Punjab-Haryana High Court
Jaswant Rai Etc vs State Of Pb on 14 November, 2018
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-2399-SB of 2004
Date of Decision : November 14, 2018
Jaswant Rai and another .....Appellants
Versus
State of Punjab .....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. S.S. Narula, Advocate
for the appellants.
Mr. Sarabjit Singh Cheema, Assistant A.G., Punjab.
T.P.S. MANN, J.
The appellants, namely, Jaswant Rai and Manjit Singh were tried for committing the offence punishable under Section 7 of the Essential Commodities Act, 1955 read with clause 19(i) of the Fertilizer (Control) Order, 1985. Vide judgment and order dated 29/30.11.2004, learned Special Judge, Moga convicted them for the aforementioned offence and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months. The period already undergone by them was to be set off against the substantive sentence imposed upon them.
Aggrieved of their conviction and sentence, the appellants filed the instant appeal which was admitted on 7.12.2004 and their sentence was suspended during the pendency of the appeal.
1 of 8 ::: Downloaded on - 24-03-2019 16:01:45 ::: CRA-S-2399-SB of 2004 -2- According to the prosecution, on 23.9.1995, SI Joginder Singh, Station House Officer, Police Station, Badhni Kalan was present at Maleana Chowk and heading a police party where he received a secret information that Jaswant Rai @ Fauji and Manjit Singh had brought spurious zinc fertilizer and kept the same in low lying land by the side of canal towards Daudhar and they were about to sell the same. In case a raid was conducted, they could be apprehended and large quantity of spurious fertilizer could be recovered from them. Believing the information to be reliable, SI Joginder Singh prepared ruqa and sent it to the Police Station where FIR was lodged. He then summoned Balwant Singh and Gurdev Singh, Fertilizer Inspectors, who reached the spot. From the specified place, 263 bags of zinc sulphate, each weighing 10 kgs., were recovered. Out of those bags, 169 bags were of Shambhu Brand 21%, shown to be manufactured by Ganga Chemical Fertilizer, Faridabad, whereas remaining 94 bags were of Suraj Brand 21% which was bearing mark of manufacturer as Universal Industries, Nanital. From each of the bags of Shambhu brand and Suraj brand, Balwant Singh, Fertilizer Inspector had drawn three parcels. Mouth of bags were found stitched with machine. Baljit Singh, Fertilizer Inspector sealed the samples with his seal "AGRI.DEPTT.FDK." and Form 'J' was filled up. One sample of each brand was given to the accused while two other samples were taken into possession by SI Joginder Singh. On return to the Police Station, the bags containing remainder fertilizer were deposited with the MHC. Two samples of each brand were kept by Balwant Singh, Fertilizer Inspector with him and sent the same for chemical analysis.
2 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -3- It is also the prosecution case that during interrogation Jaswant Rai accused suffered disclosure statement and got recovered 96 bags of aluminum powder, electric sewing machine, platform balance, weights, empty bags, hooks, etc. which were taken into possession. Rough site plan of place of recovery was prepared. Samples were drawn from 96 bags. As the accused were in custody, therefore, their samples were deposited with the MHC. The samples which were drawn by Fertilizer Inspector, were deposited in the office of Chief Agriculture Officer, Faridakot with Sukhwant Singh, ADO. Their analysis report was received. Jaswant Rai and Manjit Singh also disclosed during interrogation that they had sold various parts of zinc sulphate to Kamal Kumar, Sodagar Singh, Balwant Singh, Raj Kumar, Gursahib Singh, Amrik Singh and Kuldeep Singh. Samples of zinc sulphate fertilizer were drawn from fertilizer bags sold to such persons after effecting recovery of bags from them and such samples were also sent to the laboratory. They were not found according to the specification. The accused had sold spurious zinc sulphate to these persons by playing fraud with them. Accused were not holding any licence to sell such fertilizer. They were not possessing any record about such fertilizer in their possession. No licence was issued to such accused from Agriculture Department. They also did not issue any bill to any one for sale of fertilizer. Statements of prosecution witnesses were recorded and after completion of investigation, challan was presented in the Court. Learned trial Court supplied copy of challan under Section 207 Cr.P.C. to the accused and, thereafter, charged them for the aforementioned offence, to which they pleaded not guilty and claimed trial.
3 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -4- In support of its case, the prosecution examined eleven witnesses, namely, PW1 Sukhwant Singh, ADO, PW2 Dial Singh, Beldar, PW3 Balwant Singh, Fertilizer Inspector, PW4 Gursahib Singh, PW5 Kuldip Singh, PW6 Balvir Singh, Joint Director, Agriculture, Punjab, PW7 HC Kuldip Kumar, PW8 Rajesh Kumar, PW9 Inspector Joginder Singh, who was SI at the relevant time, PW10 Amrik Singh and PW11 Subash Chander Aggarwal.
On closure of prosecution evidence, entire prosecution case as well as evidence brought on record against the accused was put to them under Section 313 Cr.P.C.. They denied prosecution case as well as evidence against them. They pleaded that they were innocent and no spurious fertilizer was recovered from them. They alleged that they were brought from their house at Jagraon and false case was planted upon them.
In their defence, the accused initially desired to lead evidence but did not examine any evidence thereafter.
