Uttarakhand High Court
Manish Panwar vs State Of Uttarakhand And Others on 17 October, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 548 of 2022
Manish Panwar ....Revisionist
Vs.
State of Uttarakhand and others ....Respondents
Present:
Mr. Tapan Singh, Advocate for the revisionist.
Mr. Pankaj Kumar Joshi, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Instant revision is preferred against the following:-
(i) Judgment and order dated 26.04.2022, passed in Criminal Case No. 196 of 2015, State Vs. Manish Panwar, by the court of Chief Judicial Magistrate, Tehri Garhwal ("the case"). By it, the revisionist has been convicted under Section 3 read with 7 of the Essential Commodities Act, 1955 ("the Act") and sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs.20,000/- with further stipulation that in default of payment of fine the revisionist shall undergo simple 2 imprisonment for a further period of one month and;
(ii) Judgment and order dated 06.09.2022, passed in Criminal Appeal No. 13 of 2022, Manish Panwar Vs. State of Uttarakhand. By it, the judgment and order dated 26.04.2022 passed in the case has been upheld.
2. Facts necessary to appreciate the controversy, briefly stated, are as follows.
PW1 Kishan Singh Bhandari, the Regional Food Officer was told that somebody is unauthorizedly selling diesel at Chamiyala. He was directed by the District Magistrate to look into the matter. On 23.03.2015, PW1 Kishan Singh Bhandari visited the place alongwith PW3 Het Ram Mamgain, The Revenue Sub-Inspector, PW4 Gambhir Singh Bisht, Watchman in a food Godown and PW5 Manoj Barthwal, the Supply Inspector. Two persons, namely, PW6 Soban Singh and a Satey Singh also joined the team at the time of inspection. The keys of the petrol pump were handed over by Satey Singh, the PW2. He was asked to produce the license, which he could not. PW1 Kishan Singh Bhandari in the presence of other witnesses took three 3 samples from the pump and seized it. A seizure memo Ex. A1 was prepared, which was signed by PW1 Kishan Singh Bhandari, PW3 Het Ram Mumgain, PW4 Gambhir Singh Bisht and PW5 Manoj Barthwal. It is the prosecution case that PW6 Soban Singh, who was salesman at the petrol pump and Satey Singh Panwar declined to sign the seizure memo.
3. Thereafter, PW1 Kishan Singh Bhandari informed the District Magistrate and lodged a report Ex. A3. Based on which, an FIR was lodged on 27.03.2015. The investigation was carried out. The samples of the diesel taken from the pump were forwarded by PW1 Kishan Singh Bhandari to the District Magistrate on 24.03.2015. They were examined at the Laboratory of the Indian Oil Corporation. PW9 Anup Singh Rawat proved the report Ex.A7, according to which submits that the samples are in conformity with the high speed diesel. After investigation, charge sheet was submitted. On 09.02.2021, the revisionist was charged under Section 3/7 of the Act for storing and selling biodiesel and high speed diesel. The revisionist did not plead guilty and claimed trial.
4
4. In order to prove its case, prosecution examined eleven witnesses, namely, PW1 Kishan Singh Bhandari, PW2 Sunder Singh Rawat, PW3 Hetram Mamgain, PW4Gambhir Singh Bisht, PW5 Manoj Barthwal, PW6 Soban Singh Rawat, PW7 Smt. Anju Devi, PW8 Mohd. Akram, PW9 Anup Singh Rawat, PW10 Pradeep Kumar and PW11 Sandeep Bansal.
5. After prosecution evidence, the revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to him, the witnesses have given false and wrong statement. He did not commit any offence.
6. By the impugned judgment and orders, passed in the case, the revisionist has been convicted and sentenced, as stated hereinbefore. The judgment and order dated 26.04.2022 has been unsuccessfully challenged in appeal. Hence, the revision.
7. Heard learned counsel for the parties and perused the record.
8. Learned counsel for the revisionist would make a number of submissions. According to him, the 5 prosecution has utterly failed to prove that whatever samples were taken on 23.03.2015, was high speed diesel. It is argued that PW9 Anup Singh Rawat, based his report Ex. A7 on one document i.e. 5A/56, which has not been proved, which does not bear any signature and which does not record that the sample was that of high speed diesel. Learned counsel raised the following points also in his submissions:-
(i) The samples were to be sent within 10 days. References has been made to the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998.
(ii) There is no record as to when the
samples were sent.
(iii) There has been no compliance of Section 100 (4) of the Code.
(iv) At the time of seizure of the petrol pump, the presence of independent witness has not been procured.
(v) The statement of PW1 Kishan Singh Bhandari is in contradiction in material particulars with the statements of the other witnesses.
