HASMUKHLAL HARILAL THAKKER v. STATE — 1993 DIGILAW 64 (GUJ)

J. N. BHATT, J. ( 1 ) BY this appeal under section 374 of the Criminal Procedure Code 1973 (Code for short hereinafter) the appellant/original accused No. 1 has questioned the legality and validity of the conviction and sentence order recorded by the learned Special Judge Ahmedabad in Special Case No. 3 of 1984. ( 2 ) A resume of the material facts leading to the rise of the present appeal may be shortly stated at this stage. The appellant herein who is the original accused No. 1 and his father Hariram Chimanlal Thakkar were tried by the learned Special Judge Ahmedabad for the offence punishable under section 7 of the Essential Commodities Act 1955 (the ACT for short hereinafter) for contravention of clauses 16 and 22 of the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 (the Order for short hereinafter) and the terms and conditions of the licence for running the shop. In that it was further alleged that accused No. 2 father of the present appellant was the owner and the licence holder of the shop situated near Khadia Char Rasta Kothi Sheri and he was dealing in edible oils at the relevant time. ( 3 ) ACCORDING to the prosecution case the officers of the Food and Civil Supplies Department upon receipt of an information that the price higher than the prevalent price for hydrogenated vegetable oil (vanaspati ghee) was being taken by the accused persons arranged a raid and it was effected on 26. 4. 1984. A punter (customer) sent by raiding party Shrikant Girdharlal Sanghvi alongwith a panch witness - Mehul Rameshchandra Patel had been sent to the said shop of the accused persons for the purchase of one tin of vanaspati ghee. The raiding party had made elaborate arrangement for the purpose of the raid by giving three currency notes of denomination of Rs. 100 each initialed by the Deputy Food and Civil Supplies Controller. The said customer Shrikant alongwith the panch witness Mehul went to the shop of the accused where the accused No. 1 the appellant herein was present and other members of the raiding party were waiting at some distance from the shop of the accused persons. 100 each initialed by the Deputy Food and Civil Supplies Controller. The said customer Shrikant alongwith the panch witness Mehul went to the shop of the accused where the accused No. 1 the appellant herein was present and other members of the raiding party were waiting at some distance from the shop of the accused persons. ( 4 ) IT is the prosecution case that as earlier decided the said customer Shrikant gave signal by scratching his head after purchase of one tin of vanaspati ghee and made payment of Rs. 280 instead of Rs. 250 which was prevalent price and the price mentioned in the bill at Ex. 18. Thus according to the prosecution version the accused persons had taken an extra amount of Rs. 30 than the price prevalent at the relevant time for one tin of vanaspati-ghee of 16. 5kg. After the raid was effected and necessary panchnama was prepared the appellant herein/original accused No. 1 is alleged to have made confessional statement which is produced at Ex. 27. There were following three allegations against the accused persons: (1) that excess price was being charged by the accused in respect of sale of vanaspati ghee tin; (2) that there was deficit of 40 Kgs. Vanaspati Ghee on 26. 4. 1984 in the licence shop of the accused No. 2 and the said quantity was disposed of by the accused persons in contravention of the said Order of 1981; (3) that the accused persons had not displayed the stock of essential commodity that is vanaspati ghee in contravention of clause I of the Order and the conditions of the licence. Thus in short the prosecution version was that the price of one tin of 16. 5 Kg. vanaspati ghee was Rs. 250 and accused No. 1 had also issued a bill for Rs. 250 for one tin of vanaspati ghee while he had as such recovered Rs. 280 for the same from the fake customer - Shrikant and thereby charged the price higher than the price which was fixed and prevalent at that time. Vanaspati ghee is listed as an essential commodity in Part I of Schedule I at item 3 of clause (D) under the heading Edible Oils under the said Order. 280 for the same from the fake customer - Shrikant and thereby charged the price higher than the price which was fixed and prevalent at that time. Vanaspati ghee is listed as an essential commodity in Part I of Schedule I at item 3 of clause (D) under the heading Edible Oils under the said Order. According to the prosecution case the rate of margin of profit in respect of the said essential article was regulated by the provisions of the said Order. Thus the prosecution alleged that the clauses 16 and 22 of the said Order of 1981 had been violated and condition Nos. 4 6 (3) 7 8 and 9 of the Licence issued to the accused No. 2 in respect of sale of edible oils had also been violated by the accused persons. ( 5 ) THE accused persons pleaded not guilty and claimed to be tried. The defence of the accused has been that punter Shrikant who had gone alongwith the panch witness-Mehul to the premises of the shop of the accused No. 2 on the date of the raid requested accused No. 1 Hasmukhlal who was present in the shop to deduct earlier dues of Rs. 30 which were payable by