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1988 DIGILAW 481 (MAD)

Rajagopal v. Inspector of Police, Mambalam

1988-12-08

JANARTHANAM

body1988
Judgment :- Appellants/Accused 2 to 9 are each convicted and sentenced to rigorous imprisonment for three months and a fine of Rs.100 in default to undergo rigorous imprisonment for 15 days, for the violation of Clause 3 of the Cement (Quality Control) Order, 1962 punishable under Sec.7(1) (a)(ii) of the Essential Commodities Act, 1955. 2. THE BRIEF FACTS ARE: (i) P.W.8, the Inspector of Police, C.S., C.I.D., Madras on some special information raided the premises at 5/65, Amman Koil Street, Noombal Village, at 12.00 noon after giving advance intimation to the Court. During the course of the raid, he found some stone powder, empty gunny and polythene bags, certain bags of standard quality cement stored inside the premises. He seized them under house search list Ex.P8 attested by P.Ws.3 and 4. Then P.W.8 went to Maduravoil Police Station and registered a case in Crime No.260 of 1983 under Sec.420 I.P.C., against the Accused. He also caused photographs of the premises to be taken by P.W.7. Ex.P6 series are photographs. P.W.8 took samples of stone power quality cement and adulterated cement and sent them for the purpose of analysis to P.W.6, analyst. (ii) On analysis, the samples marked as B.1 and D.1 were found to be adulterated. Consequently, P.W.8, issued Test Certificate Ex.P5 to this effect. (iii) After completing the formalities of the investigation, P.W.8 laid a report under Sec.173 Crl.P.C., against the appellants and others for violation of clause 3 of the Cement Quality Control Order, 1962, punishable under Sec.7(1)(a)(ii), of the Essential Commodities Act. 3. Thecourt below, on perusal of the materials questioned the appellants and another (acquitted) about the accusation levelled under Clause 3 of the Cement Quality Control Order, 1962 read with Sec.7(i)(a)(ii) of the Essential Commodities Act. They denied the same and claimed to be tried. 4. During trial, the prosecution in proof of its case examined 8 witnesses besides filing Exs.P1 to P8 and marking M.Os.1 to 15. 5. The appellants and another (acquitted) when questioned under Sec.313, Cr.P.C., regarding the incriminating circumstances appearing against them, denied their complicity in the crime. 6. The Court below on perusal of the evidence placed before him and after hearing the arguments of the learned Government Advocate (Special) acquitted accused 1 and convicted and sentenced accused 2 to 9/ appellants herein, as stated above giving rise to this appear. 7. 6. The Court below on perusal of the evidence placed before him and after hearing the arguments of the learned Government Advocate (Special) acquitted accused 1 and convicted and sentenced accused 2 to 9/ appellants herein, as stated above giving rise to this appear. 7. The learned counsel appearing for appellants would contend that the materials available on record are so scanty as is not possible for this court to fasten or mulct criminal liability upon the appellants as had been done by the Court below, the consequence of which is that, the appellants herein are liable to be acquitted by giving them the benefit of reasonable doubt. 8. Let me endeavor to sift the materials available on record in the light of the arguments advanced by the learned counsel for appellants. 9. Out of eight witnesses examined P.Ws.1 to 5 had been examined to speak to the letting of the premises to the second accused/ first appellant herein. P.W.2 has been examined to point out that the adulterated cement has been stored in the premises for the purpose sale. P.Ws.3 and 4 are the mahazar witnesses evidencing the seizure effected by P.W.8 from the premises on the relevant date in question under House Search List, Ex.P8. P.Ws.2, 3 and 5 turned wholesale hostile to the prosecution. Their evidence cannot at all be considered for any purpose whatever. Of course, P.W.4, another mahazar Ex.P2. Yet his evidence is of on use to the prosecution in view of the fact that what he would state is that, what was seized on the relevant date in question was about 100 bags of cement and nothing else though he would deny the suggestions that he happened to sign the mahazar in the police station. 10. With regard to the actual seizure of the incriminating articles, there remains the evidence of P.W.8 alone, the Investigating Officer. The mere fact that P.W.8 is an investigating officer is not by itself sufficient to reject his testimony evidencing seizure, unless there are materials available to point out that his evidence cannot at all be safely relied upon. No doubt true it is that the samples taken as B.21 and D.1 on the date in question were found to be adulterated on examination by P.W.6, as stated in the certificate Ex.P5. No doubt true it is that the samples taken as B.21 and D.1 on the date in question were found to be adulterated on examination by P.W.6, as stated in the certificate Ex.P5. In reliance is placed on the evidence of P.W.6 coupled with the Test Certificate Ex.P5 issued by him, it goes without saying that what was seized from the premises by P.W.8 was a sub-standard cement. 11. The learned counsel appearing for the appellants would seriously content that reliance cannot at all be placed on Ex.P5, the Test Certificate, in view of the fact that P.W.6 did not perform all the ten tests prescribed under Cl.2(b) of the Cement (Quality Control) Order, for finding out as to whether the samples subjected to examination where standard or sub-standard as prescribed under the Order. P.W.6, the Analyst would categorically admit that in the course of analysis, he did not perform all the tests prescribed under Cl.2(b) of the Cement (Quality Control) Order. On the face of such evidence, I am of the view that unless all the ten tests are performed by the analyst, it cannot be stated that the samples subjected to chemical analysis only to a certain of the tests are substandard. 12. In this context, an useful reference may be made to the decision in Rangaraj v. State, 1987 L.W. (Crl.) 424, it is observed therein as follows: "..Standards for ten varieties of cements are prescribed in Cl.2(b) of the Order, it would be better for the Analyst that all the ten tests are conducted so as to estimate the possibility of the appellant saying that the cement in respect of which a sample was taken, does not belong to the three varieties in respect of which analysis was made. As all the ten tests were not conducted it would not be safe to convict the accused on the basis of the report of the Analyst.." In view of what has been stated above, I am of the view that it would not be safe to convict the appellants/ accused 2 to 9, on the basis of the perfunctory report of the Analyst. As such, the conviction and sentence of the appellants are not sustainable in law. 13. In the result, the appeal is allowed, the conviction and sentence are set aside and the appellants are acquitted. As such, the conviction and sentence of the appellants are not sustainable in law. 13. In the result, the appeal is allowed, the conviction and sentence are set aside and the appellants are acquitted. The fine amounts aid by them, if any, are directed to be refunded to the appellants.