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2002 DIGILAW 1424 (PNJ)

Sham Sunder Pal v. State Of Punjab

2002-12-20

VINEY MITTAL

body2002
Judgment Viney Mittal, J. 1. The present appeal was filed through his counsel Shri Jasbir Singh, Advocate (since elevated as Honble Judge of this Court). Shri K.S. Cheema, Advocate has very graciously accepted to act as Amicus Curiae for the appellant and to argue his case. The gesture shown by Shri K.S. Cheema is highly appreciable. 2. In the present appeal, the appellant Sham Sunder Paul has challenged the judgment dated November 20, 1989 passed by the Special Judge, Hoshiarpur whereby the appellant has been convicted udner Clause 19(i)(a) of the Fertilizer Control Order, 1985 issued udner section 3 of the Essential Commodities Act, 1955 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- . Indefault of the payment of fine, the appellant has been ordered to further undergo rigorous imprisonment for two months. 3. As per the prosecution version, on December 12, 1986, Agricultural Inspector Harjit Singh along with one Jaswant Singh, Agricultural Inspector and Uttam Chand, Beldar went to village Sham Chaurasi. They visited the shop of M/s. Ram Parkash and Sons where Suresh Kumar proprietor of the aforesaid firm was present. After a notice to the aforesaid Suresh Kumar, the aforesaid Agricultural Inspector took a sample of fertilizer of Neel Kamal Brand lying at his shop. Three separate samples from three different bags of the aforesaid fertilizer were taken. The samples after mixing were put in spearte polythene bags. The samples were ultimately sent for testing. The same were found to be sub-standard. As per the prosecution version, the aforesaid fertilizer of Neel Kamal Brand was being manufactured by Modem Agro Chemical Industries Private Limited, Alawlpur, District Jalandhar. Since the aforesaid samples were taken from the sealed bags, therefore, the manufacturer was found to be liable for production of sub-standard feritilizer. The present appellant at the relevant time was alleged to be working as plant incharge of the aforesaid factory and, therefore, was found to be responsible for the compliance of the provisions of Fertilizer Control Order, 1985. Accordingly, the case was registered against him. A formal FIR Ex.PM/1 was recorded. The appellant was arrested and after investigation, challan was presented. 4. Accordingly, the case was registered against him. A formal FIR Ex.PM/1 was recorded. The appellant was arrested and after investigation, challan was presented. 4. The prosecution examined PW1 Bhupinder Singh Incharge Fertilizer Controller Punjab Ludhiana, PW2 Bakhshish Singh Agricultural Sub Inspector Hoshiarpur, PW3 Jasbir Singh Agricultural Inspector, PW4 Suresh Kumar, PW5 Harjit Singh Agricultural Inspector, PW6 Jaswant Singh Sangha Agricultural Officer, PW7 Bakhshish Singh Saini Chief Agricultural Officer (retired), PW8 Pushpinder Singh SHO, PW9 Kamaljit Singh, PW10 Savinder Singh Pilia Agricultural Inspector, PW11 Ajit Singh, PW 12 Hardev Singh and PW 13 Kashmir Singh to prove its version. 5. After examining the entire prosecution evidence and considering the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, the learned Special Judge found that the prosecution version stood duly proved and, thus, found that the charge against the appellant with regard to the violation of the provisions of Clause 19(i)(a) of the Fertilizer Control Order, 1985 for manufacturing non-standard fertilizer by M/s. Modem Agro Chemical Industries Private Limited, Alwalpur stood proved. Thus, the appellant was found to have committed an offence punishable under Section 7 of the Essential Commodities act. Accordingly, the appellant was convicted and sentenced as aforesaid. 6. The appellant has now filed the present appeal. I have heard shri K.S. Cheema, the learned counsel appearing as Amicus Curiae for the appellant, and with his assistance have also gone through the record. 