6
(vi) PW10 Pradeep Kumar, who is the Investigation Officer, has confirmed that he never saw the samples. The samples were never produced in the court. Even the seal was never produced before the court. It doubts the prosecution case.
9. Learned counsel for the revisionist would submit that, in fact, there are grave errors and illegality in the impugned judgment and orders, which vitiates the conviction. Therefore, the revision deserves to be admitted and heard. Learned counsel also argued that since it is an admission stage, the revisionist has no paper book of the case, therefore, the matter may be admitted, thereafter, it may be finally heard in details.
10. Learned State counsel would submit that there is no illegality in the impugned judgments and orders.
11. This is a revision under Section 397 of the Code. It reads as hereunder:-
"397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to 7 the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
12. A bare perusal of the above, makes it abundantly clear that the scope of revision is limited to the extent of examining correctness, legality and propriety of any finding. It is not a statutory right of a person to file a revision. It is basically a kind of entitlement available. The scope of revision has widely been discussed in a catena of decisions by the Hon'ble Supreme Court. In the case of Akalu Ahir and Others Vs. Ramdev Ram (1973) 2 SCC 583, the Hon'ble Supreme Court observed "the High Court has been invested to with this power to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that the subordinate courts do not 8 exceed their jurisdiction or abuse the power conferred on them by law. As a general rule, this power in spite of the wide language of Sections 435 and 439 CrPC does not contemplate interference with the conclusions of fact in the absence of serious legal infirmity and failure of justice. This power is certainly not intended to be so exercised as to make one portion of the Code of Criminal Procedure conflict with another; as would seem to be the case when in the garb of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory prohibition."
13. In the case of Duli Chand Vs. Delhi Administration, (1975) 4 SCC 649, the Hon'ble Supreme Court observed "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct"
14. In the case of State of Maharashtra Vs. Jagmohan Singh Kuldeep Singh Anand and others, 9 (2004) 7 SCC 659, the Hon'ble Supreme Court observed that "in embarking upon the minutest re- examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav, (2004) 7 SCC 665. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below."
15. In the case of State of Maharashtra Vs. Sujay Mangesh Poyarekar, (2008) 9SCC 475, the Hon'ble Supreme Court observed that "now it is well settled that revisional jurisdiction can be exercised sparingly and only in exceptional cases, a revisional court cannot convert itself into a regular court of appeal."
16. In the case of Girish Kumar Suneja vs. Central Bureau of Investigation, (2017) 14 SCC 809, Hon'ble Supreme Court observed that "our conclusion 10 on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court, but that entitlement can be taken away and in any event, the High Court is on the no obligation to entertain a revision petition- such petition can be rejected at the threshold."
17. In fact, in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, the Hon'ble Supreme Court discussed the scope of revision and in para 12 and 13 observed as hereunder:-
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very 11 limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
18. With the defined contours of jurisdiction of revision, the matter needs examination. Mostly, learned counsel for the revisionist has taken arguments with regard to the factual aspects of the cases. As stated, this Court cannot act as a regular court of appeal. This revision cannot be considered as second appeal. Appreciation of evidence is not permissible in revision, unless the finding is perverse i.e. against the weight of evidence or admissible evidence is ignored or inadmissible evidence is taken into consideration. It is being argued that case has not been proved because of want of evidence. What is "proved", what is "not proved"
and what is "disproved", it has been defined under Section 3 of the Indian Evidence Act, 1972 ("the Evidence Act"), which reads as hereunder:-
"Proved". -- A fact is said to be proved when, after considering the matters before it, the Court;12
either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved". -- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved". -- A fact is said not to be proved when it is neither proved nor disproved."
19. This aspect of "proved" and "disproved" has relation with Section 114 of the Evidence Act, which provides as to how the court may presume existence of certain facts. According to this section, "the Court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
20. In the case of K Ponnuswamy Vs. State of Tamil Naidu, (2001) (6) SCC 674, Hon'ble Supreme Court discussed the concept of "proved" and in para 27 observed as hereunder:-
"27. In support of his submission Mr Rao relied upon the authority of this Court in the case of Krishnanand v. State of M.P. [(1977) 1 SCC 816 :13
1977 SCC (Cri) 190] In this case this Court has held as follows: (SCC pp. 830-31, para 26) "It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence."
There can be no dispute with the legal proposition. However, let us see what is meant by "proved". Section 3 of the Evidence Act defines "proved" as follows:
"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, Section 114 of the Evidence Act reads as follows:
"114. Court may presume existence of certain facts.-- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."
