Punjab-Haryana High Court
State Of Haryana vs Ram Kishan & Others on 13 October, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
Criminal Appeal No.891-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.891-SB of 2000
Date of Decision : 13th October, 2011
State of Haryana
.... Appellant
Versus
Ram Kishan & others
.... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL.
Present: Mr. Anil Kumar, Deputy Advocate General, Haryana.
Mr. A. S. Virk, Advocate for respondent No.2.
None for remaining respondents.
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L. N. MITTAL, J. (Oral)
This is appeal by State of Haryana assailing judgment dated 22.01.2000 passed by learned Special Judge, Narnaul thereby acquitting respondents Ram Kishan, Gur Dayal, Kailash and Daya Nand.
Prosecution case is that on night between 28/29.09.1995, Daya Nand, SI/SHO of Police Station, Narnaul received secret information on telephone that a tractor owned by a resident of village Maroli stood parked in frond of shop of Daya Nand accused resident of village Dohar Kalan- commission agent in Grain Market, Narnaul and spurious bags of DAP fertilizer were being loaded in the trolly for sale to farmers. Ram Kishan accused who was salesman of Marketing Society, Narnaul was also present there and was getting spurious fertilizer filled in the bags and after stitching the same with machine, was getting the bags loaded in trolly. On the basis Criminal Appeal No.891-SB of 2000 -2- of secret information, FIR was registered. Police party headed by SI Daya Nand raided the shop of accused Daya Nand in front of which a tractor trolly was found parked. It did not bear any registration number. There were two bags of fertilizer in the trolly. Some chappals and loose fertilizer lying scattered was also there. The shop was found open. From the shop, a stitching machine was seized. There were also 45 bags of DAP fertilizer and 62 empty bags of fertilizer of different companies in the shop. Out of the total 47 bags of fertilizer, two samples were drawn from each bag. The samples were sealed with seal bearing impression 'DN'. All the articles were seized by the Police.
On 05.10.1995, Megh Raj Singh, Deputy Director, Agriculture Narnaul accompanied by Ram Kishan Rana, Quality Control Inspector and Partap Singh, Peon went to Police Station. They took three samples of 400 grams each from 3 bags out of 47 bags of fertilizer. The three samples were mixed and then 3 parcels of the samples were prepared. One sample parcel was sent to Central Fertilizer Quality Control & Training Institute, Faridabad. According to report received from the said Institute, the sample was of non-standard fertilizer.
On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short, 'Cr.P.C.') was presented for prosecution of Ram Kishan, Gur Dayal and Ramesh @ Pappu under Section 7 of the Essential Commodities Act, 1955 (in short, the 'Act') and Sections 420, 120B, 467, 468 and 471 of the Indian Penal Code (in short, 'IPC') whereas Kailash accused was shown as innocent in column No.2. However, Criminal Appeal No.891-SB of 2000 -3- subsequently another supplementary report under Section 173 Cr.P.C. was also presented for prosecution of accused Kailash. From the file of the trial court, it is not clear as to how Daya Nand accused faced trial because his name does not appear in any of the two reports under Section 173 Cr.P.C.
In all, 5 accused i.e. Ram Kishan, Gur Dayal, Kailash and Daya Nand (respondents herein) and Ramesh @ Pappu were put up for trial. However, Ramesh @ Pappu was discharged by the trial Judge, whereas charge under Section 420 read with Section Section 120B IPC and Section 7 of the Act was framed against the remaining four accused i.e. respondents herein. They pleaded not guilty and claimed trial.
To prove the guilt of the accused, the prosecution examined 16 witnesses.
Inspector Bhoja Ram PW-1 and Inspector Niyadar Singh PW- 13 stated that they prepared reports under Section 173 Cr.P.C.
Megh Raj Singh, PW-2 who was Deputy Director at the relevant time stated that he along with Ram Kishan Rana, Quality Control Inspector and Partap Singh, Peon had taken 3 samples of fertilizer from 2 bags in Police Station, Narnaul and after mixing the same, 3 packets were prepared out of which 2 packets were taken by them and 1 packet remained with the police. One packet was sent by them to Laboratory either at Hisar or Karnal. However, further examination of this witness was deferred on the request of Assistant Public Prosecutor, but the witness was not produced thereafter for further examination or cross-examination.
Ram Kishan Rana, Quality Control Inspector PW-3 stated that Criminal Appeal No.891-SB of 2000 -4- on 05.10.1995, he accompanied Megh Raj Singh, Deputy Director and Peon Ram Partap had gone to Police Station Narnaul where 47 bags of fertilizer were lying along with other articles. They had drawn samples from 3 bags selected randomly. The samples were mixed and 3 packets of 400 grams each were prepared. One sealed packet was sent to Quality Control Laboratory at Faridabad.
Ram Partap Pean PW-4 stated that he had taken one sample parcel to the Laboratory at Faridabad and delivered the same without any tampering.
ASI Dhani Ram PW-5, Head Constable Krishan Kumar PW-11 and Sub-Inspector Daya Nand PW-16 broadly stated according to prosecution version. Sub-Inspector Daya Nand also stated about investigation of the case conducted by him.
