Punjab-Haryana High Court
Navtej Singh Alias Billu vs State Of Punjab on 16 January, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.S-1422-SB of 2001
.....
Date of decision:16.1.2014
Navtej Singh alias Billu
...Appellant
v.
State of Punjab
...Respondent
....
(2) Criminal Appeal No.S-1433-SB of 2001
.....
Ramesh Kumar and another
...Appellants
v.
State of Punjab
...Respondent
....
Coram: Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Bipan Ghai, Senior Advocate with Mr. Vishavjit Singh
and Mr. A.S. Sullar, Advocates for the appellant in Cr. Appeal
No.S-1422-SB of 2001.
Mr. K.D.S. Hooda, Advocate for the appellants in Cr.
Appeal No.S-1433-SB of 2001.
Mr. K.S. Aulakh, Assistant Advocate General, Punjab
for the respondent-State.
......
Inderjit Singh, J.
This judgment will dispose of above mentioned two criminal Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [2] appeals i.e. Criminal Appeals No.S-1422-SB of 2001 filed by Navtej Singh alias Billu and Criminal Appeal No.S-1433-SB of 2001 filed by Ramesh Kumar and Melu Singh as these arise out of the same judgment and order dated 29.11.2001 passed by learned Special Judge, Patiala.
The above criminal appeals have been filed against the judgment of conviction and order of sentence dated 29.11.2001 passed by learned Special Judge, Patiala, whereby accused-appellants Melu Singh, Navtej Singh alias Billu and Ramesh Kumar have been held guilty and convicted for the offence under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as `the Act'). They have been sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `1,500/- each and in default of payment of fine to further undergo rigorous imprisonment for two months each for the offence under Section 7 of the Essential Commodities Act. However, accused Major Singh has been acquitted of the charge as framed against him.
It is pertinent to mention here that Ramesh Kumar, Navtej Singh alias Billu, Major Singh and Melu Singh have been tried for the offence punishable under Section 7 of the Act as they had contravened Clause 7 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing Order, 1978 (hereinafter referred to as `1978 Order') and Clause 2 of the Punjab Light Diesel Oil and Kerosene Dealers Licensing (First Amendment) Order, 1978 (hereinafter referred to as `First Amendment 1978 Order') issued under Section 3 of the Act.
As per prosecution version, on 29.1.1993, DSP Rachhpal Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [3] Singh was present at Bus Stand of Village Baran along with other Police officials. On receiving a secret information against the accused, `Ruqa' was sent to the Police Station, on the basis of which formal FIR was recorded. Thereafter, they started checking the vehicles. After some time, oil tanker bearing No.PB-11-C-7037 came from Patiala side, which was stopped. It was being driven by Melu Singh and Navtej Singh alias Billu was sitting by his side. Accused Navtej Singh produced the papers relating to the oil contained in the tanker in the name of M/s Stream Lines Enterprises Private Limited, Ludhiana. He also produced the registration cover of the tanker which was in the name of Ramesh Chander. The tanker contained 12,000 litres of kerosene oil. The outlet channel was sealed. The tanker and the documents were taken in possession. Accused Melu Singh and Navtej Singh were arrested. Rough site plan was prepared.
On 2.2.1993, A.F.S.C. Sarup Singh was summoned by SI Amolak Singh. A.F.S.C. broke open the seals of the outlets and drew three samples in separate bottles. The samples measuring 750 mls. each were drawn from all the four chambers and were mixed and poured into aforesaid three bottles. Thereafter, the samples were sealed and the outlets of the tanker were also re-sealed. Statements of witnesses were recorded. During investigation, accused Ramesh Kumar and Major Singh were also arrested. On completion of necessary investigation, the challan was presented in Court.