21. Since, arguments have been advanced with the submission that there is gross illegality touching 14 upon the factual aspects, it would be apt to briefly examine as to what the witnesses have said.
22. PW1 Kishan Singh Bhandari at the relevant time was the Regional Supply Officer. According to him, on 23.03.2015, at 5:00 in the evening he was told by the District Magistrate that the revisionist is running a bio- diesel pump unauthorizedly. He was directed to inspect. At 8:00, on the same date, he alongwith PW3 Het Ram Mumgain, the Revenue Sub-Inspector, PW4 Gambhir Singh Bisht and PW5 Manoj Barthwal visited the site. The keys of the petrol pump was with Satey Singh Panwar. He was asked to produce documents, which he could not. The pump was opened. There were two machines. In one machine the reading was showing at 000 and in the other machine the indication was 27.36 liter petrol and 55.43 liter diesel has been shown. The underground diesel tank was also checked deeply by a scale. It read 44 marks. The deep check chart was demanded from Satey Singh and Soban Singh. Soban Singh is, in fact, PW6 in this case. He did not produce the chart. The samples were taken in three aluminum boxes, which were forwarded to the District Supply Officer. This witness proved the seizure memo Ex. A1. His report, Ex. A2 and FIR Ex. A3. PW3 Het Ram, PW4 15 Gambhir Singh Bisht and PW5 Manoj Barthwal, all have corroborated the statement of PW1 Kishan Singh Bhandari with regard to the act that was done by him on 23.03.2015. They have proved their signatures on Ex. A1, the seizure memo.
23. There is another witness PW6 Soban Singh Rawat, he admits that he was working at the Manish Bio-Diesel Pump and he was appointed on 21.03.2022. He, in his evidence before the court has also supported the versions of PW1 Kishan Singh Bhandari, PW3 Het Ram Mumgain, PW4 Gambhir Singh Bisht and PW5 Manoj Barthwal. He admits that samples were taken. It supports the statement of witness of seizure i.e. PW1 Kishan Singh Bhandari that in the presence of PW6 Soban Singh Rawat, samples were taken, but he declined to sign the seizure memo. A bare perusal of the Ex. A1, seizure memo proves it.
24. PW2 Sunder Singh is a person on whose land this pump was installed. According to him, he has some land at Srikot Chamiyala. The revisionist took land on lease from him on 19.08.2014. A lease deed was also executed on a stamp paper. He has stated about the lease deed Ex. 8A/2, on which he has proved his 16 signatures. Though, not exhibited, but it can definitely be read into evidence because this witness has proved his signatures on it and has stated that this lease deed was executed with regard to this land for installing a biodiesel pump. It records that the land belongs to Khata Khatauni No.183. It is connected with another document Ex. A4, which has been proved by PW3 Het Ram. According to PW3, Het Ram the revisionist had applied for installing Manoj Biodiesel Pump. PW3 Het Ram had conducted an inquiry and submitted a report on 13.03.2013. According to him, the land was in the name of Sunder Singh i.e. PW2. This witness proved his inquiry report, Ex. A4. In fact, it supports the statement of PW2 Sunder Singh. In this report Ex. A4, PW3 Het Ram writes that the land belongs to Khata Khatauni No.183.
25. PW7 Smt. Anju Devi is wife of Satey Singh, who had keys of the petrol pump at the relevant time, when it was searched and when seizure was made. According to her, the revisionist had told it to her and her husband that he wanted to open a biodiesel pump. He had license. He wanted help of this witness so that they may identify some land for the purpose. 17
26. PW8 Mohd. Akram is the Investigating Officer, who has conducted a part of investigation. He proved the chik FIR and General Diary entries.
27. PW9 Anup Singh Rawat is an important witness. According to him, he gave the report on the samples. This witness states that, in fact, during his leave, Dr. K.S. Reddy, the Lab Officer had prepared a test report, which is paper no. 5A/56 on record, based on it, he has submitted a report Ex. A7. According to him, the sample was HSD BS-III, which is High Speed Diesel (HSD BS-III).
28. PW10 Pradeep Kumar is the Investigating Officer. He has stated about investigation and proved certain documents.
29. PW11 Sandeep Bansal is a person, who stated in the court that the revisionist had purchased two oil machines and one oil storing tank from him. He has also hired a tanker UK07CA0830 for taking oil from Lal Tappar to Chamiyala.
30. In his examination under Section 313 of the Code, the revisionist denied every piece of evidence, 18 every circumstance that appeared in evidence against him. According to him, he has been falsely implicated. He did not lead any evidence in his defence.
