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2002 DIGILAW 582 (JHR)

Bansi Sahu v. State Of Bihar

2002-05-09

VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been directed by the appellants against the impugned judgment dated 24.1.1996 passed in Mandar P.S. Case No. 6/1992/T.R. No. 72/96 by Sri Sarju Prasad, Special Judge, E.C. Act, Ranchi whereby both the appellants were found guilty and convicted for the offence punishable under Section 7 of E.C. Act for the contravention of Bihar Trade Article (Licences Unification) Order, 1984 and they were sentenced to undergo R.I. for one year each. 2. The prosecution case has arisen on the basis of the written report of informant Ajit Sankar, Circle Officer, Mandar lodged before the O.C., Mandar on 21.1.1992 at 17.30 hrs. regarding the occurrence of that very day which is said to have taken place at 2 Oclock in the day at Mandar Bazar. The prosecution case is that the informant along with S.I. Shiv Prasad Singh as per direction of the D.C. and S.D.M., Sadar, Ranchi raided Bombay Market at about 2 Oclock in the day and he found appellant Bansi Sahu, a licensed kerosene oil hawker, in possession of 200 ltrs. of kerosene oil in 5 jerkin of 40 Hrs. capacity and he was selling kerosene oil @ Rs. 8/- per litre as against the Government fixed rate of Rs. 2.74 per ltr. of kerosene oil. He has also found appellant Rafique Ansari in possession of 35 ltrs. of kerosene oil and he was also selling kerosene oil @ Rs. 8/- per litre though he was not a licensee for the sale of kerosene oil. The aforesaid kerosene oil was seized and seizure list was prepared. The prosecution case further is that as per direction of the higher authorities and in view of the need of the people the seized kerosene oil was distributed to the people in the said market @1/2 ltr. per person and a case under Section 7 of the E.C. Act was registered against the appellants. 3. The substance of the accusation was explained to the appellants to which they have pleaded not guilty and claimed to be tried. 4. Four witnesses were examined on behalf of prosecution to substantiate the accusation against the appellants. PW 4, Ajit Sankar is the informant and PW 1, Sheo Ratan Giri, PW 2, Bhola Nath Tiwari and PW 3, Sanjoy Kumar are the witnesses on the seizure and Ext. 4. Four witnesses were examined on behalf of prosecution to substantiate the accusation against the appellants. PW 4, Ajit Sankar is the informant and PW 1, Sheo Ratan Giri, PW 2, Bhola Nath Tiwari and PW 3, Sanjoy Kumar are the witnesses on the seizure and Ext. 1 series and 2 series are the signatures of the witnesses of the seizure on the seizure list. Ext. 3 is the written report of the informant. 5. In view of the evidence oral and documentary on the record the learned Court below found the appellants guilty for the offence punishable under Section 7 of the E.C. Act for the contravention of Bihar Trade Article (Licences Unification) Order, 1984 and convicted the appellants and sentenced them to undergo R.I. for one year each. 6. Now the question for determination is as to whether there is any illegality in the impugned judgment requiring interference therein. 7. It has been submitted by the learned counsel for the appellants that there is no legal evidence at all on the record to establish the fact that the appellants were selling kerosene oil in the Bombay Market at Rs. 8/- per litre rather the evidence on the record is that till the time of seizure no kerosene oil was at all sold by the appellants and there is also no evidence of any independent witness to show that any person in the Market has purchased kerosene oil from the appellants @ Rs. 8/- per litre. It has also been submitted that as per prosecution case appellant Bansi Sahu was possessed of 200 ltrs. of kerosene oil in 5 jerkin of 40 ltrs. capacity which is alleged to have been seized from his lawful possession as he is a licensee in respect thereof for its sale and as such question of any unlawful sale in black market @ Rs. 8/-per litre does not arise at all as by then he has not at all sold even a drop of the kerosene oil. It has also been submitted that appellant Rafique Ansari was not at all dealing in kerosene oil in the said Market and alleged seizure has not at all been supported by any independent witness. It has also been submitted that solitary testimony of PW 4, the informant, uncorroborated in the material particulars by any of the witnesses of the seizure list is fit to be discarded. It has also been submitted that solitary testimony of PW 4, the informant, uncorroborated in the material particulars by any of the witnesses of the seizure list is fit to be discarded. It has also been submitted that alleged seizure of the kerosene oil from the appellants is illegal and not substantiated on the basis of the evidence of the alleged seizure witnesses as none of the seizure witness had supported the factum of seizure, as alleged. Lastly, it has been submitted that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred in finding the appellants guilty. 