Notice was served upon the accused under Section 7 of the Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [4] Act, to which the accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Constable Pardeep Kumar, who is a formal witness, he tendered in evidence his affidavit Ex.PW.1/A. PW-2 ASI Gurdial Singh mainly deposed regarding recording of FIR Ex.PA/1 after receiving the `Ruqa'. PW-3 Head Constable Bhupinder Singh is a formal witness, who tendered in evidence his affidavit Ex.PB. PW-4 R.S. Gill (Retired) Manager, Marketing Operations mainly deposed that on 2.2.1993, he was posted as Senior Depot Manager in the office of Indian Oil Corporation, Patiala. In response to the inquiry made by the Police relating to challan No.008162, he sent the reply dated 2.2.1993 under his signatures. Similarly, in respect of challan No.8431 dated 29.1.1993, he sent the reply vide letter dated 2.2.1993 (Ex.PC). Challan No.008162 dated 21.1.1993 was issued in favour of M/s Garg Oil Company, Dirba. Challan No.8431 dated 29.1.1993 was issued in the name of Major Oil Dealers, Patiala. Letter (Ex.PC) was issued on the basis of the office record. He also stated that Mark -`A' challan was not issued by their office. PW-5 Kasturi Lal mainly deposed that they are dealers of Indian Oil Company. He had got his Petrol Pump by the name of Garg Oil Company, Dirba. He had brought challan No.008162 dated 21.1.1993. Vide this challan they purchased 12,000 H.S.D. from Indian Oil Corporation Limited, Patiala. Copy of the original challan is Ex.PC/1. He had brought the cash book and the relevant entry relating to the challan was made at page 97 on 21.1.1993 and entry was also made at page 17 of the ledger. PW-6 Sarup Singh Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [5] mainly deposed that in the year 1993, he was posted as A.F.S.O. In the office of D.F.C., Patiala. Some Police officials had called him on 2.2.1993. He mainly deposed regarding taking samples from the four chambers of the tanker into three bottles of 750 mls. each, which were sealed with the seal of `AS' and he had signed the paper seal. Two samples were handed over to MHC Bhupinder Singh and one was taken by him to his office. PW-7 SI Naresh Kumar mainly deposed regarding presentation of challan after completion of the investigation. PW-8 Rachhpal Singh, DSP Traffic, Patiala, who was posted as SHO/Inspector, Police Station Sadar Patiala on 29.1.1993 and who is the Investigating Officer, deposed regarding secret information and sending of `Ruqa' and the recovery of the kerosene oil tanker etc. He also deposed that accused Navtej Singh produced the papers relating to the oil which were in the name of M/s Stream Lines Enterprises Private Limited, Ludhiana and were in two copies i.e. an original copy and a carbon copy. Said carbon copy is Mark-`A' on the file. It is the same which was produced by the accused. Accused Navtej Singh had also produced registration certificate of the tanker in question, which was in the name of Ramesh Chander. PW-9 SI Amolak Singh, who was with the Police party of Inspector Rachhpal Singh, mainly deposed regarding recovery and investigation of the present case. The evidence was closed after the tendering into evidence report Ex.PF of the Expert.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [6] evidence of the prosecution, but they denied the correctness of the evidence and pleaded themselves as innocent. Accused Ramesh Kumar stated that he is the owner of Tanker No.PB-11-C-7037. On the asking of Major Singh, he had given the tanker for carrying oil from Indian Oil Depot to his premises at Sirhind Road and had also received `400/- as fare through Melu Singh. Accused Major Singh when examined, he had taken the plea that he had been falsely implicated in the present case. He was licensee of the Indian Oil Company and was wholesale licensee of District Food and Supplies Controller, Patiala. He received the consignment from Indian Oil Company, Patiala through Tanker No.PB-11-C-7037 on 29.1.1993 and that was unloaded at his business premises. The same had been distributed as per rules. He had obtained receipt from Melu Singh, Driver regarding unloading of 12,000 litres of oil and paid `400/- as the fare. SI Amolak Singh had taken the bill book, stock register and sale register from him on 12.2.1993 and gave him receipt to this effect. His licence was suspended in pursuance of the registration of this FIR, but after his explanation his licence was restored vide Order dated 12.2.1993. Accused Navtej Singh had taken the plea that in January 1993, he was President of Petroleum Dealers Association, Patiala and had come to know that Tanker No.PB-11-C-7037 had been taken into custody by the Police of Police Station Sadar Patiala. He went there and pleaded before the Police that no offence was made out as the consignment was lawful and tanker was empty at that time. It was unloaded at the premises of Major Oil Company, who was a licensee and permit holder. During the Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [7] altercation in the Police Station he was made to sit there and later on falsely involved in this case. Accused Melu Singh had unloaded the material in the premises of Major Oil Dealer situated on Sirhind Road, Patiala. He had all the valid documents/papers with him. He was taken to Police Station Sadar Patiala and thereafter a false case was planted.
