from 20 bags meant for sale. CRA-S-299-SB of 2000 -4-
PW-4 Surinder Kumar Sharma, Postal Assistant, stated that Post Box No. 1525, was allotted to M/s Ball Bearing and Machinery, Corporation, Delhi on 24.9.1988. Earlier this post box number was allotted to M/s Sir India Chemicals and Fertilizers, Delhi-6.
PW-5 Bharat Bhushan, stated that he is the owner of DCM Toyota, bearing registration No. DBL-5362 and this vehicle was attached with Baby Transport Delhi. Chit Ex. P-1 was issued by Baby Transport Serving in the name of Amit Kumar. Fertilizer bags were to be loaded in his truck. Yakub Khand was the driver.
PW-6 Ishwar Chander, stated that as per bill Ex. P-3, Alum powder (Phatkari) was sold to M/s Sir India Fertilizers Private Limited and the bill was produced before the police and the same was taken into possession vide memo Ex. PB, attested by him.
PW-7 Jasbir Singh Mahal, Joint Director, Agricultural, Punjab, Chandigarh, stated that complaint dated 23.8.1989, Ex. PJ, was signed by him and was sent to Senior Superintendent of Police, Majitha, for registration of the case. Licence was issued in favour of M/s Fazalpur Khad Store, G.T. Road, Khalchian. Ex. PF, is the copy of the licence. Partnership deed was also produced before him and as per partnership deed Ram Lubhaya is the partner of the firm. Ex. PG is the partnership deed. Sample of the fertilizer was declared sub standard. After that notice was issued to the accused.
PW-8 Inder Sen Aggarwal, stated that Amit Kumar, accused was his tenant on the Ist floor.
CRA-S-299-SB of 2000 -5-
PW-9 Darshan Singh, Advocate, stated that on 8.5.1990, he was serving as Executive Magistrate, Amritsar and on that day application Ex. PW-9/A was presented before him then he passed order Ex. PW-9/B. Specimen signatures of Amit Kumar @ Ishwar Verma, were taken.
PW-10 Balwant Singh, stated that licence Ex. P-2 was issued by him and affidavit Ex. PW-10/A, was given by Ishwar Verma, accused present in the Court.
After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. They denied all the allegations of the prosecution and pleaded to be innocent.
In defence, DW-1 Gurdev Singh, Agricultural Development Officer (Enforcement), Amritsar, appeared and stated that Ex. D-1, is the copy of the report bearing No. AR.327 dated 20.6.1989.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on file.
After arguing for some time, when learned defence counsel for the appellants failed to point out any infirmity or illegality in the impugned judgment then stated that appeal of co-accused namly Amit Kumar was dismissed. Sentence was reduced to one year. Appellants CRA-S-299-SB of 2000 -6- are the partners of M/s Fazalpur Khad Store, G.T. Road, Khalchian. At the time of occurrence, one of the appellant namely Ram Lubhaya was 42 years old whereas Jasbir Singh was 40 years old. Already they have undergone 24 days. Requested to take lenient view.
Learned State counsel argued that 20 bags of zinc sulphate manufactured by M/s Sir India Chemicals and Fertilizers Limited, Post Box No. 1525, New Delhi, were seized meant for sale by M/s Fazalpur Khad Store, G.T. Road, Khalchian. Appellants were the partners of the above said firm. As per report of the laboratory, sample was found to be sub standard. Occurrence pertains to the month of June, 1989. No objection if lenient view is taken.
No doubt, learned defence counsel for the appellants has not seriously challenged the impugned judgment and simply requested to take lenient view because appeal of co-accused namely Amit Kumar, was dismissed vide order dated 7.5.2010, passed by this Court in CRA- S-276-SB of 2000, on the basis of same evidence. Main point is whether fertilizer bags were recovered from the possession of the appellants and sample drawn was found sub-standard.
Baldev Singh (PW-3), Fertilizer Inspector, when appeared in Court then stated that sample of Zinc Sulphate was drawn from the premises of the accused as per procedure and as per report of the laboratory sample was found to be of sub-standard. Witness was cross- examined at length but nothing on the file to ignore the statement of Baldev Singh who was not inimical towards the appellants earlier to the CRA-S-299-SB of 2000 -7- present occurrence. Ex. PA is seizure memo, vide which bill Ex. PB was taken into possession. Form-J, Ex. PC, receipt of fertilizer Ex. PE, were issued by Ram Lubhaya. He was the partner of the firm and was present at the time of raid. Ex. PG is the partnership deed. As per this deed Ram Lubhaya and Jasbir Singh were the partners of M/s Fazalpur Khad Store, G.T. Road, Khalchian. No suggestion to the witness that Ram Lubhaya or Jasbir Singh were not the partners.
Banarsi Dass (PW-1), had deposited the sample parcel in the office of Fertilizer Quality Control Laboratory, Ludhiana, with seals intact. Report is to the effect that seals were found intact. No chance of tampering with the case property. Appellants when examined under Section 313 Cr.P.C. then simply stated that case is false. No complaint to any authority that case is false. Ram Lubhaya, appellant was present at the spot and deposed that fertilizer was purchased from M/s Sir India Chemicals and Fertilizers, 644-Mudka Mor, Nangloi, Delhi. Affidavit Ex. P-25 shows that Amit Kumar, was the Managing Director of M/s Purnima Pesticides Private Limited on the relevant date i.e. 30.9.1989. PW-6 Ishwar Chander, stated that Alum Powder was sold to M/s Sir India Chemicals and Fertilizers, vide bill Ex. P-3. Ex. D-1 is the copy of the report but report Ex. D-1 relates to ferrous sulphate. No question to PW-3 Baldev Singh, that on the same day any other sample was drawn other than the sample of zinc sulphate and the sample was found to be of sub-standard. So statement of DW-1, is not helpful to the appellants.
In view of the oral as well as documentary evidence, there is CRA-S-299-SB of 2000 -8- no infirmity or illegality in the impugned judgment. No reason to differ. Impugned judgment on the point of conviction is upheld.
Occurrence is dated 14.6.1989 and at that time Ram Lubhaya, was 42 years old whereas Jasbir Singh was 40 years old. They are the first offenders and have already undergone 24 days. Ends of justice would be fully met if lenient view is taken.
Keeping in view the facts of the case, I take lenient view and direct the appellants to undergo rigorous imprisonment for one year instead of two years. Fine maintained.
For the reasons recorded above, appeal without merits is dismissed with modification on the point of sentence.
Appellants are on bail. They are directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which learned Chief Judicial Magistrate, Amritsar, is directed to issue re-arrest warrants against the appellants to undergo remaining imprisonment as ordered by the trial Court.
January 19, 2011 ( JORA SINGH ) rishu JUDGE