Gujarat High Court
Kanbi Patel Prataprai Bhagwanji vs State Of Gujarat And Anr. on 14 February, 1995
Equivalent citations: (1996)1GLR179
JUDGMENT J.N. Bhatt, J.
1. In this appeal, the appellant-original accused has questioned the legality and validity of the judgment and order of conviction and sentence recorded in Summary Case No. 3 of 1985 by the learned Additional Sessions Judge, (Special Court) at Bhavnagar, by invoking aids of Section 374(2) of the Code of Criminal Procedure, 1973 ('the Code' for short).
2. The appellant is the original accused and respondent No. 2 is the original complainant. For the brevity's sake and convenience, they will be referred to as the accused and the complainant as they are arraigned before the Special Court. The accused is a licensed dealer and is running a fair price shop and dealing in foodgrains, oil, kerosene etc. at village Kamlej in Bhavnagar district since 1980. The complainant-inspector in the Civil Supplies Department at Bhavnagar made a surprise visit of the shop of the accused on 28-11-1984 and noticed some irregularities in maintenance of daily stock registers, accounts and maintenance of copies of bills. Therefore, he held an inquiry. The accused also made a confessional statement admitting irregularities and violation of provisions of law. The confessional Statement of the accused recorded by the complainant is produced at Exh. 11. After obtaining requisite sanction, a complaint was lodged by the Supply Inspector before Vartej Police Station on 5-4-1985. The accused was charge-sheeted before the learned Additional Sessions Judge (Special Court) at Bhavnagar in Summary Case No. 3 of 1985. The charge was framed against the accused by the Special Court for the alleged offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 ('the Act' for short) to which the accused pleaded not guilty. The prosecution relied on the evidence of four prosecution witnesses, documentary evidence of bills, confessional statement of the accused, and after examining the facts and circumstances and the evidence on record, the Special Court found the accused guilty and passed the impugned order of conviction and sentence on 28-11-1986. By virtue of the impugned judgment, the accused is held guilty and is sentenced to 3 months' Rule 1. and fine of Rs. 500/- and in default, further R.I. for seven days for the offences punishable under Section 3(2)(c) read with Section 7 of the Act read with Clauses 22 and 23 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 ('1981 Order' for short). Being aggrieved by the said order of conviction and sentence, the original accused has now come up in this appeal before this Court challenging its legality and validity.
3. Learned Advocate for the accused Mr. D.U. Shah has raised the following contentions:
1. That the alleged confessional statement of the accused recorded by the complainant is hit by the provisions of Sections 22 and 25 of the Code and also violative of the Constitutional guarantee enshrined in Article 20(2) of the Constitution.
2. That there is no compliance of the procedural requirement for seizure as no Panchas were called and no Panchnama was drawn.
3. That the impugned conviction and sentence judgment is otherwise also vulnerable as there is no reliable and trustworthy evidence to transfix the culpability of the accused for the said offences.
4. The aforesaid contentions are countenanced by the learned A.P.P. Mr. B.D. Desai.
5. The prosecution has relied on the confessional statement which is produced at Exh. 11 which is challenged on the following premises:
1. That the Supply Inspector-complainant was not authorised to record such a statement.
2. That the confessional statement is hit by the provisions of Sections 24 and 25 of the Evidence Act.
3. That the said confessional statement is also violative of the constitutional guarantee enshrined under Article 20(3) of the Constitution.
4. That the manner and mode and the surrounding circumstances in which such a statement is recorded by the complainant; and
