Kerala High Court
Mahadeva Iyer vs State Of Kerala on 2 April, 2004
Equivalent citations: 2004CRILJ3957, 2004(2)KLT562, 2004 CRI. L. J. 3957, (2004) 20 ALLINDCAS 920 (KER), (2004) 3 CURCRIR 523, (2004) 4 CRIMES 537, (2004) 4 ALLCRILR 591, (2004) 1 KER LJ 796, (2004) 2 KER LT 562
JUDGMENT N. Krishnan Nair, J.
1. These appeals are directed against the judgment and order dated 5.5.2001 of the Special Judge for E.C. Act Cases, Thrissur in S.T. No.6/1999. Accused Nos. 1 and 2 in S.T. No.6/1999 are the appellants in Crl.A. No.426/2001 while the 3rd accused is the appellant in Crl. A. No.440/2001. The appellants were charged with the offences punishable under Section 7(1)(a)(ii) read with Section 3 of the Essential Commodities Act for the alleged violation of the provisions of Rule 5A, 43 and 58 of the Kerala Rationing Order and Rules 3 and 8 of the Kerala Foodgrains Dealers Licencing Order, After the trial, the learned Special Judge found the appellants guilty of the offences and convicted them. They were sentenced to undergo simple imprisonment for two years each and to pay a fine of Rs. 3,000/- each; in default to undergo simple imprisonment for three months each. The order of conviction and sentence passed against the appellants is seriously challenged in these appeals.
2. The prosecution case is as follows: Accused 1 and 2 are the partners of M/s. Ponnammal Balasubramaniam and Company which is the licensee of A.W.D.42 in Ramapuram in Kottayam District. The 3rd accused was the driver of a lorry bearing registration No.KL-7/F-3007. On 3.10.1997 at about 7.30 p.m. the accused unauthorisedly lifted 120 bags of rationed wheat from the wholesale dealer shop having licence No.A.W.D.42 in lorry bearing No.KL-7/F-3007 of which the 3rd accused was the driver. On coming to know of the unauthorised lifting of the rationed wheat from the wholesale dealer shop the local people surrounded the lorry. P.W.1 went to Ramapuram Police Station and informed the matter to P.W.5, the then A.S.I., who came to the scene and inspected the lorry and seized the rationed wheat. P.W.5 returned to the police station and registered Crime No. 149/97 of Ramapuram Police Station under Ext.P3 F.I.R. On 4.10.1997 P.W.5 gave intimation to P.W.4, who was the T.S.O. Meenachil to inspect A.W.D.42. After inspecting the said A.W.D. and verifying the stock P.W.4 prepared Ext.P2 mahazar. On verification of the stock it was found that there was shortage of 1.5 quintals of BPL (below poverty line) rice and also deficit of 1.5 quintals of common superfine rice. But there was a surplus of kl 14.05 quintals of wheat. The licence of the shop was suspended and PW.4 sent a report to the District Collector, Kottayam. As per the order dated 23.4.1998, the District Collector ordered for feiture of the entire amount of security deposit to the Government under Clause 51 (8) of the Kerala Rationing Order. The investigation of the case was taken up by P.W.7, the then C.I. of Police, Kaduthuruthy, who was also holding the charge of C.I. of Police, Ramapuram. After completing the investigation P.W.7 laid the charge before the court.
3. The accused denied the charge. Thereupon the prosecution examined P.Ws.1 to 7 and marked Exts.Pl to P5(c)(i). The defence examined 3 witnesses as D.Ws.1 to3 and marked Exts.D1 to D9. On an elaborate consideration of the evidence brought on record, the learned Special Judge found the accused guilty of the offences, convicted them and sentenced them as stated earlier.
4. The learned counsel for the appellants strongly contended that the order of conviction and sentence passed by the Lower Court is without jurisdiction and therefore the order is void. He placed much reliance on the decision of the Supreme Court in State of Tamil Nadu v. Parmasiva Pandian (AIR 2001 SC 2972). According to the learned counsel, mere parking of a lorry at a short distance from the shop and the alleged detection of few bags of wheat stacked in the lorry cannot ipso facto lead to the conclusion that the accused had committed the offence or they had actually participated in the offence. He further contended that the reasons given by the Lower Court for finding the accused guilty cannot withstand legal or judicial scrutiny. On the other hand the learned Public Prosecutor supported the order and urged that there is no ground for interference.
