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2001 DIGILAW 561 (PAT)

Yogendra Mahto v. State Of Bihar

2001-07-10

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The instant appeal is directed against the judgment and order dated 4.4.1990 passed by the learned Special Judge, Essential Commodities Act, Sitamarhi, in G.R. case No. 547 of 1983 whereby and whereunder he convicted the appellant under section 7 of the Essential Commodities Act (hereinafter to be referred to as the Act) and sentenced him to undergo rigorous imprisonment for six months. 2. The informant Kamdeo Prasad, Supply Inspector, Sonbarsa (P.W. 4) got a confidential information that certain contraband articles, to wit, salt and sugar loaded on a truck bearing No. BRF 4725 were being taken to Nepal for smuggling and disposal thereof in blackmarket. After receiving the information the informant (P.W. 4) along with Gaya Prasad Choudhary, A.S.I. of Police and Amiri Singh, constable (not examined) set out to conduct raid and search to apprehend the miscreants indulging themselves in nefarious activities of smuggling of the aforesaid articles. The raiding party headed by the informant swung into action and it reached Sonbarsa bus stand where the truck, referred to above. with 100 bags of salt and 7 bags of sugar loaded thereon was found. P.W. 1 Rajendra Raut, driver of the truck and a cleaner present on the truck on being asked did not produce cash mamos in respect of salt and sugar. However, one memo in respect of 100 bags of salt bearing no signature of the appellant and two cash memos in respect of 4 + 3 bags of sugar in the names of Rajendra Sah and Achchelal Sah, confectioners with signatures thereon of the appellant were found in the truck. 3. The appellant had a shop at Sonbarsa bazar. He carried on business in salt. No stock or sale register and cash memo were allegedly maintained in the shop nor was displayed the board showing stock position and price of salt. The appellant was said to have got no licence for dealing in salt and sugar. The Nepal border situated not very far away from Sonbarsa bazar. 4. The driver and the cleaner of the truck stated to the informant that salt and sugar in question were loaded on the truck at the instance of the appellant for being carried to Sonbarsa bazar. The Nepal border situated not very far away from Sonbarsa bazar. 4. The driver and the cleaner of the truck stated to the informant that salt and sugar in question were loaded on the truck at the instance of the appellant for being carried to Sonbarsa bazar. The informant- supply inspector in the facts and circumstances drew an inference that the appellant was carrying salt and sugar for smuggling and sale thereof in blackmarket in the territory of Nepal. 5. The informant-supply inspector seized the aforesaid 100 bags of salt and 7 bags of sugar with the truck, referred to above, and prepared the seizure list (Ext. 3) in presence of independent witnesses, who also put their signatures (Ext. 1 series) thereon. He submitted a written report (Ext. 2) to the officer-in-charge, Sonbarsa Police Station, on the basis of which the formal F.I.R. was drawn up and Sonbarsa P.S. case No. 76 of 1983 giving rise to G.R. case No. 547 of 1983 was registered. Investigation was taken up and after completion thereof the chargesheet under section 7 of the Act was submitted against the appellant, Radhey Shyam Sharma, proprietor of M. S. Roop Narayan Mishra and Bhairoo Prasad, an employee of the aforesaid firm. The substance of accusation regarding violation of the provision of Bihar Essential Articles (Display of Prices and Stock) Order, 1977 was stated to the appellant. 6. The appellant pleaded innocence and claimed to be tried. He did not enter into defence. However, from trend of cross- examination of the prosecution witnesses, written statement submitted on behalf of the appellant and his statement recorded under Section 313 Cr. PC, the defence seemed to be that of total denial and false implication. It was pleaded that the appellant purchased 100 bags of salt from M. S. Mirjamail Govind Bux, Sitamarhi to be carried to his shop at Sonbarsa bazar and two confectioners, named, Rajendra Sah and Achchelal Sah had purchased respectively 4 bags and 3 bags of sugar from M. S. Rooplal Mishra, Sitamarhi, for which they duly received cash memos and salt and sugar were being carried on the aforesaid truck to Sonbarsa bazar where the truck was illegally intercepted and detained by Amiri Singh and Gaya Prasad Chowdhary, constable and A.S.I. respectively and as the appellant did not satisfy their illegal demand the truck load of sugar and salt was seized. It was denied that the appellant had any intention or had made any attempt for carrying salt and sugar into the territory of Nepal for smuggling and sale thereof in blackmarket. 7. In order to prove its case the prosecution examined P. W. 1, Rajendra Raut, driver of the truck, RW. 2 Kamdeo Jha, a seizure witness, RW. 3 Laldeo Rai, another seizure witness and P.W. 4 Kamdeo Prasad, the informant-supply inspector. 8. The learned Special Judge after taking into account the facts, circumstances and evidence on records found and held the appellant guilty and convicted and sentenced him as stated above vide the impugned judgment and order for having carried salt and sugar for being smuggled and sold in blackmarket in the territory of Nepal in violation of section 3 of the Act. 9. The appellant assailed the judgement and order of conviction and sentence passed against him on the ground that it was not based On law and facts and proper appreciation of evidence rather it was based on mere surmises and conjectures. 10. Now the only point for determination is whether the impugned judgment and order of conviction and sentence can be sustained and upheld on the basis of the materials available on the records. 