5. It cannot be otherwise relied on account of retraction by the accused.
6. The complainant was the Supply Inspector at the relevant time who had made a surprise visit of the shop of the accused on 28-11-1984. The accused is a licensed fair price shop dealer and dealing with grocery items by running a shop as village Kamlej in Bhavnagar district at the relevant time. The prosecution case is that after the surprise visit, the complainant found that there were irregularities in maintenance of accounts, stock registers and issuance of bills to the card-holders. Therefore, he examined the documents. Upon examination of the documents and the physical verification, he found the following:
(1) This licensee had purchased 1200 litres (6 barrels) of kerosene on 27-11-1984 from Mehta Automobiles, Bhavnagar by bill Nos. 274, 275, 276, 277 and 336 out of which he had taken the delivery of one thousand litres (five barrels) of kerosene. He had not taken the delivery of 200 litres (one barrel) shown in bill No. 336. Out of the delivery of five barrels, which he had taken, the purchase price of one barrel was Rs. 372/- of the stock of 400 litres of kerosene, i.e., two barrels. This stock was required to be sold to the customers at the prescribed rate. Despite this, he had sold the said stock in black market at the rate of Rs. 450/- per barrel in Bhavnagar and thereby he has committed illegality and irregularity. This stock of 400 litres of kerosene was not sold to the customers but the fictitious bills in the names of the customers were prepared and false accounts have been written by preparing false stock register. The licensee has admitted this fact before me in his statement recorded on 28-11-1984. The driver Mithabhai Samanbhai of tempo No. GTS 8042 in which this stock was brought has stated before me on 28-11-1984 in his statement that he had only brought three barrels of kerosene from Bhavnagar.
It could very well be seen from the aforesaid tabular information that the complainant noticed that the accused had sold away two barrels of kerosene at higher rate and had committed breach of Clause 22 of the 1981 Order. It was also noticed by him that there was difference between the stock register and physical verification of the stock of sugar, rice and palmolin oil. He also found that instead of issuing bills to the card-holders attached with the said fair price shop, a note was made in the exercise book produced at Ex. 14. The bills were collected in respect of purchase of kerosene. The accused had purchased 1200 litres of kerosene (six barrels) from a licence-holder at Bhavnagar to one Mehta Automobiles on 27-11-1984 vide Bills Nos. 274, 275, 276, 277, 278 and 336 out of which the accused had taken delivery of 1000 litres of kerosene (five barrels). He had also taken delivery memo in respect of 200 litres (one barrel). However, delivery as such was not taken. 400 litres of kerosene was sold in excess of controlled price of Rs. 372/73 per barrel and as such, charged Rs. 450 per barrel. Thus, the accused was found to have indulged in black-marketing activity, by the complainant. In course of the inquiry, the accused made a confessional statement on the same day before the complainant.
7. In view of the inquiry and documentary evidence of bills and exercise book and the confessional statement of the accused and statements of other witnesses, he sought sanction for filing prosecution against the accused. After getting requisite sanction, a complaint came to be filed on the basis of which charge-sheet followed. In Summary Case No. 3 of 1985, charge was framed at Exh. 5 by the learned Additional Sessions Judge (Special Court), Bhavnagar and after considering the facts and circumstances and evidence on record, the impugned conviction and sentence order came to be passed.
8. It may also be mentioned that confession made before the complainant on 28-11-1984 came to be retracted in the course of examination of the accused under Section 313 of the Code. For the first time, the accused stated on 17-11-1986 before the Special Court after the evidence was recorded that his alleged confessional statement was taken by the complainant under threat and compulsion and that the complaint came to be filed falsely against him.
9. Section 24 of the Evidence Act provides that confession by inducement, threat or promise would be irrelevant in the criminal proceedings. Section 24 reads as under:
24. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to be Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it, he would gain any advantage or aviod any evil of a temporal nature in reference to the proceedings against him.