Sub-Inspector Jarnail Singh PW-6 stated that he arrested accused Ram Kishan and Ramesh @ Pappu in this case.
Subhas Yadav PW-7 stated that accused Ram Kishan was Salesman in Marketing Society, Narnaul to which DAP fertilizer was supplied by Hafed.
Babu Lal, Palledar (Labourer) PW-8, Fakir Chand PW-9 and Rati Ram PW-10 stated that they did not know anything about this case. They were declared hostile. They were cross-examined by the Public Prosecutor but they denied the prosecution version.
Sub-Inspector Bharat Singh PW-12 stated that he had recorded the statement of Ram Partap Peon (a formal witness) during investigation. Criminal Appeal No.891-SB of 2000 -5-
Parkash Chand PW-14 stated that he is registered owner of tractor bearing No.HYJ - 7563. He sold it along with trolly to Faqir Chand, but no document was executed in this regard. This witness got the tractor released on superdari.
Jagmal Singh PW-15 stated that on 28/29.09.1995 at 10.00pm, he received telephonic message from his son Jai Singh that some persons were loading bags of fertilizer in trolly in front of godown of Marketing Society. Filling and stitching of bags was being done. This witness went to the spot and saw tractor trolly parked there. Three bags were lying in the trolly. Two labourers were loading bags in trolly. One unknown person was also there. Several bags were lying in front of the godown. This witness telephonically informed the police. The labourers and the unknown person fled away. This witness denied that the accused persons were present there. He was declared hostile and was cross-examined by the Public Prosecutor. However, he denied the prosecution version about presence of accused persons.
The accused in their examination under Section 313 Cr.P.C. denied all the other incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent.
They did not lead any evidence in their defence.
Learned Special Judge, Narnaul vide impugned judgment dated 22.01.2000 acquitted all the four respondents-accused. Feeling aggrieved, State of Haryana have preferred the instant criminal appeal for which leave was granted.
Criminal Appeal No.891-SB of 2000 -6-
I have heard learned State counsel and counsel for respondent No.2 and perused the case file with their assistance, whereas none has appeared for the remaining respondents.
Learned State counsel contended that from the prosecution evidence, it is proved that the accused were filling sub-standard fertilizer in bags and were loading the same in tractor trolly and, therefore, their guilt is proved.
On the other hand, learned counsel for respondent No.2 contended that there is not even an iota of evidence on record to link respondent No.2 with the alleged offence.
I have carefully considered rival contentions.
In the first instance, it has to be noticed that the 47 bags of fertilizer allegedly seized by the police are not proved to be of sub-standard fertilizer. According to recovery memo Exhibit P-C, two samples were drawn from each of the 47 bags. However, SI Daya Nand PW-16, star witness of the prosecution being Investigating Officer, simply stated that he took samples from the bags of spurious fertilizer, but did not state that he had taken samples from each bag or from how many bags. ASI Dhani Ram PW-5, however, stated that they had taken 2 samples from each of the 47 bags and each sample was of about half kilogram. Head Constable Krishan Kumar PW-11 simply stated that 2 samples had been taken out of 45 bags of fertilizer lying in the shop. He did not state that 2 samples were taken from each bag. Thus the prosecution evidence regarding taking of samples from the bags of fertilizer at the spot is completely discrepant and Criminal Appeal No.891-SB of 2000 -7- contradictory. At the top of it, none of the samples taken at the spot was sent to laboratory for analysis. There is no explanation why none of the samples taken at the spot from the bags of fertilizer was sent to laboratory to prove that the fertilizer was sub-standard or spurious.
Prosecution version is that on 05.10.1995 i.e. after 6 days of the occurrence, Megh Raj Singh, Deputy Director PW-2, Ram Kishan Rana, Quality Control Inspector PW-3 and Ram Partap, Peon PW-4 had taken samples from the bags of fertilizer in question. However, their evidence is also discrepant and insufficient. Megh Raj Singh PW-2 stated that they have taken 3 samples from 2 bags only and the samples were of 500 grams each. Ram Kishan Rana stated that they had taken 1200 grams fertilizer in all as sample from 3 bags selected randomly and after mixing the same, it was put in 3 packets weighing 400 grams each. Ram Partap PW-4 has not stated even a word about taking of samples from the bags of fertilizer in the police station. He simply stated that he had taken one sample parcel and delivered it in the laboratory at Faridabad without any tampering. Thus there is no reliable evidence regarding taking of samples from the bags of fertilizer in police station. Megh Raj Singh stated that 3 samples were drawn from only 2 bags and the samples were of 500 grams each i.e. 1500 grams in all. However, Ram Kishan Rana stated that samples were taken from 3 bags and total weight was 1200 grams. Moreover, part examination of Megh Raj Singh was deferred and thereafter, he was not produced for further examination and cross-examination. Consequently his statement cannot be read in evidence against the accused. Thus we are left with Criminal Appeal No.891-SB of 2000 -8- solitary statement of Ram Kishan Rana regarding drawing of samples from the bags of fertilizer in the police station.