31. Learned counsel for the revisionist argued that once the revision is admitted, it may be argued at length. But this Court makes it clear that learned counsel for the revisionist has argued the case in much detail, made references to the documents and statements of the witnesses.
32. Non compliance of Section 100 (4) per-se does not vitiate a trial. PW1 Kishan Singh Bhandari, is a public servant. He did not all alone conducted the search. He was accompanied by PW3 Het Ram Mumgain. PW4 Gambhir Singh Bisht and PW5 Manoj Barthwal. They may be termed as independent witnesses. Not only this, according to PW1 Kishan Singh Bhandari, PW6 Soban Singh was a Salesman at the pump and the keys were given by Satey Singh. They may also be termed as independent witnesses. Therefore, this argument does not in any manner vitiate the impugned judgments and orders.
19
33. It is argued that the samples were to be sent within 10 days, but it is not proved as to when it was sent for examination. Report Ex. A7 with regard to the test has been proved by PW9 Anup Singh Rawat. This report reveals that it was given on 15.04.2015. According PW9 Anup Singh Rawat, in fact, one of his collogues had done the examination. The document is before the Court, which is 5A/56, which is in fact not exhibited. But, based on it, which is an official record, as per PW9 Anup Singh Rawat, he has given the report. It is argued that paper No. 5A/56 is not proved; it does not record that the allegedly sent sample was high speed diesel. Therefore, it is argued that the prosecution has been failed to prove that the samples were, in fact, of the high speed diesel. This argument is definitely on factual aspects. Although, attempt has been made to give some kind of legal blend to it to the effect that a kind of inadmissible or irrelevant evidence has been taken into consideration. But, it is not. PW 9 Anup Singh Rawat has categorically stated that he submitted the report. He confirms that the sample was HSD BS-III specification. He has been fair in telling it in the court that, in fact, the analysis was done by his colleague. The analysis report 5A/56 though not proved was before the Court. It records the operations which were done in terms of 20 appearance, Citane Index (CI), Pour Point (Summer) and Cooper Strip Corrosion-3Hr 1000C work points. This witness has not been cross examined on these aspects. Merely because paper no. 5A/56, which has been referred to by PW9 Anup Singh Rawat has not been exhibited, it does not make the deposition of PW9 Anup Singh Rawat unreliable. Therefore, this Court is of the view that, in fact, while concluding that the sample was High Speed Diesel- HSD BS-III, the court below did not commit any error.
34. It is argued that there have been some contradictions with regard to the presence of witnesses etc. Reference has been made to the statement of PW1 Kishan Singh Bhandari. All these are factual aspects. There is concurrent finding of fact. In the revision, it cannot be and even it should not been done. Even the Court has perused he statements of the witnesses. There is no such material contradiction, which may in any manner, make the impugned judgments and orders, wrong, illegal or improper.
35. Reference has been to the statement of PW10, Pradeep Kumar to argue that, in fact, the sample was never produced before the court. The seal was not before 21 the court. Some of the parts of the statement of PW10 Pradeep Kumar, has been read over to the Court. It is true that the samples were not produced before the court. But, then how it would affect the impugned judgments and orders?
36. It is categorical case of PW1 Kishan Singh Bhandari that after seizure on 23.03.2015, he submitted a report to the District Magistrate and to the Supply Officer. He forwarded the samples to the District Supply Officer on 24.03.2015 (Ex.A2 mention of it) and thereafter, lodged FIR. Paper No. 5A/56, based on which, Ex. A7 was written by PW9 Anup Singh Rawat, records that the samples were received on 03.04.2015. It also records that the samples were drawn on 01.04.2015. Does it mean that he samples were sent on 01.04.2015? If it is so, it is within 10 days from the date of taking of samples (Paper No. 5A/66 is on record. It is not proved. It reads that the samples were sent for examination on 01.04.2015). Even otherwise mere not forwarding of the samples within 10 days does not per-se vitiate the trial.
37. The Court wanted to know from the learned counsel for the revisionist as to whether the revisionist 22 ever applied that any other sample may be sent for examination? Did he move any application? The answer is in negative.
38. Learned counsel for the revisionist would submit that it is not the revisionist to fill in any lacuna of the prosecution. In fact, there is no lacuna in the prosecution. According to the laboratory report on 03.04.2015 samples were received. PW9 Anup Singh Rawat gave a report based on the examination done in the laboratory. Nothing has been elicited from him in any manner, as stated, which may discredit his evidence.
39. Having considered the entirety of fact and submissions, this Court is of the view that there is no merit in this revision. Accordingly, the revision deserves to be dismissed at the stage of admission itself.
40. The revision is dismissed in limine.
(Ravindra Maithani, J.) 17.10.2022 Jitendra