7. The learned counsel appearing for the appellant has argued that the prosecution has failed to adduce proper link evidence and, therefore, the possibility of tampering with the sample cannot be ruled out. It is maintained by Shri Cheema that Agricultural Inspector Harjit Singh has handed over the sample to Jasbir Singh with seals intact on December 12, 1986. The aforesaid sample has been handed over by Bakhshish singh, Agricultural Sub Inspector to Jaswant Singh on December 15, 1986. According to the learned counsel, Jaswant Singh who had received the sample, had not been examined by the prosecution. In this view of the matter, it is submitted by the learned counsel that link evidence was missing. However, Bhupinder Singh Analyst who has been examined as PW 1 has deposed that the receipt has been given by Jaswant Singh Fertilizer Inspector for the receipt of the sample working in his laboratory to Bakhshish Singh. In this view of the matter, it is submitted by the learned counsel that link evidence was missing. However, Bhupinder Singh Analyst who has been examined as PW 1 has deposed that the receipt has been given by Jaswant Singh Fertilizer Inspector for the receipt of the sample working in his laboratory to Bakhshish Singh. It has further been stated by the aforesaid witness that at the time of analyses he found the seals of the sample intact. In this view of the matter, it is apparent that the link evidence in the case was complete. 8. The learned counsel has further argued that no independent witness has been joined by the party at the time of taking of sample. Even this argument raised by the learned counsel is without any merit because the sample was taken from the premises in the presence of many persons. 9. All the aforesaid persons constituting the party and Suresh Kumar proprietor of the firm have duly supported the prosecution version. In this view to the matter, there is no scope for any doubt left with regard to authenticity of the preosecution version. Shri Cheema has further submitted that the mandatory provisions of the Fertilizer Control Order were not observed by the raiding party. However,t here is nothing on record to show that the raiding party had not fully observed the provisions of the Fertilizer Control Order. Nothing has been pointed out by the learned counsel that any prejudice whatsoever has been caused to the appellant. 10. Under these circumstances, the only irresistible conclusion which can be reached after the appreciation of entire prosecution evidence is that the prosecution has been able to prove the case against the appellant beyond all reasonable doubt. Thus, the conviction of the appellant as recorded by the learned Special Judge, Hoshiarpur vide order dated November 20,1989 cannot be found to be faulty. 11. Faced with this difficulty, the learned counsel for the appellant has submitted that the appellant was merely an employee of the aforesaid manufacturer and, as such, he was a poor person. It has further been submitted by Shri Cheema that the appellant has already suffered the agony of a long and protracted criminal proceedings. Under these circumstances, it is prayed that the benefit of probation be granted to him. 12. The sample of fertilizer as aforesaid has been taken on December 12, 1986. It has further been submitted by Shri Cheema that the appellant has already suffered the agony of a long and protracted criminal proceedings. Under these circumstances, it is prayed that the benefit of probation be granted to him. 12. The sample of fertilizer as aforesaid has been taken on December 12, 1986. The appellant, of course, is only an employee of the aforesaid manufacturer. The conviction was recorded by the learned Special Judge, Hoshiarpur on November 20, 1989. The present appeal has already remained pending in this Court for a period of almost 13 years. Although, the offence under the Essential Commodities Act carries a minimum sentence, but as has held by this Court in 2001 (2) Chandigarh Criminal Cases (HC) 54 : [2001(2) All India Criminal Law Reporter 39 (Pb. & Hry.)] titled Jog Dhian v. State of Haryana, that even in a case where minimum sentence has been prescribed, he benefit of probation contained in the Probation of Offender Act 1961 can still be granted. A similar view was also taken by this Court in Cr1. Revision No. 637 of 1989 decided on November 13, 2002. In these circumstances, I deem it appropriate to release the petitioner on probation. 13. Accordingly, the petitioner shall be released on probation on his furnishing personal bond of Rs. 10,000/- alongwith a surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Hoshiarpur. The petitioner shall also undertake for maintenance of good behaviour and also to the effect that he shall receive the remaining sentence as and when called upon to do so. 14. With the aforesaid observations and modification the aforesaid criminal appeal stands disposed of.