Gujarat High Court
Mathurbhai vs State on 23 August, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.A/377/1999 2/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 377 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MATHURBHAI
JEKANBHAI BARIA & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
KB ANANDJIWALA for Appellant(s) : 1 - 2.
MR HL JANI APP for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/04/2010
ORAL
JUDGMENT
Present Appeal is directed against the judgment and order dated 01.04.1999 delivered by the Learned Special Judge, Panchmahals, Godhra in Special Summary Case No.6 of 1999 recording the conviction of the accused persons for the offence under Section 420 of the Indian Penal Code and under Section 3 read with Section 12(A)(A) of the Essential Commodities Act and imposing sentence of RI for 18 months and fine of Rs.1,000/-, in default, to undergo RI for 4 months each. The sentences were also ordered to run concurrently.
The facts of the case briefly summarized are as follows:
2.1 It is the case of the prosecution that the appellants-original accused were having fair price shop for the respective areas. They were also to distribute the essential commodities under the Mid-day Meal to the respective centres/schools. Therefore, the original accused no.1, who was to distribute such Mid-day Meal centres for the village Kara, Kanajiya and Fulpari, had supplied Longdal instead of Tuverdal and thereby committed offence under the provisions of Indian Penal Code as well as under the provisions of Essential Commodities Act.
Similarly, the original accused no.2, who was having fair price shop at Jambughoda and was to distribute essential commodities in respect of Mid-day Meal centre at Dhebar Faliya, Duma etc. had supplied Longdal instead of Tuverdal and thereby committed offence as alleged. It is also stated that under Section 44(A) of the Food Adulteration Act, there was prohibition for sale of Longdal. The Deputy Mamlatdar under the Mid-day Meal Scheme visited the centres and found these irregularities, for which, he registered complaint being C.R.No.24/1996 with Jambughoda Police Station for the alleged offences under Section 420 of the Indian Penal Code and under Sections 3 and 7 of the Essential Commodities Act, copy of which is produced at Exh.5.
2.2 On the basis of the aforesaid complaint, case was registered being Special Summary Case No.6 of 1999.
Since it is a summary case, plea of the accused was recorded at Exh.2. The accused denied to have committed any such offence and, therefore, the learned trial Court proceeded with the trial.
2.3 In order to bring home the charges leveled against the accused, the prosecution has examined P.W.No.1, Deputy Mamlatdar at Exh.4, P.W.No.2, Principal at Exh.26, P.W.No.3, Organizer at Exh.27, P.W.No.5, Investigating Officer at Exh.29 and P.W.No.6, Organizer at Exh.31.
2.4 After recording the evidence of the prosecution witnesses was over, the Learned Special Judge, Panchmahals, Godhra recorded the further statements of the accused under Section 313 of the Criminal Procedure Code.
2.6 After hearing the learned APP as well as learned advocate for the accused, the Learned Special Judge, Panchmahals, Godhra convicted the accused for the alleged offence under Section 420 of the Indian Penal Code and under Section 3 read with Section 12(A)(A) of the Essential Commodities Act and sentenced them as stated hereinabove.
It is this judgment and order which has been assailed on the ground inter alia that the conviction of the accused for the alleged offence has been recorded erroneously, bad and illegal. The Learned Special Judge has failed to appreciate the material and evidence on record.
