Nazeer v. State — 1989 DIGILAW 215 (KER)

Judgment :- 1. This appeal and criminal revision petition arise from the judgment in S.T.case No.54/88 on the file of the Special Judge for Essential Commodities Act cases, Trichur. The first accused was found guilty of offences punishable under S.7(1) (a)(ii)of the E.C. Act read with S.3(2) (c) and (d) of the said Act and Clause.3 of the Kerala Edible Oil Seeds, Edible Oil, Vanaspati and Baby Food Dealer's Licensing Order, 1975. He has filed the appeal challenging the conviction and sentence. The 4th accused was found guilty of offence punishable under S.9(2) of the E.C. Act and he has been sentenced to pay a fine of Rs.1000/- in default of payment of fine to undergo simple imprisonment for a period of one month. He challenges the conviction and sentence in the criminal revision. 2. The case against the accused is as follows. The 4th accused is a ration dealer. He obtained delivery of 2 barrels of pamolein on 9-12-1987 as per Ext. P11(a) indent. He sold these two barrels of Pamolein to the first accused. The first accused with the help of 2nd and third accused got constructed a shed and these two barrels of pamolein was stored there for the purpose of distributing the same in black market. PW 1, the Sub Inspector of Police, Tellicherry got information on 10-12-1987 that pamolein was unauthorisedly stored in a shed. He prepared a search memorandum and proceeded to the sea-shore, where the shed was constructed. On the rear side of the building bearing No. T.M.C. 20/599 PWI saw a thatched shed and at about 5 p.m. he searched the premises of the shed and recovered the two barrels of pamolein. 3. Originally the case was registered against accused 1 to 3. Thereafter the 4th accused was also implicated. PWl sent a report to the effect that the accused have committed the offences punishable under the E.C. Act. 4. On the side of the prosecution as many as 16 witnesses were examined. But many of the witnesses turned hostile and did not support the prosecution. The Court below relied on the evidence of PWs 1 to 4 and held that two barrels of pamolein was stored in the shed belonging to the first accused and the first accused had no valid licence to keep 368 Kgs.of pamolein. Therefore he was convicted as aforesaid. The Court below relied on the evidence of PWs 1 to 4 and held that two barrels of pamolein was stored in the shed belonging to the first accused and the first accused had no valid licence to keep 368 Kgs.of pamolein. Therefore he was convicted as aforesaid. As against the 4th accused it was found by the court below that the accounts and registers recovered from the shop of 4th accused contained several false entries and therefore he committed the offence punishable under S.9(2) of the E.C. Act. 5. As regards the complicity of the first accused there is the evidence of PWs 1 to 4. It is not very much in dispute that two barrels of pamolein was recovered from the shed. The article recovered from the shed was sent for chemical analysis and Ext. P 27 is the report of the Assistant Chemical Examiner of the Government of Kerala. In the report it is stated that the samples were identified to be genuine pamolein. PWl recovered pamolein from a shed situated near the sea-shore. He prepared a mahazar and the mahazar was attested by PW2 and 3, Ext. P1 is the mahazar. From the evidence of PWs 1 to 4 it is clear that pamolein was recovered under Ext. P1 mahazar from the shed. 6. The next question that would arise for consideration is whether the shed belonged to the first accused and whether he had been possessing Pamolein unauthorisedly. The first accused denied having ownership or possession over the shed in question. The evidence of PWs 2 and 4 are important items of evidence relied on by the court below. PW2 is the person who attested the mahazar. He deposed that he saw the 3rd accused constructing the shed. He further deposed that half an hour prior to the recovery of the article from the shed, he saw accused 1 to 3 going out of the shed and entering a car. According to PW2, the shed was constructed two months prior to the recovery of pamolein. PW2 was cross-examined at length. It is true that he could not give the address or the father's name of the accused 1 to 3. However, he said that he knew all these three accused. According to PW2, the shed was constructed two months prior to the recovery of pamolein. PW2 was cross-examined at length. It is true that he could not give the address or the father's name of the accused 1 to 3. However, he said that he knew all these three accused. PW2 is a person residing very close to the shed and he deposed that he could reach the shed from his house in 5 minutes walk. I find no reason to discard the testimony of PW2. The court below found that the shed was constructed by the first accused by engaging accused Nos. 2 and 3 as workers. The finding of the court below to that effect appears to be reasonable. 