To attract prohibition enacted in Section 24, the following facts ought to be established:
(i) That the statement in question is a confession;
(ii) That such confession has been made by the accused person;
(iii) That it has been made to a person in authority;
(iv) That the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority;
(v) That such inducement, threat or promise must have reference to the charge against the accused person and;
(vi) That the inducement, threat or promise must, in the opinion of the Court, be sufficient to give the accused person grounds, which would appear to him reasonable, for supposing that by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. A statement in order to amount a 'confession' must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. It is also a settled proposition of law that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a serious charge in a case like the one hand, the prosecution demands a conviction of the accused, primarily, with the help of confession recorded, it must be shown by applying a double test (i) whether the confession was perfectly voluntary? and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a condition precedent for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24 of the Evidence Act, it must be excluded and in such a case, obviously, therefore, application of Section 24 would not arise. If the first test is successfully established, then, in that case, the Court is required to consider further whether such a statement is true and reliable for judging the reliability of such confession or for that matter, any substantive piece of evidence, there cannot be any rigid canon of universal application. However, the Court should consider the overall picture emerging from the record alongwith confessional statement and not that confessional statement, alone should form the basis for conviction particularly more so, when the confession is retracted. It must be noted that even retracted confession can be acted upon and relied on by the Court if substantially corroborated by independent circumstances. It is also very well established proposition of law that it is not necessary that confessional statement should be corroborated in each material particular but it is sufficient that there is a general corroboration of important incidents mentioned in the confession. The apex Court in State of U.P. v. Bootasing, has held that retracted confession should be relied on provided it is substantially corroborated. Thus, general corroboration with important aspects and incidents mentioned in the confession must be considered. Therefore, it would be necessary to consider whether the confessional retracted statement in the present case is true, reliable or not. Of course, it is retracted only during the course of the examination of the accused under Section 313 of the Code pleading that it was not voluntary but was taken under threat, compulsion and duress. The Special Court has found on the assessment of the evidence on record that it was out of free volition and voluntary and in the circumstances, it cannot be said to be a forced one or involuntary.
10. Section 25 of the Evidence Act is also relied on which inhibits confession before the police officer as an offence. Thus, confession to a police officer cannot be proved and cannot be relied on. Section 25 reads as under:
No confession made to a police officer, shall be proved as against a person accused of any offence.
The contention raised on behalf of the accused is that confessional statement at Exh. 11 is also hit by Section 25 as it is recorded by the complainant who is a Supply Officer, during the course of inquiry. Reliance is also placed on the provisions of Clause 26 of the 1981 Order. Clause 26(1)(ii) prescribes that any Civil Supply Officer not below the rank of a Supply Inspector, any Revenue Officer not below the rank of a Deputy Mamlatdar or any police officer not below the rank of Sub-Inspector of Police and any other officer not below the rank of a Class II Gazetted officer authorised by the State Government is entitled to ask for any person all necessary questions. In that, it is submitted that the Supply Officer is not entitled to record a confessional statement. He could only inquire or ask but he cannot record the statement of the accused while execising powers under Clause 26, as contended by the learned Advocate for the accused. Reliance is also placed on Clause 26(2), in that, it is contended that the Supply Officer had not observed the requirements of provisions of Section 100 of the Code relating to search and seizure.
11. The contention that confessional statement is also violative of provisions of Article 20(1) of the Constitution is raised to convince this Court that confessional statement is illegal and not reliable. It may firstly be noted that the Supply Inspector before whom the confessional statement came to be made by the accused cannot be said to be a police officer. The primary test for determining whether an officer is a police officer or not is, whether the officer concerned under the Special Act has been entrusted with all powers exercisable by an officer-in-charge of a police station under Chapter 14 of the Code qua investigation of offence under that Act including power to initiate prosecution by submitting charge. It is thus settled proposition of law that in order to bring him within the purview of 'police officer' for the purpose of Section 25 of the Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code. An officer who has no power to initiate prosecution for filing charge-sheet before the Magistrate concerned under Code is a clinching attribute of an investigating 'police officer'. Having examined the scheme of the 1981 Order in relation to the functions and duties of the Supply Inspector, it can safely be said that the Supply Inspector though has powers for inquiry, search, seizure, has no power to charge-sheet the accused which is the most attribute of a police officer. Therefore, the Supply Inspector cannot be said to be a police officer