him (Shrikant) to accused No. 2 Hariram. Thus the accused pleaded that on account of the request made by the said customer-Shrikant an amount of Rs. 30 was also recovered over and above the price of Rs. 250 for the said vanaspati ghee tin out of the three currency notes of 100 denomination each. Thus the defence contended that out of the said amount of Rs. 300 the actual price of vanaspati tin in question was recovered and remaining Rs. 30 had been recovered towards the past dues as requested by the customer-Shrikant. In so far as the accused No. 2 was concerned it was specifically pleaded that he was not present at the time of raid at the shop and he was not guilty for any offence. ( 6 ) IN order to substantiate and fortify the charges against the accused the prosecution has placed reliance on the following five witnesses; -- pw NO. Name Ex. ( 6 ) IN order to substantiate and fortify the charges against the accused the prosecution has placed reliance on the following five witnesses; -- pw NO. Name Ex. No -- 1 Shrikant Gordhanlal Sanghvi 17 2 Mehul Rameshchandra Patel 20 3 Rajesh Amrutlal Mehta 21 4 Ghanshyambhai Ambalal Patel 23 5 Khumaji Badaji Bodat 31 -- the prosecution has also placed reliance on the documentary evidence to which reference will be made by this court as and when required at an appropriate stage. ( 7 ) ON appreciation of the facts and circumstances and the evidence on record the learned Special Judge held accused No. 2 not guilty and acquitted him from the aforesaid charges against him. However accused No. 1 was found guilty in so far as the charging of higher price by him was concerned in respect of the vanaspati ghee tin. In other words the trial court found accused No. 1 the appellant herein-Hasmukhlal guilty by holding that he sold one tin of Vanaspati ghee which is an essential article and he charged Rs. 30 more than the prevalent price and the amount mentioned in the bill No. 501 on 26. 4. 1984 and thereby he has violated clause Z of the said Order. It may also be mentioned that the trial court found that the prosecution has failed to prove that there was defecit of 40 Kgs. of vanaspati ghee on 26. 4 and; vanaspati ghee of that quantity was disposed of by the accused in contravention of Order 1981. It was also held by the learned trial Judge that the prosecution has failed to prove that the accused had not displayed the retail price of the said essential article - vanaspati ghee- in contravention of clause 16 of the said Order and the conditions of the licence. The accused No. 1 came to be convicted for the offence under sections 3 and 7 of the Act and for contravention of clause 22 of the Order read with conditions Nos. 4 6 (3) 7 8 and 9 of the Licence granted to the accused No. 2 and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500 and in default to undergo further rigorous imprisonment for one month. Therefore the original accused No. 1 appellant herein has come up before this court challenging its legality and vaidity. 500 and in default to undergo further rigorous imprisonment for one month. Therefore the original accused No. 1 appellant herein has come up before this court challenging its legality and vaidity. Before the merits of this case are examined in greater details the following facts which are not in controversy may be enumerated: 1 that the appellant/accused had sold one tin of vanaspati ghee to one Shrikant Sanghvi by issuing Bill No. 501 on 26. 4. 1984 which is produced at Ex. 18. 2 the said bill is in respect of sale of one tin of vanaspati ghee and the amount of Rs. 250 was charged by the appellant for the sale of Tandurust Vanaspati Ghee weighing 16. 5 kg: 3 the appellant-Hasmukhlal had returned Rs. 20 to the said customer Shrikant alongwith the bill for Rs. 250; 4 the find of three currency notes of Rs. 100 denomination each from the person of the appellant - Hasmukhlal and Rs. 20 and the bill for Rs. 250 from the person of the customer Shrikant Sanghvi. The said currency notes of Rs. 300 ware initialed by one of the officers of the raiding party; 5 Shrikant and one panch witness Mehul had gone to the shop of the accused where another prosecution witness Rajesh Mehta and other members of the raiding party were standing at a distance from the shop of the accused. The dispute revolves round about the payment of Rs. 30 over and above the amount of Rs. 250 mentioned in the bill at Ex. 18. According to the prosecution case the accused demanded excess price for the vanaspati ghee whereas the defence of the accused is that the said amount of Rs. 30 came to be recovered towards the past unpaid price as requested by Shrikant. Thus the controversy has shrunk down to a very narrow dimension. Other allegations made by the prosecution are not upheld by the trial court. ( 8 ) IN order to substantiate the allegation which is upheld by the trial court the prosecution placed reliance on the five prosecution witnesses. P. W. 1 Shrikant Gordhanlal Sanghvi is examined at Ex. 17 and P. W. 2 Mehul Rameshchandra Patel is examined at Ex. 20. They have not supported the prosecution version. P. W. 3 Rajesh Amrutlal Mehta who is examined at Ex. P. W. 1 Shrikant Gordhanlal Sanghvi is examined at Ex. 17 and P. W. 2 Mehul Rameshchandra Patel is examined at Ex. 20. They have not supported the