5. The first question arising for consideration is whether the order of conviction and sentence passed against the accused by the Special Court constituted for trial of the E.C. Act cases is sustainable since the Special Court has ceased to exist after 1998. In this case the crime allegedly committed by the accused was in the year 1997. The Special Court took cognizance of the offence in the year 1997 and convicted and sentenced the accused in the year 2001. Relying on the decision of the Supreme Court in State of Tamil Nadu v. Parmasiva Pandian (AIR 2001 SC 2972) the learned counsel for the appellants strongly contended that the order of conviction and sentence passed by the court is without jurisdiction and therefore the order is illegal. On the other hand the learned Public Prosecutor contended that though the Special Court constituted for trial of the E.C. Act cases ceased to exist after 1998, the cases registered under the E.C. Act cases can be tried before a Magistrate having jurisdiction as it was being done prior to enactment of E.C. Special Provisions Act, 1981. He pointed put that since the Presiding Officer of the Special Court was a Sessions Judge, it cannot be said that he had ho jurisdiction to exercise the powers of a Judicial Magistrate. An identical contention was raised before the Supreme Court in State of Tamil Nadu v. Parmasiva Pandian (AIR 2001 SC 2972). The Supreme Court held that during the period the E.C. Special Provisions Act was in force the Special Court constituted for trial of offences under E.C. Act had exclusive jurisdiction to try such cases and it has not been vested with power of Judicial Magistrate for the purpose of dealing with E.C. Act cases. In that case three accused were alleged to have committed offences under the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order, 1984 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. Two of the accused persons were produced before the area Magistrate who remanded them to police custody and subsequently they were produced before the Special Court at Madurai who passed successive remand orders for their custody in jail. The 3rd accused was directly produced before the Special Court and was remanded to custody by orders passed by the said court from time to time. The Supreme Court held that the Special Court which ceased to be a Special Court under the Essential Commodities Act, 1981, but continued as such under the Narcotic Drugs and Psychotropic Substances Act, 1985 had no power to remand the accused who were implicated for an offence under the Essential Commodities Act, 1955. It was contended before the Supreme Court that though the Special Court constituted for trial of E.C. cases ceased to exist, the Presiding Officer of the Special Court for trial of N.D.P.S. Act cases at Madurai who was also a Sessions Judge had power to pass the orders of remand under Section 167 of the Crl. P.C. as he was also exercising powers of a Judicial Magistrate in respect of cases tried by him. The Supreme Court held that since the Special Court is a court of exclusive jurisdiction for trial of particular classes of cases and it has not been vested with the power of Judicial Magistrate for the purpose of dealing with E.C. Act cases. In the present case the Special Court constituted for the trial of E.C. Act cases was a court of exclusive jurisdiction and it had not been vested with the power of Judicial Magistrate for the purpose of dealing with E.C. Act cases. Therefore, the learned Special Judge had no jurisdiction to pass the impugned order of conviction and sentence. It follows that the order of conviction and sentence passed by the learned Special Judge is clearly illegal and cannot be sustained in law.
6. According to me, even if it is assumed that the Special Judge had the jurisdiction to pass the impugned order, the order cannot be sustained on facts. The prosecution allegation is that the accused unauthorisedly lifted 120 bags of rationed wheat from the wholesale dealer shop having licence No. A.W.D. 42 in a lorry bearing No.KL-7/F-3007. The prosecution mainly relies on the evidence of P.Ws.1 to 3 and 5 to prove the allegation. According to P.Ws. 1 and 2 while they were sitting in the Local Committee Office, Ramapuram, they were told that a lorry was surrounded by the local people in front of the godown of accused 1 and 2. P.Ws. 1 and 2 along with another person by name Rajendran reached there. They saw a lorry loaded with wheat in front of the shop covered with tarpaulin and some people surrounding the lorry. The evidence of P.Ws.1 and 2 would only help the prosecution to show that when they reached the spot they saw the lorry in front of the godown of A.W.D.42 loaded with wheat bags and covered with tarpaulin.
7. P.W.3 is the star witness of the prosecution. According to him, when he was sitting in the premises of his Union Office, Ramapuram, headload worker Biju, accompanied by another person came to him and enquired whether he was prepared to load certain bags of wheat from the godown attached to the ration depot. He agreed to do so and went to the godown where the 1st accused was sitting. He lifted 120 bags of wheat and loaded in the lorry which was parked in front of the shop arid covered it with tarpaulin. Then some people of the locality surrounded the lorry. It appears that the Lower Court placed implicit reliance on the evidence on P.W.3. Admittedly P.W.1 was not a worker attached to the godown of the accused. It is in evidence that the accused had permanent workers who used to do the loading and unloading work. It was quite improbable that P.W.3 was called to do the loading and unloading work. As contended by the learned counsel for the appellants, a person alone cannot do the loading and unloading in a lorry carrying heavy bags as alleged None of the other workers has been examined to support the deposition of P.W.3. P.W.3 himself has admitted that on that day permanent workers of the accused were present for work. No reason is given as to why he was asked to do the work. Admittedly P.W.3 was a member of CITU. According to the defence, the members of the CITU Headload Workers Union were on inimical terms with them since accused 1 and 2 were not prepared to give a donation of Rs. 5,000/- demanded by the Union.