and, therefore, any confessional or incriminating statement recorded by him in the course of inquiry under Clause 26 could be proved. The view which this Court is inclined to take is very much reinforced by the decision of the Apex Court in Balkishan v. State of Maharashtra, . In that case, the Supreme Court has held that primary test for determining whether an officer is a police officer is: Whether the officer concerned under the Special Act has been invested with all the powers exercisable by an officer-in-charge of a police station under the Code qua investigation of offences including the power to initiate prosecution by submitting a report (charge-sheet), and further observed that an officer of the railway protection force making an inquiry in respect of an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 is not a police officer. Similarly, in State of Punjab v. Barkat Ram, , the Supreme Court has observed that the expression 'police officer' has, however, not such a wide meaning as to include persons on whom certain police powers are conferred. It is also observed that custom officer is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties and held that the custom officer under the Customs Laws is not a police officer for the purpose of Section 25 of the Evidence Act. Considering the facts and circumstances and the powers of the Supply Inspector under the 1981 Order, he cannot be said to be a police officer. Therefore, any confessional statement made by a person would not be hit by the provisions of Section 25 of the Evidence Act. Under the circumstances, the contention that confessional statement made by the accused before the Supply Inspector is hit by provisions of Section 25 of the Evidence Act cannot be sustained. The Special Court has also rightly found that the confessional statement Exh. 11 relied on by the prosecution is not tainted by any threat, inducement or promise. It may be recalled that retraction came to be made only for the first time during the course of the examination of the accused under Section 313 of the Code. No doubt, the retraction came to be made at the end of the trial which has not changed the nature of the statement. It remains as a retracted statement of the accused. Independently of that, this Court has also found in the circumstances emerging from the record of the present case that the confessional statement Exh. 11 of the accused is voluntary and uninfluenced. Therefore, the same is also not hit by the provisions of Section 24 of the Evidence Act.
12. Now remains the question of violation of the constitutional guarantee under Article 20(3) of the Constitution. The prohibitions imposed by Article 20 are directly relevant and material to the criminal process. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. In light of the facts and circumstances of the present case, whether inhibition incorporated in Article 20(3) is attracted or not is required to be examined. In order to appreciate this contention, it would be necessary to refer to the said provisions. Article 20 reads as under:
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subject to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
In so far as testimonial compulsion for the accused is concerned, there is constitutional guarantee. However, it should be noted that protection against compulsion 'to be a witness' is confined to persons 'accused of an offence'. Thus, there is no constitutional protection for witnesses of those who are not accused at that stage. If the confessional statement Exh. 11 came to be recorded by the Supply Inspector, it cannot be said for a moment that the appellant was accused of an offence at that stage. Therefore, the provisions of Article 20(3) obviously not be attracted. It cannot be said that confessional statement was made by the accused of an offence. Therefore, it is not hit by the provisions of Article 20(3) of the Constitution. Any statement made by a person during the course of inquiry by the specified or prescribed authority under the Special Act cannot be said to be a statement made by the accused. Determination of the issue whether a person is said to be accused of an offence will depend on whether at that stage, when the person made the self-incriminating statement, a formal accusation of the commission of an offence had been made against him. 'Formal accusation' is ordinarily brought into existence by lodging of an FIR or a formal complaint to the appropriate authority or Court against the specific individual, accusing him of the commission of a crime which, in the normal course would result in his prosecution. It is only on the making of such formal accusation that Clause (3) of Article 20 becomes operative covering that individual with its protective umbrella. When during the inquiry under Clause 26 of the 1981 Order, a statement is made by a person which is self incriminatory will not attract the guarantee enshrined in Clause (3) of Article 20. What is required to be considered, therefore, is that at the material time, the maker or author of the self- incriminatory statement was a person accused of an offence within the meaning of Article 20(3). The interpretation which this Court is inclined to make is reinforced by the decision of the Apex Court in Balkishan 's case (supra). In that case, a plea was raised under Article 20(3) that the person who had made a self-incriminatory statement during the course of inquiry under Section 8 of the Railway Property (Unlawful Possession) Act, 1966. Applying the aforesaid test, Apex Court has observed that protection under Article 20(3) is not available to such a person as he cannot be said to be a person accused of an offence. Therefore, the incriminatory statement made by the appellant before the Supply Inspector during the course of his inquiry and in discharge of his duties after making a surprise visit of the shop of the accused, is not violative of the constitutional guarantee of Article 20(3). Therefore, the plea raised in this behalf is also meritless and must be rejected. Accordingly, it is rejected.