Learned advocate, Mr.Anandjiwala referred to the evidence in detailed and submitted that though the accused persons may have been charged with having supplied Longdal instead of Tuverdal, the material and evidence on a closure scrutiny would make it clear even from the statements, which are in the nature of confessional statements recorded by the Deputy Mamlatdar that they had supplied to the organization and after about 8-10 days, the panchnama has been made during which period, it could have been changed. Learned counsel submitted that if it was supplied as State Government by the accused persons then the quantity would have been consumed and, therefore, at the time when the panchnama is made, no such quantity could be found or recovered. He, therefore, submitted that the reliance cannot be placed on such evidence. Learned counsel also submitted that it was necessary for the I.O. to collect the stock register from the fair price shop of the accused persons, which has admittedly not been recorded. There is no evidence to show with regard to any irregularity. He further submitted that though there is a reference to Rule 44(A) of the Prevention of Food Adulteration Act prohibiting the sale of such Longdal, no notification has been placed on record. He further submitted that even record is required to be maintained on the school or centre under the Mid-day Meal Scheme, however, no such record has been produced or brought on record. He further submitted that the statements of cooks are not recorded. Learned counsel, Mr.Anandjiwala submitted that though it has been admitted by complainant in his testimony at Exh.14, if such items are purchased from the fair price shop by the Mid-day Meal Centre and if it is found to be an inferior quality then the complaint could have also been registered against the fair price shop owner. He further submitted that the Organizer of Mid-day Meal Scheme has not received any such complaint with regard to inferior quality and goods have not been received by any such centres/schools for Mid-day Meal Scheme. Even said Mid-day Meal Centre or the School can refuse to accept such goods supplied by the fair price shop registered for that area when it is delivered. He submitted that therefore even the Principal of the School, who is in-charge of such centre would, have resisted or registered the complaint against the accused persons, who are running fair price shop to any Organization or any authority under the Mid-daly Meal Scheme. He submitted that even they can refuse to take such an inferior quality when it is supplied by the fair price shop owner like accused. Learned counsel, Mr.Anandjiwala also referred to the statements of original accused nos.1 and 2 at Exh.19 and 20 respectively and submitted that even the statements of accused at Exh.19 and 20 cannot be said to be a confessional and he has on the contrary stated about the supply of the same goods (Tuverdal).
He referred to the testimony of P.W.No.2, Principal and submitted that he has admitted that after such goods were received, he did not know till the expiry of 8 days and he had not inspected the same. He also referred to the testimony of P.W.No.3, Exh.27 that when he inquired about the quality to the accused, the accused is said to have stated that whatever is received from the Government is supplied, however, there is no further complaint made by him.
Learned advocate, Mr.Anandjiwala submitted that as an Organizer, he has admitted that he had to maintain register and no such register has been recovered. He further submitted that every day consumption is about 7 Kg. and if after 7 or 8 days, it is noticed, most of the quantity would have been consumed, which raises doubt with regard to the recovery. He has denied suggestion that he has not supplied the register to the Mamlatdar under the Mid-day Meal Scheme. Mr.Anandjiwala, therefore, submitted that the P.W.No.1, complainant, Deputy Mamlatdar has stated that he has not recovered any such register. Therefore, learned advocate, Mr.Anandjiwala referring to this evidence submitted that there are many lapses and the I.O. or even the complainant, Deputy Mamlatdar has not taken proper steps to recover the documentary evidence and, therefore, it cannot be said to have proved beyond reasonable doubt that the accused persons had sold Longdal instead of Tuverdal. He emphasized that after it was purchased or supplied from the fair price shops of the accused, it could have been diverted or got consumed by the Organizer and there was specific suggestion put to the Organizer under the Mid Day Meal Scheme. Therefore, learned counsel, Mr.Anandjiwala submitted that this possibility of Organizer of Mid-day Meal Scheme having manipulated or committed irregularities cannot be ruled out coupled with the fact that no such registers have been examined during the investigation and, therefore, when such possibility was not ruled out, the benefit should go to the accused.
Learned counsel, Mr.Anandjiwala referred to the further statements of the accused recorded under Section 313 of the Criminal Procedure Code and submitted that while recording such statements, specific points or material like statements including the so-called confessional statements of the accused and they have not been asked to explain. Further question based on the panchnama regarding the recovery of the Longdal is not put to them. He, therefore, submitted that it would suggest that they have not been given proper opportunity to explain about any inculpatory material, on the basis of which the conviction is recorded.