8. The learned Special Judge has also placed reliance on the evidence of P.Ws.4 and 5 to prove the guilt of the accused. P.W.4, who was the T.S.O. Meenachil, inspected the godown of A.W.D.42 and found out certain irregularities. P.W.5 was the A.S.I, of Ramapuram who reached this spot on the basis of the information furnished by P.W.1. He seized the lorry with 120 bags of wheat and prepared Ext.Pl mahazar. There is nothing in the evidence of P.Ws.4 and 5 to show that the accused lifted 120 bags of wheat. Under these circumstances it is not safe to rely on the evidence of P.W.3 without any corroboration to convict the accused.
9. As contended by the learned counsel for the appellants, mere parking of a lorry at a short distance from the shop and alleged detection of few bags of wheat stacked in the lorry cannot ipso facto lead to the conclusion that the accused had committed the offence. According to the learned Special Judge, accused 1 and 2 unauthorisedly lifted 120 bags of wheat violating C1.43 of the Kerala Rationing Order, which reads as follows:
"No authorised wholesale distributor shall, on or after the rationing date, supply or offer or attempt to supply any rationed article supplied to him by the Government to any person other than an authorised retail distributor, authorised establishment proprietor or holder of a special permit issued under C1.42, nor shall he supply, offer or attempt to supply such articles on or after the rationing date to an authorised retail distributor or an authorised establishment proprietor or a holder of special permit except under and in accordance with the provisions of this order".
According to me, none of the ingredients to attract C1.43 of the Kerala Rationing Order, 1966 has been alleged, much less established in the present case. There is not even a whisper either in the F.I.R or in the charge about any intention or attempt to sell the wheat in question to a non-dealer in violation of the prescribed rules. Even if it is assumed that the accused had loaded and stacked 120 bags of wheat in the lorry that by itself cannot constitute an offence under the Kerala Rationing Order or the Kerala Foodgrains Dealers Licensing Order. Loading or carrying goods in a vehicle per se cannot be labelled as an offence or an attempt to deliver the same to the non-dealer.
10. It cannot be also said that accused 1 and 2 had violated C1.58 of the Kerala Rationing Order which reads as follows:
"Every authorised wholesale distributor shall maintain a stock register of all rationed articles and such other accounts and registers in such forms as may be prescribed by the Commission by notification in the Gazette."
In this case the prosecution has no case that accused 1 and 2 have not maintained a stock register. On the other hand, there is evidence that P.W.4, the then T.S.O. Meenachil, inspected A.W.D.42 and verified the stock register. It is true that the entries in the stock register were not up to date. But, merely because all the entries were not made in the stock register it cannot be said that no stock register was maintained to attract C1.58 of the Kerala Rationing Order. It cannot also be said that the 3rd accused in the case was found in possession of rationed rice or rationed wheat in excess of the quantity. A lorry loaded with 120 bags of rationed wheat was found parked in front of the shop. Merely because the 3rd accused was the driver of the lorry it cannot be said that he was in possession of the rationed wheat in excess of the permissible quantity.
11. No doubt, there is no reliable evidence on record to support the case set up by the accused. According to the defence, the wheat which was found loaded in the lorry was not rationed article and it was being transported from a shop at Perumbavoor, to another dealer at Kottayam. It was also contended that the 3rd accused was taking wheat from Perumbavoor to Kottayam as directed by the Foodgrains dealers at Kottayam. Even if the case set up by the defence is a cooked story, the prosecution is entitled to succeed only if it can successfully prove that the accused have committed the offence alleged against them. On a consideration of the materials on record, I am of the opinion that the prosecution has not succeeded in proving the case beyond reasonable doubt. It follows that the accused in the case are entitled to the benefit of doubt.
For the reasons stated above, I set aside the order of conviction and sentence passed against the accused by the learned Special Judge. The accused are found not guilty of the offence and they are acquitted. These appeals are thus allowed.