7. There is also the evidence of PW4. On 10-12-1987 he had gone for purchasing medicine. After purchasing medicine on the way he met PW5 Ali. PW5 invited him for travelling in an autorickshaw and they together were proceeding in the autorickshaw. As they reached near Chali Mosque, they saw another autorickshaw in the road. That was a good vehicle. PW4 saw two barrels being unloaded from the autorickshaw by the 2nd and 3rd accused. The 4th accused also was present. He paid charge to the autorickshaw driver and left the place. Later PW4 saw accused 2 and 3 rolling these two barrels towards a shed. By the side of the shed PW4 saw the first accused standing. The first accused had some conversation with the 2nd accused and PW4 saw the first accused giving money to the 2nd accused. After receiving the amount the second accused left the place. The evidence of PW4 is fully supported by the evidence of PW5. PW5 would say that he had. travelled with PW 4 on the same day. But he did not fully support the case of the prosecution that the first accused was present near the shed. PW5 was declared hostile and was cross-examined by the public prosecutor. The evidence of PW4 was accepted by the trial court to find that the first accused was the owner of the shed. 8. It may be remembered that the unauthorised storing of essential commodities and the selling of the same in black market is a clandestine business. It is very difficult to prove this fact by clinching evidence. The evidence of PW4 was accepted by the trial court to find that the first accused was the owner of the shed. 8. It may be remembered that the unauthorised storing of essential commodities and the selling of the same in black market is a clandestine business. It is very difficult to prove this fact by clinching evidence. The evidence of PWs 2 and 4 would satisfactorily prove that it was the first accused who was in possession of the shed. PW2 saw the first accused coming out of the shed and PW4 saw the first accused paying wages to the 2nd accused. The shed was constructed in a sea shore and it is poromboke land. So, it is not possible to get any evidence to prove the ownership of the land or the shed. Therefore, the evidence of PWs 2 and 4 would show that it was the first accused who owned the shed and the same was being used for unauthorisedly storing essential commodities. The finding of the court below that the first accused had been in possession of pamolein more than the permissible quantity is reasonable and I find no reason to interfere with that finding. The conviction and sentence of the first accused is confirmed. 9. As regards the conviction of the 4th accused the court below has committed a serious error. Originally charge was framed against the 4th accused for unauthorisedly storing two barrels of pamolein. The charge was read over to the accused on 1-8-1988. The allegation against him is that he stored 368 Kg. of pamolein in two barrels and thereby committed the offence punishable under S.7(1)(a)(ii) read with S.3(2)(c) and (d) of the E.C. Act and Clause.3 of the Kerala Edible Oil Seeds, Edible Oil Vanaspati and Baby Food Dealer's Licensing Order, 1975. However, the 4th accused is now convicted for keeping false accounts and registers. No such charge was framed against him. Moreover, there was no report against the 4th accused alleging that he had kept false accounts and registers or he has tampered with any of the entries in the registers. If there was no report to that effect against the 4th accused, the court below was riot justified in taking cognizance of that offence. S.11 of the E.C.Act reads: 11. Moreover, there was no report against the 4th accused alleging that he had kept false accounts and registers or he has tampered with any of the entries in the registers. If there was no report to that effect against the 4th accused, the court below was riot justified in taking cognizance of that offence. S.11 of the E.C.Act reads: 11. Cognizance of offences-No court shall take Cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in" S.21 of the Indian Penal Code, 1860 (45 of 1860)". From the above section it is clear that the court below should have taken cognizance of the offence only if there was a report to that effect by the prosecuting agency. Here the allegation against the 4th accused was to the effect that he had stored Pamolein unauthorisedly. The prosecution evidence clearly shows that it was not the 4th accused, but the first accused who had stored pamolein in the shed in question. Therefore, the 4th accused had not committed any such offence. He was rightly found not guilty on that count. 10. It is also important to note that there is absolutely no evidence to show that the 4th accused has tampered with the registers and made false entries in the account and the registers. Some of the registers and account books were produced by the prosecution. Except the vague statement of PW 14, the rationing inspector, that he found out some irregularities, there is no evidence to prove as to what are the irregularities committed by the 4th accused. Ext.P14 ledger, Ext. P15 daily sales register, Ext. P16 book and Ext. P17 indent book were produced. If the Prosecution has a case that the accused tampered with these registers, they should have adduced clear and cogent evidence to show that the entries in these documents were falsely made by the accused. Such an evidence is lacking in this case. Therefore, the conviction of the 4th accused is clearly unsustainable. The conviction and sentence against the 4th accused is set aside. He is acquitted of all the charges against him. If he has paid the fine, the same shall be refunded to him. Such an evidence is lacking in this case. Therefore, the conviction of the 4th accused is clearly unsustainable. The conviction and sentence against the 4th accused is set aside. He is acquitted of all the charges against him. If he has paid the fine, the same shall be refunded to him. The conviction and sentence of the first accused is confirmed and Criminal Appeal No. 504 of 1988 is dismissed and Crl. R.P. NO. 924 of 1988 is allowed.