Learned A.P.P., Mr.Jani resisted the present appeal. He referred to the confessional statements of the accused persons produced at Exhs.19 and 20 and submitted that even if the statement at Exh.20 is not direct confessional statement, the statement, Exh.19 clearly admits about the fact of having sold Longdal instead of Tuverdal. He further submitted that there may be some flow in the investigation but the benefit may not be given to the accused in light of the evidence on record. He submitted that the scheme under the Mid-day Meal is implemented by the Government for the benefit of children and, therefore, it requires serious consideration. He submitted that the suggestion that the Organizer under the Mid Day Meal Scheme may have manipulated or committed irregularities by itself would not be sufficient though he admitted that sufficient material has not been collected like registered, which would have thrown some light to fasten the liability with regard to such offence or the irregularities.
In light of this rival submission, it is required to be considered whether the impugned judgment and order passed by the trial court calls for any interference by this Court or not.
As recorded hereinabove, referring to the testimony of the witnesses, learned counsel, Mr.Anandjiwala has pointedly referred to the aspect that the I.O. and the complainant, Deputy Mamlatdar both have not seized and recovered the necessary registers of the accused, who are running fair price shop. Similarly, registers are required to be maintained by the Mid-day Meal Centre, which has also not been recovered as he pointedly referred to this aspects. It is not repeated, however, as can be seen from the testimony of P.W.No.1, Exh.4. He has also admitted that if the quality is not good, which is to be supplied by the fair price shop, the centres/schools under the Mid-day Meal can refuse to accept, however, there is no such refusal and there is no complaint. It is also admitted that the Organizer of such centre or the Principal of the school can lodge the complaint to the Organizer under the Mid-day Meal Scheme. It is also admitted that he has not collected and seized the stock registers of both accused nor the stock register or the record of the school/centre under the Mid-day Meal Scheme have been recovered. The I.O., P.W.No.1 in his testimony at Exh.29 has submitted that even he has not recorded the statement of the godown keeper or cook, who were preparing the food at the school. The Organizer, P.W.No.6 at Exh.31 has stated that the Principal of the School had not verified about the quality. He admitted that he has direct contact with the Mamlatdar under the scheme but he has not lodged any complaint. Therefore, the moot question which is required to be considered is whether there is any cogent material and evidence with regard to supply of Longdal instead of Tuverdal by the accused while running their fair price shops registered for the supply under the Mid-day Meal Scheme. There is no evidence on this aspect to establish that they had supplied Longdal instead of Tuverdal, therefore, as rightly emphasized, possibility of the irregularities having been committed by the Organizer under the Mid-day Meal Scheme or the school cannot be ruled out. Further as rightly emphasized while recording statements under Section 313 of the Criminal Procedure Code, all incriminating or inculpatory material is required to be brought to the notice of the accused in order to provide him opportunity or to explain, but no such panchnama of recovery of such muddamal nor so-called confessional statement of the accused persons have been referred to in their further statements. Therefore, this would also affect the case of the prosecution. A useful reference can be made to the decision of the Hon'ble Apex Court reported in (2009)6 SCC 583, wherein the Hon'ble Apex Court has clearly observed as under :-
the whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
Further quoting from the earlier judgment reported in 2007(12) SCC 341, it has been observed in Para No.15 as under :-
13. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed.
It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.
Therefore, in light of the aforesaid discussion and on scrutiny of the evidence, the impugned judgment and order recording the conviction of the accused persons deserves to be quashed and set aside.
In the result, Criminal Appeal accordingly stands allowed. Judgment and Order dated 01.04.1999 delivered by the Learned Special Judge, Panchmahals, Godhra in Special Summary Case No.6 of 1999 recording the conviction of the accused persons for the offence under Section 420 of the Indian Penal Code and under Section 3 read with Section 12(A)(A) of the Essential Commodities Act are quashed and set aside and the appellants-accused are ordered to be set at liberty forthwith, if not required in any other offence. They are on bail and, hence, their bail bonds stand cancelled. The fine paid by the appellants-accused, if any, is ordered to be refunded.
Sd/-
(RAJESH H.SHUKLA, J.) /patil Top