13. Obviously, that would take this Court to the consideration of the second contention raised on behalf of the appellant. The contention is that the confessional statement of the accused otherwise cannot form the basis of conviction, being weak piece of evidence, in that, this statement could be used successfully against the accused only as an aid and as corroboration to the other evidence of the prosecution. Raising this plea, it is further submitted that in light of the facts of the case, there is no evidence, other than the confessional statement, supporting the prosecution version. No doubt, prima facie this submission would appear to be subtle but not convincing and acceptable in light of the facts and circumstances of the present case. The prosecution has placed reliance on the evidence of the four prosecution witnesses. P.W. No. 1 complainant-Supply Inspector K.A. Rajguru is examined at Exh. 10. It is clear from his testimony that after making the surprise visit and examining the record including accounts, the accused was found to have violated the mandate of the provisions of Clauses 22 and 23 of the 1981 Order. He is also a witness who has no to grind against the accused. The testimony or the version of the complainant is also reaffirmed by the evidence of P.W. No. 2 Jethabhai Parsottambhai Gohil, and P.W. No. 3 Mithabhai Samantbhai. All are examined at one exhibit. P.W. 2 Jethabhai was serving as an accounts clerk with Mehta Automobiles at Bhavnagar. It is very clear from his evidence that the accused had purchased six barrels of kerosene out of which delivery was effected of four barrels and bills were issued. He is also an independent witness. The six barrels of kerosene were purchased by the accused from Mehta Automobiles on 27-11-1984 for the purpose of distributing as a licensed fair price shop holder to the card-holders at the controlled price of Rs. 372.73 per barrel. Instead, the accused sold off two barrels of kerosene like that, 400 litres directly from the place of purchaser Mehta Automobiles and that too at the rate of Rs. 450/- per barrel and that too not to card-holders. The testimony of the complainant on this score is also fully reinforced by the evidence of P.W. 2 Jethabhai Gohil. The said quantity of kerosene was brought in tempo No. GTS No. 8042 driven by P.W. 3 Mithabhai. Thus, Mithabhai was driver at the relevant time of the tempo in which three barrels of kerosene had been transported from Mehta Automobiles at Bhavnagar to the shop of the accused at Kamlej. Sale in respect of five barrels of kerosene out of six had been effected and three barrels came to be transported upto the shop of the accused while two barrels came to be disposed of at higher rate directly from the petrol pump of Mehta Automobiles at Bhavnagar and that too not to the card-holders. Witness Jethabhai in his evidence has stated that delivery was effected in respect of five barrels on the same day, like that, on 27-11-1984. Three barrels came to be transported in the tempo and two under a hand-lorry. Delivery was effected of five barrels on the same day but two barrels of kerosene were disposed of before the surprise visit made by the Supply Inspector on 28-11-1984. The sale or disposal of the two barrels of kerosene before the surprise visit on 28-11-1984 is not certified by the evidence on record that it was as per the control rate and to the card-holders as required under Clauses 22 and 23 of the 1981 Order. The evidence of Mithabhai Samantbhai also supports the evidence of the complainant. P.W. No. 4 Prithvisinh H. Gohil had investigated into the alleged offences and he had submitted the charge-sheet on finding that there was violation of provisions of Clauses 22 and 23 of the 1981 Order.