It may be worthwhile to mention here that when the appeal was taken up for final hearing on 14.2.2017, learned counsel for the appellants informed the Court that Jaswant Rai appellant was no more, as he had expired on 21.2.2011. Accordingly, learned State counsel prayed for an adjournment for obtaining verification of the said fact. Pursuant to the same, learned State counsel placed on record a short affidavit of Shri Sarabjit Singh, DSP, Deputy Superintendent of Police, Nihalsinghwala, District Moga as per which, the factum of Jaswant Rai appellant expiring on 21.2.2011 due to heart attack stood duly verified. Under these circumstances, the appeal qua Jaswant Rai appellant deserves to be 4 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -5- disposed of as having been abated more so, when no near relative of said Jaswant Rai has filed any application for leave to continue the appeal. The appeal, thus, survives qua challenge of Manjit Singh appellant to his conviction and sentence, as ordered by the learned trial Court.
Learned defence counsel has submitted that the two reports dated 28.9.1995 issued by the Analytical Chemist, Fertilizer Quality Control Laboratory, Ludhiana cannot be read in evidence as the prosecution did not examine the Analytical Chemist to prove the same. However, the said stand of the defence is devoid of any merit in view of the provisions of Section 293 Cr.P.C. which permits the prosecution to use as evidence in any trial the report of government scientific expert without requiring the expert to step into the witness box and proving the same.
As regards culpable mental state of the accused, Section 10-C of the Act requires that the Court shall presume the existence of such mental state though it would be open to the defence to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Further, where a person is prosecuted for contravening any order made under Section 3 of the Act and possessing without lawful authority or without permit, licence or other document, the burden of proof that he had such authority, etc. shall lie on him. At the same time, Clause 19 of the Fertilizer (Control) Order requires that no person shall himself or by any other person at his behest manufacture (Import) for sale, sell or distribute any fertilizer, which is not of prescribed standard or distribute any mixture of fertilizers which is not in conformity with the standard as may be specified by the Central Government or stock or exhibit for sale or 5 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -6- distribute any fertilizer which is adulterated or is an imitation or substitute for another fertilizer under the name of which it is sold.
Though the accused, when examined under Section 313 Cr.P.C. denied recovery of any fertilizer from their possession, but that by itself is no ground to hold that no such recovery had been effected from them. When the accused are denying their possession over bags of fertilizer recovered from them as per prosecution version, it shoes that they had nothing to say that they were authorized or licensed to keep such fertilizer in their possession.
The analysis reports of fertilizer indicate that the so called fertilizer which was in possession of the accused was not a fertilizer at all. The fertilizer recovered indicated that it was a fertilizer though, in fact, it was not a fertilizer at all as zinc content was 0.0 as per analysis against 21% as mentioned on the bags which purported to contain zinc sulphate.
Learned defence counsel has objected to the sampling of the fertilizer by submitting that the sample was to be drawn in an air tight glass container. However, the Fertilizer (Control) Order also permitted taking of sample of fertilizer in a thick gauged polythene bag, which had been done by the authorities at the time of apprehension of the accused with the spurious fertilizer.
Learned defence counsel has submitted that even if the prosecution version is accepted it would, at the most, make out a case of preparation to commit offence which is not punishable under the Act. However, this Court finds that there were three charges against the appellants. First charge relied to recovery of 263 bags of zinc sulphate 6 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -7- fertilizer, second related to recovery of 96 bags of aluminum powder which was imitation of zinc sulphate while the third related to sale of fertilizer to individuals. The charge under the third head has not been accepted by the learned trial Court primarily for the reason that the various private individuals who allegedly purchased the fertilizer from the appellants had not supported the prosecution case and were, thereafter, declared hostile. Even the second charge has not been relied upon by the learned trial Court. The prosecution has, however, led sufficient evidence qua the appellants found in possession of 263 bags of alleged zinc sulphate fertilizer. Merely because the appellants were not shown to be selling the spurious fertilizer is no ground to absolve them of the charge against them as possession simpliciter of the spurious fertilizer is also culpable and, therefore, the appellants could not be exonerated of the charge against them.
In view of the above, no case is made out for setting aside the conviction of Manjit Singh appellant as recorded by the learned trial Court.
As regards the question of sentence, it may be noticed that Manjit Singh appellant is facing the criminal prosecution for the last more than 23 years. Apart from the present case, he is not shown to be involved or convicted in any other case. As per the custody certificate already brought on record by the learned State counsel, he has undergone a period of three months and twenty five days. At the same time, it may be noticed that Manjit Singh appellant had been playing with the dreams of farmers who use fertilizer in order to enhance the production of the crop. So much so that the farmers spend hard earned money in buying fertilizer which, later on, turn out to be spurious with zero percent of zinc resulting in the 7 of 8 ::: Downloaded on - 24-03-2019 16:01:46 ::: CRA-S-2399-SB of 2004 -8- farmers left high and dry and their dreams dashed to the ground when the fertilizer used by them turns out to be spurious and of no use to the farmers at all.
Taking into consideration the totality of the circumstances, this Court is of the view that the sentence of imprisonment of five years imposed upon Manjit Singh appellant is on the higher side which deserves to be reduced.
Resultantly, the appeal of Jaswant Rai appellant is disposed of as having abated. The appeal of Manjit Singh appellant is disposed of by maintaining his conviction, as ordered by the learned trial Court but reducing his substantive sentence of imprisonment from five years to rigorous imprisonment for two years. The sentence of fine, alongwith its default clause, is maintained.
( T.P.S. MANN )
November 14, 2018 JUDGE
satish
Whether speaking/reasoned : YES / NO
Whether reportable : YES / NO
8 of 8
::: Downloaded on - 24-03-2019 16:01:46 :::