8. Learned APP has submitted that appellant Bansi Sahu was selling kerosene oil at Rs. 8/- per litre as against Government prescribed rate of Rs. 2.74 per litre and thereby he has violated the terms of the licence granted to him and appellant Rafique Ansari was found to be in possession of 35 ltrs. of kerosene oil which is in contravention of the limit of possession of kerosene oil by an Individual which is to the extent of 20 ltrs. and he was also selling kerosene oil @ Rs. 8/- per litre in the black market. 9. It will admit of no doubt that Circle Officer stands vested with the powers of entry, search and seizure under Clause 30 of any place or premises, vehicle or vessel in which he has reason to believe that any contravention of provisions of this order has been, is being or is about to be made. No dealer shall after the commencement of Bihar Trade Article (Licences Unification) Order (hereinafter referred to as the Order) carry on business of purchase, sale or storage for sale of any trade article mentioned in Schedule I except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority under the provisions of this Order provided that no licence shall be required for a dealer who stores for sale at any one time the trade articles, in quantities not exceeding the limits as may be prescribed by the State Government with prior concurrence of the Central Government for any trade article from time to time. Kerosene oil as a trade article stands mentioned at Sl. No. 2 of part E (other articles) of Schedule I of this Order. Kerosene oil as a trade article stands mentioned at Sl. No. 2 of part E (other articles) of Schedule I of this Order. As per GSR 47, dated 17.10.1985 a licensed hawker has been authorised to store at one time upto 1000 ltrs. of kerosene oil whereas an individual is authorised to store upto 20 ltrs. of kerosene oil for his own use. As per terms of the licence the licensed hawker has to sell kerosene oil at the prescribed rate as per the notification of the State Government and at the relevant time the prescribed rate of kerosene oil was Rs. 2.74 paise per litre. 10. Let us now take up the case of appellant Bansi Sahu who is admittedly a licensed hawker of kerosene oil. According to the prosecution case 200 ltrs. of kerosene oil is alleged to have been recovered as a result of the raid by PW 4, Ajit Sankar, Circle Officer, Mandar. The recovery of 200 ltrs. of kerosene oil from the possession of appellant Bansi Sahu cannot be termed as in contravention of the provisions of the said Order as the possession of appellant Bansi Sahu in respect of 200 ltrs. is within the permissible limit of storage. Therefore, the possession of appellant Bansi Sahu over 200 ltrs. of kerosene oil is not unlawful. The allegation is that appellant Bansi Sahu was selling kerosene oil @ Rs. 8/- per litre as against the Government prescribed rate of Rs. 2.74 per litre. PW 4 has deposed in para 1 of his evidence that he has seen appellant Bansi Sahu selling kerosene oil @ Rs. 8/- per litre. PW 1 in para 5 has deposed that kerosene oil is usually sold in the Mandar Bazar after 2 Oclock in the day. The seizure in this case from the shop of appellant Bansi Sahu is said to have been made at 2 Oclock on the date of occurrence. It, therefore, appears that till the time of seizure there was no sale at all of kerosene oil by the appellant Bansi Sahu. Further more, as per prosecution case 200 ltrs. of kerosene oil in 5 jerkin of 40 ltrs. It, therefore, appears that till the time of seizure there was no sale at all of kerosene oil by the appellant Bansi Sahu. Further more, as per prosecution case 200 ltrs. of kerosene oil in 5 jerkin of 40 ltrs. capacity have been recovered and seized by the Circle Officer in presence of the seizure witnesses who have turned hostile in the case and in this view of the matter appellant Bansi Sahu has sold not a single drop of kerosene oil by that time. Further more, PW 4 has deposed that someone among the persons assembled in the market had told him that appellant Bansi Sahu is selling kerosene oil at Rs. 8/- per litre. This part of the evidence of PW 4 is a hearsay evidence. There is no other corroborative evidence on the record to show and establish the fact that appellant Bansi Sahu was selling kerosene oil or has sold kerosene oil at the time of occurrence @ Rs. 8/- per litre as against the prescribed Government rate of Rs. 2.74 per litre to any person. No purchaser of kerosene oil from appellant Bansi Sahu @ Rs. 8/- per litre has taken oath in support of prosecution case. Even the witnesses of seizure i.e., PWs 1. 