prosecution version. P. W. 3 Rajesh Amrutlal Mehta who is examined at Ex. 21 and P. W. 4 Ganshyambhai Ambalal Patel who is examined at Ex. 23 admittedly were not present in the shop of the accused when the incriminating transaction transpired. P. W. 5 Khumaji Badaji Bodat is examined at Ex. 31. Evidence of P. W. Nos. 3 4 and 5 admittedly does not directly prove the allegation that an amount of Rs. 30 was charged by the accused in excess of the price prevalent at the relevant time in respect of vanaspati ghee. The important witnesses i. e. P. W. Nos. 1 and 2 who were present in the shop of the accused have not supported the prosecution version. ( 9 ) THE prosecution has also placed reliance on the confessional statement made by the accused No. 1 which is produced at Ex. 27. It is also contended on behalf of the prosecution that the circumstantial evidence emerging from the facts and circumstances of the present case completes the entire chain indicating the guilt of the accused beyond reasonable doubt. Thus it is contended that the circumstantial evidence and the confession of the accused would go to indicate and show that accused No. 1 appellant herein has charged an amount of Rs. 30 in excess of the price prevalent at the relevant time in respect of vanaspati ghee and thereby he was guilty for the offence punishable under section 7 read with section 3 of the Act read with clause 22 of the said Order of 1981. ( 10 ) THE statement of the accused was recorded after the raid was effected which is recorded under section 24 of the Evidence Act and it is produced at Ex. 27. It came to be detracted in the course of the prosecution in the trial court. Thus the circumstantial evidence and the evidence at Ex. 27 are relied on by the prosecution. No doubt it is true that the confession of the accused could be used by the prosecution against the accused provided it is found voluntary and trust-worthy. Thus extra judicial confession is one of the pieces of evidence. Thus the circumstantial evidence and the evidence at Ex. 27 are relied on by the prosecution. No doubt it is true that the confession of the accused could be used by the prosecution against the accused provided it is found voluntary and trust-worthy. Thus extra judicial confession is one of the pieces of evidence. It is also settled proposition of law that when a confession is retracted it can also be acted upon if substantially corroborated by independent evidence. No doubt law does not require that the evidence of extra judicial confession should in all cases be corroborated. However such a confession or extra judicial confession should in all cases be corroborated. However such a confession or extra judicial confession is always treated as a weak piece of evidence and therefore it can be used alongwith other reliable evidence to prove the guilt of the accused beyond reasonable doubt. It is incumbent upon the prosecution to prove the guilt of the accused without any shadow of doubt. Conviction can be based on circumstantial evidence and there can be no any quarrel about this proposition of law. However it is also settled proposition of law that for conviction on circumstantial evidence the following conditions ought to be established; 1 the circumstance from which the conclusion of guilt is drawn must be fully established and not may be established; 2 that all the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should be such as to exclude every hypothesis except the hypothesis that the accused is guilty; 3 that the circumstances should be of conclusive nature and tendency; 4 that they should exclude every possibility except the one to be proved; and 5 there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it also must show in all human probability that the act must have been done by the accused as alleged by the prosecution. ( 11 ) BEFORE a person could be held guilty on the strength of the circumstantial evidence the circumstances in question must be satisfactorily established and proved. the circumstances must bring home the guilt of the accused beyond any shadow of doubt. ( 11 ) BEFORE a person could be held guilty on the strength of the circumstantial evidence the circumstances in question must be satisfactorily established and proved. the circumstances must bring home the guilt of the accused beyond any shadow of doubt. If the circumstances could be reasonably explained by any reasonable hypothesis then the accused must have the benefit of that hypothesis or plea. This proposition is very well dealt with and extensively explored and requires no further elucidation. ( 12 ) IN the light of the aforesaid proposition of law if the defence of the accused that the amount of Rs. 30 was charged by him not by way of excess amount over and above the price of the vanaspati ghee but it was towards the past or previous dues then it cannot be contended that such a hypothesis has no role to play or should be thrown over-board. Unfortunately for the prosecution the punter Shrikant Sanghvi P. W. 1 and Mehul Patel P. W. 2 who accompanied Shrikant as a Panch witness have not supported the prosecution version. The contention that the accused has explained by reasonable hypothesis the taking of amount of Rs. 30 cannot easily be brushed aside. Apart from the fact that some of