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Himachal Pradesh High Court · body

2003 DIGILAW 116 (HP)

GHANSHAM DASS v. STATE OF H. P.

2003-05-23

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This appeal is directed against the judgment of conviction, recorded by the learned Special Judge, Solan, in Case No. l-S/7 of 1994 dated 21.10.1997, whereby respondents Ghansham Dass and Suresh Kumar Sood, hereinafter referred to as A-l and A-2 respectively, were convicted for the offences punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1995 and Section 420 of the Indian Penal Code. Both the accused have been sentenced to suffer rigorous imprisonment for one year each for the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act and pay a fine of Rs. 5,000/- each. In case of default in the payment of fine the accused are to suffer imprisonment for two months each. Both of them have also been sentenced to suffer imprisonment for six months each and pay fine of Rs. 3,000/- each for the offence punishable under Section 420 of the Indian Penal Code. In case of default in the payment of fine the accused are to undergo further imprisonment for two months. 2. Prosecution case appears to be : A-l is the owner of a Gas Agency, named and styled, M/s. Garg Gas Service. A-2 is the Manager of this Agency. It was the case of the prosecution that in the year 1993-94 accused A-l and A-2 released Gas Connections to various persons, named below, charging from all of them Rs. 2200/- to Rs. 2500/-, against chargeable amount of Rs. 500/-, as security. They were also accused of not maintaining proper accounts of the daily purchase, sale and storage of LPG at the business premises thereby contravened Regulations No. 8 and 9 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993, hereinafter referred to as "Regulations" issued under Section 3 of the Essential Commodities Act, 1955. 3. A-l, it appears was allotted a Gas Agency by the Hindustan Petroleum Corporation Limited for Kasauli and Dharampur in the year 1993-94 and appointed dealer as such. A-2 was employed as Manager by A-l. The Government had fixed Rs. 500/- as refundable security for the LPG cylinder and regulator. The accused while releasing new gas connection would charge more amount from the consumers than what was fixed. Such connections were released to them in the name of the persons other than the consumers. A-2 was employed as Manager by A-l. The Government had fixed Rs. 500/- as refundable security for the LPG cylinder and regulator. The accused while releasing new gas connection would charge more amount from the consumers than what was fixed. Such connections were released to them in the name of the persons other than the consumers. The persons, from whom the amount was charged in excess of the fixed amount are : Sr. No Name of Person Amount charged Receipt issued 1. Vijay Kumar Rs. 2,200/- Rs. 500/- consumer No. 0696792 dt. 7.7.1993 issued in the name of Parnam Kumar. 2. Rakesh Kumar Rs. 2,350/- Rs. 500/- in January 1994. 3. Raj Kumar Gupta Rs. 2,200/- Rs. 500/- vide Consumer No. 504582 dt. 7.7.93 issued in the name of Smt. Neena of village Anech. 4. Naresh Kumar Rs. 2,300/- Rs. 500/- vide consumer No. 505017 dt. 24.7.93 in favour of Suneel Sharma. 5. Inder Dutt Rs. 2,400/- Rs. 500/- vide consumer No. 504512 dt. 28.1.94 in the name of Sh. Sham Lal 6. Kamlesh Kumari Rs. 2,400/- Rs. 500/- vide consumer No. 504817 dt. 11.3.93 in the name of Sh. Krishan Seheal. 7. Dalip Singh Rs. 2,300/- Rs. 500/- vide consumer No. 505093 dt. 15.3.92 in the name of Sh. Tulsi Ram. 8. Bimla Devi Rs. 2,200/- Rs. 500/- vide consumer No. 504552 dt. 7.7.1993 in the name of Sh. Raj Pal. 9. Leela Devi Rs. 2,400/- Rs. 500/- vide consumer No. 505230 dt. 13.8.93 in the name of Smt. Bhagwati Devi. 10. Karan Singh Rs. 2,500/- Rs. 500/- vide consumer No. 505094 dt. 27.7!93 in the name of Sh. Ajit Singh. 11. Bhagwanti Devi Rs. 2,500/- Connection not given. 12. Sukh Dev Sharma Rs. 2,405/- Rs. 500/- vide consumer No. 504859 dt. 13.7.93 in the name of Shri Lal Singh. 13. Dhani Ram Rs. 2,250/- Rs. 500/- vide consumer No. 505311 dt. 2.9.93. 14. Chain Singh Rs. 2,300/- Rs. 500/- vide consumer No. 504855 dt. 13.7.93 in the name of Sh. T. Singh. It was further case of the prosecution that the accused did not maintain proper accounts of the daily sale, purchase and storage of LPG in their business concern and thereby infringed Rules of the LPG Regulations. 4. Learned trial Judge, on appreciation of the evidence on record, concluded that though the security for the new connection for gas cylinder was Rs. 450/- and for regulator Rs. 4. Learned trial Judge, on appreciation of the evidence on record, concluded that though the security for the new connection for gas cylinder was Rs. 450/- and for regulator Rs. 50/-, in all Rs. 500/-, yet the accused, from the persons named in the preceding para, charged the amount in excess of this fixed amount and issued connections in the name of persons other than those who paid the amount to the accused. Learned trial Judge also concluded that the accused cheated the customers by issuing them receipts in the name of other persons and promising them that such receipts shall be later on corrected in their name and thereby committed an offence punishable under Section 420 of the Indian Penal Code. Aggrieved by the conviction, the accused are in this appeal. 5. I have heard Mr. Ramakant Sharma, learned Counsel for the appellants and Mr. Ashok Chaudhary, learned Additional Advocate General and Special Public Prosecutor for the respondent-State. I have also been taken through the record. 6. Mr. Sharma submits that no offence, under the Essential Commodities Act, can be said to have been committed by the accused nor any violation of the Regulations has taken place. 