14. The testimonial collection of the aforesaid three witnesses is supported by the documentary evidence of bills in respect of purchase of kerosene produced at Exhs. 16 to 22. Each bill issued by the seller Mehta Automobiles is in respect of 200 litres of kerosene. The original bills are produced during the course of evidence of the prosecution witnesses. The note made by the accused in respect of the disposal in the exercise book is produced on record. It is in this context that the evidence of the prosecution witnesses in regard to confessional statement becomes important, material and relevant. The accused in his confessional statement has voluntarily stated that on 27-11-1984, he had sold of 395 litres of kerosene for which bills were obtained. It may be clarified that there was loss of 5 litres out of 400 litres of two barrels. It is clearly admitted by the accused in his confessional statement that he had not brought two barrels of kerosene, viz., 400 litres of kerosene actually from Bhavnagar as the said quantity of kerosene was sold of through the commission agent or broker from the pertol pump of Mehta Automobiles at Bhavnagar. Of course, he stated that he did not know the name of the broker. It is also unequivocally admitted in his confessional statement that he had brought, as such only 3 barrels of kerosene out of five from Mehta Automobiles at Bhavnagar. It is also admitted by him that on inquiry from the card-holders, if was found that kerosene was not sold or distributed to them. He has also clearly admitted in his confessional statement that upon finding that kerosene was not distributed to the card -holders, he admitted the number saying that two barrels of kerosene (400 litres) were sold of directly from the petrol pump of Mehta Automobiles on 27-11-1984 at the rate of Rs. 450/- per barrel. It becomes very clear that bill in respect of 400 litres precisely speaking 395 litres, considering the loss of 5 litres, as found from the record is directly violative of provisions of Clause 22 of the 1981 Order. Clause 22 reads as under:
No person or as the case may be, licence-holder shall sell or deliver or dispose of or offer to sell, deliver or dispose of any essential article at price higher than that fixed by the Government of India, the State Government, the Collector of a district or, as the case may be, the Food and Civil Supply Controller, Ahmedabad City, in pursuance of powers conferred by any law for the time being in force or fixed by the producer and where no price is so fixed the price higher than that displayed by him in accordance with Clause 16.
It is very clear that there is prohibition against selling at higher price than fixed or displayed. The controlled price and fixed price was Rs. 372.73 per barrel (200 litres) which two barrels came to be disposed of at the rate of Rs. 450/- per barrel. Thus, there is clear violation of Clause 22. It is also very clear from the evidence that there is breach of Clause 23 of the 1981 Order. Clause 23 reads as under:
(1) Every dealer or producer shall maintain a register of daily stock of essential article showing correctly the opening stock for the day, stock received during the day, the place from where and source from which received and stock delivered or otherwise removed and the closing stock of such essential articles in which he carries on the business as dealer or producer.
(2) The dealer or, as the case may be, producer, shall complete as far as possible his accounts for the day immediately after closing his business for the day and shall in any case complete the same before opening of the premises the next day.
In course of the inquiry, the complainant found the following discrepancies and shortfalls:
Stock Sale Balance Ready stock Difference
27.11 28.11 Excess/deficit
1. Sugar 429/925 11/900 418/025 420/500 2/425
2. Rice 99/000 5/000 94/000 126/500 32/500
3. Palmolin 300/000 11/500 368/500 326/000 - 41/500
15. There was difference in the stock of sugar, rice and palmolin oil. Instead of selling the aforesaid controlled items, they came to be disposed of and sold without issuing bills. This aspect is also admitted by the accused in his confessional statement. Thus, no bills were issued to the purchasers. There is no proper maintenance of registers of accounts and the daily stock of essential articles by the accused which is required under Clause 23.
15.1 Considering the evidence of prosecution on record, the views and ultimate conclusions recorded by the Special Court could not be shown to be unreasonable, unjust, perverse or erroneous requiring interference of this Court in this appeal. On the contrary, upon true assessment and analysis of the evidence on record, this Court is also satisfied that the impugned order of conviction is justified. It would be interesting to mention at this stage that though the confessional statement ordinarily should not form the basis of conviction, can be accepted without corroboration in a given case if the circumstances so permit. This proposition is very well explained by the Apex Court in Piara Singh v. State of Punjab, . It is clearly held therein that law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. Where the extra-judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellant in that case before the Supreme Court it was held that corroboration should not be insisted. Therefore, it is held that there was hardly any justification for the learned Sessions Judge (Special Court) to disbelieve the evidence of such a witness particularly when the extra-judicial confession was corroborated by the recovery of an empty cartridge from the place of occurrence in that case; whereas, in the present case, the prosecution evidence stands on a higher pedestal. The evidence of the complainant is reliable. It is supported by two witnesses who are independent persons and are materially supported by the documentary evidence of bills Exhs. 16 to 22. It is in this context that corroboration to a retracted confessional statement of the accused is very clear. Having regard to the facts and circumstances, even if the corroboration is insisted even in a case like the one on hand, then also, the prosecution has led clinching and reliable evidence which is supported by the confessional statement of the accused.