Accused examined DW-1 Gurdeep Singh, Inspector Grade-I, Food and Supply. He had brought the file pertaining to Major Oil Dealers, Patiala. vide letter Ex.DC the licence of the firm was suspended. Vide order Ex.DD, memo No.2466 dated 12.2.1993 the licence of the firm was restored under the orders of Dr. Bhupinder Pal Singh, District Food and Supply Controller, after due inquiry and no illegality or irregularity was found and the distribution of the oil was found to be in order as per departmental rules. DW-2 Harvinder Singh, Head Constable mainly deposed that the summoned record was not available in the Police Station and he identified the signatures of MHC Rupinder Singh on report Ex.DE.
After going through the evidence and material produced on record, the learned trial Court vide its impugned judgment and order convicted and sentenced accused-appellants for the offences as mentioned above. However, accused-Major Singh was acquitted of the charge as framed against him.
At the time of arguments, learned senior counsel for appellant-Navtej Singh alias Billu (Cr. Appeal No.S-1422-SB of 2001) argued that the allegations against Navtej Singh alias Billu were only that he was sitting in the tanker and he is Manager of Major Singh. He argued Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [8] that Navtej Singh is stated to be Manager employed by Major Singh, but there is no evidence on record to prove that he was employee/Manager employed by Major Singh. Learned senior counsel for the appellant further argued that Major Singh had already been acquitted. Major Singh had also been found innocent in the inquiry after verifying his account books etc. which were in order and no irregularity had been found. Again Melu Singh in his statement recorded under Section 313 Cr.P.C. has stated that he has produced the documents but the prosecution in order to involve Navtej Singh in this case, who being the President of the Petroleum Dealers Association, shown him sitting by the side of the driver and also shown that he produced the bill Mark-`A' and also the RC of the tanker. It is totally unnatural that the RC of the tanker would be with Navtej Singh, which further shows that he has been falsely implicated in the present case.
Learned counsel for appellants Ramesh Kumar and Melu Singh (Cr. Appeal No.S-1433-SB of 2001) argued that mere possession of kerosene is no offence. It is no where proved that it was only for sale. Learned counsel for appellants Ramesh Kumar and Melu Singh further argued that the Police cannot make search and seizure as per the law. He also argued that the bill Mark-`A' has not been proved on the record whether it is a fabricated document, who has fabricated the same and otherwise also, this Mark-`A' has not been exhibited. Learned counsel for the appellants further argued that the owner was not present on the spot. He also argued that the driver has also been falsely implicated. He is Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [9] simply authorized by the owner to drive the tanker. He is not concerned with these documents etc. In the alternative, learned counsel for the appellants argued that the case being of 1993, more than 21 years have already passed and the benefit under the provisions of Probation of Offenders Act, should be given.
On the other hand, learned Assistant Advocate General, Punjab appearing for the respondent-State has argued that the case of the prosecution has been duly proved by the PWs. There are no material discrepancies or improvements in the statements of the witnesses. The recovery of kerosene has been made from the tanker and it was without any proper documents and it is breach of the 1978 Order. The appellants were transporting kerosene without licence on the basis of forged documents. Therefore, he argued that there is no merit in these appeals and the same should be dismissed.
I have heard learned counsel for the appellants and learned Assistant Advocate General, Punjab appearing for the respondent-State and with their assistance have gone through the evidence on record minutely and carefully.