2 and 3 in their evidence on oath have not at all whispered that appellant Bansi Sahu was selling kerosene oil @ Rs. 8/- per litre as against the Government prescribed rate in contravention of the terms of the licence. Viewed thus, the solitary testimony of PW 4 uncorroborated in material particulars as discussed above does not at all substantiate the prosecution case. In this view of the matter, the evidence of PW 4 is, therefore, fit to be brushed aside. The learned Court below has not meticulously scanned the evidence on the record in the right perspective and he has therefore erred in finding the appellant Bansi Sahu guilty. 11. The case of appellant Rafique Ansari is on different footing. The allegation against appellant Rafique Ansari is that 37 ltrs. of kerosene oil in a jerkin was recovered from his possession in the Bombay Bazar. Appellant Rafique Ansari is not a licenced dealer or licenced hawker of kerosene oil. The allegation against him is that he was also selling kerosene oil @ Rs. 8/- per litre as against the prescribed rate of Rs. 2.74 paise. of kerosene oil in a jerkin was recovered from his possession in the Bombay Bazar. Appellant Rafique Ansari is not a licenced dealer or licenced hawker of kerosene oil. The allegation against him is that he was also selling kerosene oil @ Rs. 8/- per litre as against the prescribed rate of Rs. 2.74 paise. The seizure list is Ext. 4/1 regarding the alleged recovery and seizure of 37 ltrs. of kerosene oil from the possession of appellant Rafique Ansari. The seizure list contains the signature of PW 3, Sanjoy Kumar Pauranik and PW 1 Sheo Ratan Giri as witnesses thereon regarding the factum of alleged seizure. PW 1 Sheo Ratan Giri has deposed that he does not identify appellant Rafique Ansari and he has never seen him earlier. In para 3 he has deposed that no recovery of 37 ltrs. of kerosene oil has been made in his presence from appellant Rafique Ansari. In the concluding portion of his deposition he has stated that he has signed the seizure list at the instance of PW 4 and the local police. Similar is the evidence of PW 3, the other witness of the alleged seizure. It, therefore, appears that the witnesses of seizure do not at all support and substantiate the factum of alleged recovery and seizure of 37 ltrs. of kerosene oil from the possession of appellant Rafique Ansari. Therefore, the very question of recovery of 37 ltrs. of kerosene oil from the possession of appellant Rafique Ansari becomes doubtful and it does not stand substantiated by any legal and reliable evidence on the record. Further more, there is no iota of evidence on the record to show that appellant Rafique Ansari has also sold kerosene oil @ Rs. 8/- per litre to any person in the Mandar Market. No purchaser of kerosene oil from appellant Rafique Ansari has come forward to depose that he has purchased kerosene oil @ Rs. 8/- from appellant Rafique Ansari. Therefore, the solitary testimony of PW 4 regarding sale of kerosene oil @ Rs. 8 per litre, which is hearsay, is fit to be discarded. The learned Court below has also not meticulously considered the evidence on the record in right perspective and he has erred in finding the appellant Rafique Ansari guilty to the accusation levelled against him. 12. Therefore, the solitary testimony of PW 4 regarding sale of kerosene oil @ Rs. 8 per litre, which is hearsay, is fit to be discarded. The learned Court below has also not meticulously considered the evidence on the record in right perspective and he has erred in finding the appellant Rafique Ansari guilty to the accusation levelled against him. 12. After considering all the facts, circumstances and materials on the record it is crystal clear that prosecution has utterly failed to substantiate the allegation levelled against the appellants by any legal and reliable evidence on the record. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. Both the appellants are found not guilty and they are acquitted and they are also discharged from the liability of their bail bonds.