16. After having examined closely the evidence of the prosecution on record, the following facts have emerged unquestionably and without any doubt:
1. The accused had purchased six barrels of kerosene which came to be allotted to him being a licensed fair price shop dealer for the purpose of selling the same at controlled price to the card-holders attached to his shop.
2. He had purchased 1,200 litres of kerosene on 27-11-1984 out of which delivery of five barrels was effected and two barrels of kerosene came to be disposed of and sold of at a higher rate than the controlled price. Each barrel is found to have been sold contrary to the conditions of licence and provisions of the 1981 Order in black-market at the rate of Rs. 450/- per barrel instead of Rs. 372.73 per barrel.
3. The retracted confessional statement of the accused produced at Exh. 11 made before the Supply Inspector is found untained, voluntary, truthful and reliable.
4. The evidence of the complainant is also reliable and trustworthy. He was a Supply Inspector at the relevant time. He had made surprise visit of the shop of the accused which was is statutory duty and in the course of his official function, he had detected violation of the provisions of Clauses 22 and 23 of the 1981 Order. This version of the prosecution is very much supported by the witnesses as aforesaid and the documents on record.
5. There was a short-fall of three other essential commodities when compared with the stock register and actual physical stock in respect of sugar, rice and palmolin oil. The difference was of 2 kg. 425 gms. in respect of sugar, 32 kgs. - 500 gms in respect of rice and 41 kgs. - 500 gms. in respect of palmolin oil. Controlled essential commodities meant for card-holders to be sold by a licensed fair price shop dealer, are found to have been sold of in violation of Clauses 22 and 23 of the 1981 Order.
6. Prescribed licence form is in Form B mentioned in Clause 4(2) of the 1981 Order. Unfortunately, the prosecution has not produced the original licence on record. But is found from the record and the provisions of the said 1981 order that the licence under the said 1981 Order is required to be issued in prescribed Form B. Condition No. 4 in the licence form requires the license holder to correctly show the opening stock each day. It is incumbent upon the licensed holder to complete the accounts on each day to which they relate. So is not the factual scenario in the present case. Condition No. 8 of the prescribed form provides that license holder shall not sell or offer to sell essentail articles at a price higher than the price, if any fixed under any law for the time being in force or the price so displayed. There is clear evidence on record to show that the accused is a licensed holder who had violated the said conditions. He had also charged higher rate than the controlled price. He was selling controlled essential articles in black-market.
17. Having regard to the facts and circumstances emerging from the record of the present case, this Court has no hesitation in finding that the impugned order of conviction is not at all vulnerable, but as such it has remained unimpeachable. Therefore, it is required to be confirmed by dismissing this appeal. Insofar as the sentence order is concerned, it may be mentioned that the Special Court has taken a lenient view and has awarded the minimum sentence prescribed under the provisions of Section 3(2)(c) read with Section 7 of the said Act. Since there is no appeal for enhancement and since much time has elapsed after the conviction, this Court is also not inclined to issue for enhancement. In the circumstances, the impugned order of conviction and sentence recorded by the learned Additional Sessions Judge constituting Special Court is quite valid and justified and the present appeal is found without any merit. Therefore, this appeal is required to be dismissed. Accordingly, it is dismissed confirming the impugned order of conviction and sentence. At this stage, learned Advocate for the appellant-accused states that the interim order of bail granted at the stage of admission be continued upto 31st May 1995 as the accused is desirous of pursuing further in the appropriate forum. Considering the facts and circumstances and after hearing the learned A.P.P., the interim order of bail shall remain operative until 30th April 1995.