From the evidence on record, I find that first of all, as regards appellant-Navtej Singh alias Billu, who is stated to have been sitting on the side of the driver in the tanker, is not proved that he is employee of Major Singh co-accused, who has already been acquitted by the trial Court. Even PW-8 Inspector Rachhpal Singh-Investigating Officer in his cross-examination has stated that he had not collected any evidence in this Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [10] regard. He stated that he did not collect any documents pertaining to the fact that Navtej Singh was Manager of the firm. Secondly, when Major Singh has already been acquitted in view of the inquiry conducted by the Food & Supply Department that no irregularity had been found in his record nor any shortage etc. had been found with him, therefore, his Manager Navtej Singh cannot be convicted. Thirdly, I find that no role of Navtej Singh is stated in the recovery. It is no where the case of the prosecution that Navtej Singh was owner of the kerosene. It is no where the case of the prosecution that Navtej Singh forged the bill or that he had brought the kerosene for sale to some one else. The bill is Mark-`A' and it has not been proved. Navtej Singh in his statement recorded under Section 313 Cr.P.C. has stated that he was the President of the Petroleum Dealers Association and had gone to the Police Station and protested that no offence is made out. Only on that ground he has been involved in the case. Otherwise also, it looks improper that when Navtej Singh is neither owner of the truck nor stated to be owner of the kerosene, then he would produce this bill Mark-`A' and the RC of the tanker to the Police. RC is supposed to be in the possession of the driver on behalf of the owner. Therefore, from the above facts, I find that a reasonable doubt exists regarding involvement of Navtej Singh alias Billu and benefit of doubt always go to the accused. Hence, by giving benefit of doubt Navtej Singh is acquitted of the charges.
Resultantly, Criminal Appeal No.S-1422-SB of 2001 is allowed and the impugned judgment of conviction and order of sentence Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [11] recorded by the learned trial Court qua Navtej Singh alias Billu are set aside. Navtej Singh-accused/appellant is acquitted of the charge as framed against him. As the appellant is stated to be on bail, his bail/surety bonds stand discharged.
As regards the arguments of learned counsel for appellants Ramesh Kumar and Melu Singh, I find that as per 1978 Order applicable at that time, Clause 3 states that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted under this Order by the District Magistrate. Clause 2 (a) of 1978 Order states that dealer means a person engaged in the business of sale or storage for sale of light diesel oil or kerosene or both whether wholesale or retail and whether in conjunction with any other business or not, and includes his representative or agent; and an oil company marketing whole sale supply from its storage or selling points. The appellants were transporting 12,000 litres of kerosene oil in tanker without any licence or authority. In no way, it can be held that by transporting such a huge quantity of the kerosene in the tanker is no offence under this Act. If it is no offence, then there is no need to take a licence under the Act as well as under 1978 Order.
As regards the fact that the Police cannot make search and seizure, I find that it would be appropriate to reproduce Clause 15 of the 1978 Order, which reads as under:-
"15. Power of entry, search and seizure, etc.- (1) The Director, the District Magistrate, the Assistant Director, Food Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [12] and Supplies, the Food Inspector, Food Sub-Inspector, Food and Supplies or any other officer not below the rank of the Inspector of Police may, with a view to securing compliance with the provisions of this Order or to satisfying himself that the provisions of this Order or to satisfying himself that the provisions of this Order have been complied with and with such assistant, if any, as he thinks fit,-
(a) Enter upon and inspect any business premises of a dealer or any premises on which he has reason to believe that light diesel oil or kerosene or both have been, are being or are likely to be kept, stored, distributed, disposed of or to and from which light diesel oil or kerosene have been or are being or are likely to be removed or transported;
(b) Stop and inspect any vehicle or animal on which light diesel oil or kerosene oil or both are being carried for sale, supply or storage or any other purposes;
(c) Seize light diesel oil or kerosene or both found in the possession of such dealer or in any vehicle or on any animal in respect of which he has reason to believe that a contravention of this Order has been, is being, or is about to be committed; and
(d) Seize any record pertaining to light diesel oil kerosene or both in respect of which he has reason to Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [13] believe that contravention of this Order has been or is being or is about to be committed.