In addition to the aforesaid, samples were not drawn from all the 47 bags. Samples were allegedly drawn from 2 or 3 bags only. Consequently it cannot be said that fertilizer in the remaining 44 or 45 bags was also sub-standard or spurious. There is not even a shred of evidence to depict that fertilizer in the said remaining 44 or 45 bags was non-standard. Even regarding the 2 or 3 bags from which the samples were allegedly drawn, it cannot be said that fertilizer in all the said 2 or 3 bags was sub- standard because the samples taken out from the said 2 or 3 bags were mixed and then one representative sample was sent for analysis. It thus emerges that practically there is no evidence to show that the fertilizer in question was non-standard or spurious. The entire evidence of the prosecution regarding taking out samples at the spot as well as taking out samples at the Police Station, is contradictory and discrepant and the analysis report is regarding sample allegedly taken out from 2 or 3 bags only and not regarding fertilizer in the remaining 44 or 45 bags. Consequently, entire case of the prosecution falls to the ground.
The matter does not rest here. The prosecution has not led any evidence to link the respondents with the alleged sub-standard fertilizer. There is not even an iota of evidence in this regard against respondents No.1 to 3 i.e. Ram Kishan, Gur Dayal and Kailash. No witness of the prosecution has stated anything incriminating against them. It has, of course, come in evidence that Ram Kishan was salesman of Marketing Criminal Appeal No.891-SB of 2000 -9- Society, Narnaul, but there is no evidence on record to link either Ram Kishan or Gur Dyal and Kailash with the alleged sub-standard fertilizer. As regards respondent No.4 Daya Nand also, there is no cogent evidence to depict that the shop from which 45 bags of fertilizer were allegedly seized belongs to Daya Nand accused. ASI Dhani Ram PW-5 has not stated even a word in this regard. He stated that SI Daya Nand had told that spurious fertilizer was being filled in bags in a shop and that shop was raided. He did not state that the said shop belonged to Daya Nand accused. However, Head Constable Krishan Kumar PW-11 and Sub-Inspector Daya Nand PW- 16 have, of course, stated that they had raided the shop of accused Daya Nand. However, their oral statements in this regard are not sufficient to prove that the shop from which the bags of fertilizer were allegedly seized, belonged to accused Daya Nand. These two witnesses being police officials could possibly have no personal knowledge of this fact. No other witness either from the Grain Market or from Market Committee or Sales Tax Department has been examined to depict that the said shop was of Daya Nand accused. It is thus manifest that the prosecution has miserably failed to link the respondents with the alleged spurious fertilizer.
Material witnesses of the prosecution i.e. Babu Lal, Palledar (Labourer) PW-8, Fakir Chand, PW-9, Rati ram PW-10 and Jagmal Singh PW-15 have turned hostile. They were the witnesses who were to prove the link of respondents-accused with the alleged spurious fertilizer, but they have not stated even a word in this regard. Jagmal Singh PW-15 was said to be the person, who had telephonically informed the Police and thereby Criminal Appeal No.891-SB of 2000 -10- activated the Police. Jagmal Singh, of course, stated having telephonically informed the Police, but he stated that accused persons were not present at the spot. He was the star witness of the prosecution to prove that when he went to the spot, he had seen all the accused at the spot. However, in cross- examination by Public Prosecutor, he denied this fact. Other witnesses of the prosecution mentioned hereinbefore have also not stated anything incriminating against the accused. Thus prosecution evidence is lacking to link the respondents with the fertilizer in question.
It is also significant to notice that according to prosecution version as stated by ASI Dhani Ram PW-5, Head Constable Krishan Kumar PW-11 and Sub-Inspector Daya Nand PW-16, the occurrence took place at the shop of accused Daya Nand and the tractor trolly was found parked in front of the said shop, but according to Jagmal Singh PW-15, the tractor trolly was parked in front of godown of Marketing Society and filling and stitching of bags was being done there and several bags were lying in front of the said godown. Thus prosecution evidence is discrepant on this material point and is, therefore, unworthy of credence.
From the aforesaid discussion of prosecution evidence, it clearly emerges that prosecution has miserably failed to prove the guilt of the accused. Learned trial Judge has recorded sufficient reasons to acquit the accused. There is presumption of innocence in favour of the accused. The said presumption gets doubly strengthened and re-inforced by judgment of acquittal. In the instant case, there is no infirmity, much less illegality or perversity, in the impugned judgment of acquittal so as to warrant Criminal Appeal No.891-SB of 2000 -11- interference by this Court in exercise of appellate jurisdiction. On the contrary, even if two views are possible, view favourable to the accused has to be accepted. In the instant case, the only reasonable view that is possible on analyzing the prosecution evidence is that the prosecution has miserably failed to prove the guilt of the accused.
As a necessary result of the discussion aforesaid, I find that the respondents have been rightly acquitted by the trial Judge. There is no merit in the instant criminal appeal, which is accordingly dismissed.
( L. N. MITTAL ) JUDGE 13th October, 2011 'raj'