the higher officers of the raiding party of the Civil Supplies Department have not stepped in the witness box. The prosecution is bound to prove the guilt of the accused beyond reasonable doubt even with the help of confessional statement at Ex. 27 whereas the defence has not to prove its defence beyond reasonable doubt but can also succeed on the preponderance of probability. If the defence or the hypothesis raised by the accused is probable or is acceptable in the proved set of circumstances the benefit must go to the accused. What should be the approach of the courts in appreciating the evidence in the nature of confession has been succinctly indicated by the Apex Court as early as in 1952 Kashmira Singh vs. State of Madhya Pradesh AIR 1952 SC 159 . It will be appropriate to rely the relevant paragraph from the aforesaid decision of the Supreme Court:"the confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. It will be appropriate to rely the relevant paragraph from the aforesaid decision of the Supreme Court:"the confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on il If it is capable of belief independently of the confession then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept". ( 13 ) THE aforesaid decision holds the field and is also relied upon by the Apex Court in Chandrakant Chimanlal Desai vs. State of Gujarat 1992 SCC (Criminal) 157. The aforesaid paragraph is also reproduced in this decision. In that case before the Supreme Court the confession of the accused No. 1 came to be detracted at the time when the accused was questioned under section 313 of the Code. The ratio propounded in the aforesaid decision is that the confession of an accused person is not an evidence in the ordinary sense of the term as defined in section 3 of the Evidence Act. It cannot be made the foundation of a conviction but it can be used in support of other evidence. Thus the confession of an accused can be taken as an aid but cannot be taken as a foundation. The evidence emerging from the record is required to be marshalled first and if other evidence is found incriminating then support also could be taken from the confession. But the confessional statement as such cannot from basis and then the court should seek corroboration from other evidence. The evidence emerging from the record is required to be marshalled first and if other evidence is found incriminating then support also could be taken from the confession. But the confessional statement as such cannot from basis and then the court should seek corroboration from other evidence. As noticed hereinbefore there is no direct evidence to prove as to what exactly transpired in the premises of the shop of the accused on the day of the raid. However there are circumstances which may prove the guilt of the accused. The circumstances relied on by the prosecution may go to show that the accused No. 1 who was present in the shop might have taken an amount of Rs. 30 by way of excess price for the tin of vanaspati ghee sold to the punter- Shrikant. But the defence of the accused that the said amount of Rs. 30 paid over and above Rs. 250 was towards the past dues cannot altogether be exclusively thrown over the board. It is true that the confession is not retracted earlier. It could have been retracted earlier. But the more factum that it was not retracted earlier would not be ipso facto sufficient or enough to prevent the accused to raise such a plea at a later stage and the fact that the prosecution has to prove the guilt of the accused beyond any shadow of doubt. The mere fact that the accused retracted his confessional statement at a very late stage and that too at the stage of recording the evidence before the trial court is not ipsi dixit sufficient to discard such a plea of reasonable hypothesis. In Chandrakant Chimanlal Desais case (supra) retraction of the confessional statement came to be made at a later stage and that too when the accused was questioned under section 313 of the Code. Thus that plea itself would not be sufficient to discard the defence raised by the accused. ( 14 ) HAVING examined the entire conspectus of the factual matrix of the case and while viewed in the light of the aforesaid relevant case law this court is of the opinion that the defence of the accused is probable and the prosecution cannot be said to have established the guilt of the accused beyond reasonable doubt. ( 14 ) HAVING examined the entire conspectus of the factual matrix of the case and while viewed in the light of the aforesaid relevant case law this court is of the opinion that the defence of the accused is probable and the prosecution cannot be said to have established the guilt of the accused beyond reasonable doubt. The appellant herein/original accused No. 1 is entitled to the benefit of doubt and consequently the impugned conviction and sentence order recorded by the trial court against the appellant/original accused No. 1 is also required to be quashed. ( 15 ) IN the result the appellant/original accused No. 1 is held not guilty and the impugned order of conviction and sentence is quashed and set aside. The appeal is allowed accordingly. Bail bonds shall stand cancelled. The amount of fine if paid shall be refunded to the appellant/accused No. 1. Appeal Allowed. .