11. The informant supply inspector (P.W. 4) was the most important and competent witness in the case. He stated that on getting information that a truck load of salt and sugar was being taken to Nepal for smuggling and sale of the articles he along with Amiri Singh and Gaya Prasad Choudhary (both not examined) of Sonbarsa Police Station intercepted the truck in question and, as no papers in respect of the salt and sugar were produced, he caused the truck and sugar as well as salt loaded thereon seized and seizure-list (Ext. 3) prepared in presence of witness who also put their signatures (Ext. 1 series). P.W. 3 Rajdeo Rai, supported the factum of seizure of salt, sugar and truck referred to above. He proved his signature (Ext. 1/1) on the seizure-list. P.W. 1, Rajendra Raut, was the driver of the truck. He stated that the supply inspector seized the truck and salt and sugar loaded thereon. In his cross-examination he stated that the appellant had asked him to carry the salt to Sonbarsa bazar. He proved his signature (Ext. 1/1) on the seizure-list. P.W. 1, Rajendra Raut, was the driver of the truck. He stated that the supply inspector seized the truck and salt and sugar loaded thereon. In his cross-examination he stated that the appellant had asked him to carry the salt to Sonbarsa bazar. It is also in his evidence that Rajendra Sah and Achchelal Sah were confectioners and they used to prepare and sell sweets. It is to be noted that the aforesaid 7 bags of sugar loaded on the truck were said to have been purchased by them and the cash memos also stood in their names. P. W. 2, Kameshwar Jha, was also said to have witnessed the seizure. Though he proved his signature (Ext. 1) on the seizure-list he stated that no truck of salt or sugar was seized in his presence. He was declared hostile by the prosecution. 12. Amiri Singh and Gaya Prasad Choudhary, both police officials and the investigating officers were not examined by the prosecution nor was there any explanation for their non-examination. Their non-examination, as per contention put forward on behalf of the appellant, must give rise to an adverse inference against the prosecution case. 13. Be that as it may, the seizure of 100 bags of salt and 7 bags of sugar along with the truck on which they were loaded is not disputed. However, mere recovery and seizure of salt and sugar did not give rise to an inference that aforesaid articles were being taken into the territory of Nepal for being smuggled and sold in blackmarket there. Though the appellant was charged for having violated the provision of Bihar Essential Articles (Display of Prices and Stock) Order, 1977, the learned court below did not find him guilty to that charge and he acquitted him thereunder on the ground that no valid and legal sanction for prosecution of the appellant was accorded by competent authority. The learned Special Judge did not state that order promulgated under section 3 of of the Act was violated by the appellant. Without making reference to violation of provision of any of the Control Orders made under Section 3 of the Act the learned court below found and held the appellant guilty and convicted him for having violated the provision of section 3 of the Act. Without making reference to violation of provision of any of the Control Orders made under Section 3 of the Act the learned court below found and held the appellant guilty and convicted him for having violated the provision of section 3 of the Act. The appellant was not charged for having sold or attempted to sell salt and sugar in blackmarket even & despite that he was convicted thereunder. It was in the evidence of the supply inspector (P. W. 4) that as per Bihar Sugar Control Order a confectioner could have five quintals of sugar without licence and at the relevant point of time no licence was required for sale of salt nor was there any limit for storage of salt. Under the circumstance, the appellant cannot be said to have violated any provision of Bihar Sugar Control Order or Bihar Essential Articles (Display of Prices and Stock) Order, 1977. 14. The learned defence counsel relying on the case reported in 1998 (1) Bihar Law Judgments, 379 (Mohan Kumar Singh & anr. V/s. State of Bihar) contended that when an essential commodity is recovered and seized from a truck during the course of transportation there would be no violation of. provision of any order made under Section 3 of the Act. Another contention was that even if the appellant had intention to transport salt and sugar to Nepal for being sold in blackmarket, as it was seized in the territory of Bihar and that too near the shop of the appellant where he carried on business in salt he could by no stretch of imagination be said to have smuggled or sold or even attempted to smuggle or sell the aforesaid articles in blackmarket in the territory of Nepal or anywhere else. The contentions seemed to be pregnant with meaning and substance. In terms of the ratio decidendi of the case of Malkiat Singh & anr. The contentions seemed to be pregnant with meaning and substance. In terms of the ratio decidendi of the case of Malkiat Singh & anr. V/s. The State of Punjab, reported in A.I.R. 1970 S.C. 713 though there is no evidence to give rise to an inference that the appellant made preparation & even if it is assumed he was preparing to take salt in Nepal, mere preparation on part of the appellant to smuggle or to sell salt and sugar in blackmarket in the territory of Nepal, unless something more was done to constitute an offence or attempt to commit the offence of smuggling and blackmarket could not be said to have amounted to an offence punishable under section 7 of the Act. In the case cited at the bar it was held that test for determining whether the act of the appellant constituted an attempt or preparation is whether overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the case at hand there is no material at all on records to establish that the appellant even attempted to transport salt and sugar in the territory of Nepal for being smuggled and sold there in blackmarket, and, as such, conviction and sentence recorded against him cannot be maintained. 15. It is also to be observed that the incident leading to recovery and seizure of salt and sugar took place as far back as in the year 1983 and, thus, obviously the case has become too old. The appellant has already suffered lots of hardships by running to courts for so many years. This factor is also be reckoned with while disposing of the case. 16. in view of what has been stated and observed in the preceding paragraphs it is to be held that the prosecution could not bring home the charge levelled against the appellant beyond reasonable doubt. Accordingly, the impugned judgment and order of conviction and sentence passed against the appellant cannot be maintained. 17. In the result, the appeal is allowed and the judgment and order of conviction and sentence passed against the appellant is set-aside. The appellant stands acquitted and discharged from the liability of his bail-bond and set at liberty.