(2) Every person (including his agent or servant) in charge of the vehicle or animal or premises which is searched or is sought to be searched under the provisions of sub-
clause (1) shall allow the authority making the demand an access to such vehicle, animal or premises and shall also answer truthfully and to the best of his knowledge or belief all questions put to him.
(3) Provisions of section 100 the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search & seizures shall, so far as may be, apply to searches and seizures under this clause."
In view of the above Clause 15 of the 1978 Order, it is clear that Police Inspector has the power to make search and seizure and he has also the power to stop and inspect any vehicle, which is carrying light diesel oil or kerosene for sale, supply or storage or any other purposes. It was for the accused to tell for which purpose they were carrying away those 12,000 litres of kerosene without licence and other proper documents. So, there is clear violation of the provisions of the 1978 Order. The mere fact that the owner was not present cannot absolve from his liability. There is no evidence on record that this tanker was given on rent. No such rent, agreement etc. has been placed on record. Similarly, the driver cannot absolve himself from the liability by saying that he was only authorized by Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [14] the owner to drive the tanker.
Learned counsel for the appellants have placed reliance on the judgment of this Court in Atul Garg son of Janak Raj v. State of Punjab, 2012 (3) R.C.R. (Cr.) 936. I have gone through this judgment. This judgment having distinguished facts will not apply in the present case. Sub Inspector of the Police was not authorized or competent to make search and seizure, which is not the case in the present case.
Learned counsel for the appellants also placed reliance on the judgments of this Court in Sohan Singh v. State of Haryana, 1987 (1) R.C.R. (Cr.) 316; Ashwani Kumar v. State of Haryana, 2012 (3) R.C.R. (Cr.) 384 and Abdul Rashid and another v. State of Haryana, 2013 (4) R.C.R. (Cr.) 738. I have gone through the law laid down in these judgments. These judgments having distinguished facts will not apply in the present case, as these citations are under the Haryana Kerosene Dealers Licensing Order, 1976, whereas the present case is to be covered by 1978 Order.
Therefore, from the above, I find that appellants Ramesh Kumar and Melu Singh have been rightly convicted by the learned trial Court and their conviction is upheld.
As regards the alternative argument of sentence of the learned counsel for appellants Ramesh Kumar and Melu Singh, I find that the occurrence is of 29.1.1993 and now 21 years have already elapsed. The accused-appellants had suffered the agony of long criminal trial for the last 21 years. No other offence of the same nature has been brought to the Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh Cr. A. Nos.S-1422-SB of 2001 etc. [15] notice of this Court which they have committed during the last 21 years. They are the first offenders and they could be released by giving the benefit of Probation under the Probation of Offenders Act. Learned counsel for the appellants also placed reliance on the judgments of Dharam Pal v. State of Haryana, 2003 (4) R.C.R. (Cr.) 908; Subash Chand and another v. State of Punjab, 2004 (1) R.C.R. (Cr.) 332; Vipan Kumar v. State of Punjab, 2010 (4) R.C.R. (Cr.) 873, in which the accused had been released on probation where the offence under Section 7 of the Act has been committed and it is also held that there is no bar under the Probation of Offenders Act or under the Essential Commodities Act that the accused cannot be released on probation.
Therefore, keeping in view the facts and circumstances of the present case, Cr. Appeal No.S-1433-SB of 2001 is partly allowed and the impugned judgment of conviction passed by the learned trial Court is upheld and the order of sentence is modified and appellants Ramesh Kumar and Melu Singh be released on probation on their furnishing probation bonds in the sum of `10,000/- each with one surety each to the satisfaction of trial Court/successor Court with an undertaking to maintain peace and be of good behavior for a period of one year from the date of execution of bond and in the event of their failure to do so, they shall appear and undergo the sentence as and when called upon to do so. Fine is converted into costs of litigation.
January 16, 2014. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.03.11 10:41 I attest to the accuracy and integrity of this document Chandigarh