7. The Government of India in the Ministry of Petroleum and Natural Gas issued a notification on 3rd August, 1993 promulgating an order viz "Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993". Clause (2) of Regulation 3 provides that no distributor of a Government Oil Company shall supply liquefied petroleum gas filled in cylinders to any person unless he holds a valid authorisation from the Government Oil Company. Clause (a) of Regulation 8 provides for procurement, storage and sale of liquefied petroleum gas by the distributor under the public distribution system. It stipulates that no distributor appointed under the public distribution system having stock of liquefied petroleum gas at the business premises, including storage point, shall, unless otherwise directed by a Government Oil Company, refuse to sell on any working day, during working hours, to the consumer whose name is registered with the distributor according to the chronology of placing of orders. Sub clause (d) of this Regulation reads : "No distributor appointed under the public distribution system shall sell liquefied petroleum gas at a price higher than that fixed by the Government Oil Company nor shall, without prior written permission of the concerned Government Oil Company, refuse to make home delivery at the address of the consumer, whose name and address is registered with the distributor". 8. It is not the case of the prosecution that accused sold LPG to any consumer or any other person at a price higher than that fixed by the Government Oil Company. Case of the prosecution is that the accused released gas connections to the consumers charging excess amount, as security, for gas cylinder and regulator than fixed by the Oil Company. Sub Clause (b) of Regulation 2 defines "Consumer" to mean a person, firm, company, institution of persons, cooperative society or organisation, whose name is registered with a distributor or with a Government Oil Company or with a parallel marketeer for supply of Liquified petroleum gas either in bulk or in cylinders. Apparent as it is this Regulation in the present case is not attracted. No consumer has complained nor it is the case of the prosecution that accused charged any of the consumer more than what was fixed for the supply of LPG in Cylinders by the Government or Oil Company. Regulation 8 in the circumstances is not violated. 9. Similarly, there is no evidence on record to show that the accused did not maintain proper registers, as contemplated under Clause (b) of Regulation 9. No witness has spoken anything on this aspect of the case. 10. This apart, the first person at Sr. No. 1 from whom allegedly an excess amount for security of the cylinder and regulator was charged by the accused is Vijay Kumar. According to the prosecution, he was charged Rs. 2,200/- against Rs. 500/- fixed for the security of cylinder and regulator. Vijay Kumar has not been examined by the prosecution. However, as detail given by the prosecution, his consumer number is shown as 0696792, which is alleged to be issued in the name of one Parnam Kumar. Perusal of Ex. P4 shows that the gas connection was issued to Sh. Parnam Kumar on payment of Rs. 500/- that is Rs. 450/- as security for cylinder and Rs, 50/- as security of regulator. Perusal of Ex. P4 shows that the gas connection was issued to Sh. Parnam Kumar on payment of Rs. 500/- that is Rs. 450/- as security for cylinder and Rs, 50/- as security of regulator. His consumer number is detailed as 04568. Parnam Kumar has also not been examined. It is not the case of the prosecution that such Parnam Kumar is non existent. Therefore, the allegation of the prosecution that Vijay Kumar was charged Rs. 2,200/-, as security for the gas cylinder and regulator against the fixed amount of Rs. 500/-, is not proved. 11. The next person is Rakesh Kumar. It is alleged that accused charged Rs. 2,350/- when gas connection was released to him in January, 1994, against the fixed amount of Rs. 500/-. 12. Rakesh Kumar has been examined as PW-3. It is the evidence of Rakesh Kumar that he purchased a gas connection from the accused, though he does not name the accused to whom he has given Rs. 2,350/ -, for which no receipt was issued. It is his evidence that he did get ultimately papers of his connection. The papers, which were received by Rakesh Kumar, have not seen the light of the day nor did he produce the receipt of Rs. 500/- though admittedly he was handed over the papers. In the cross-examination, he admits that he was given papers of his connection. Accused do not admit Rakesh Kumar to be the consumer. In the face of the evidence on record, by no stretch it can be said that accused charged any amount from Rakesh Kumar for release of any gas connection. According to Rakesh Kumar, he did purchase the cylinders but such cylinders were taken without any booking, as truck of the gas company used to bring LPG cylinders to his house. It is difficult to believe this witness particularly when he had not produced the papers of his gas connection, which he admittedly had obtained from the .accused. The prosecution has failed to establish that this witness was released gas connection by the accused or their gas agency. 13. The next person in the list is Raj Kumar Gupta. It is the case of the prosecution that accused charged Rs. 2,200/- from him, though receipt was issued for Rs. 500/- in the name of Smt. Neena of village Anech. Raj Kumar Gupta appeared as PW-1. 13. The next person in the list is Raj Kumar Gupta. It is the case of the prosecution that accused charged Rs. 2,200/- from him, though receipt was issued for Rs. 500/- in the name of Smt. Neena of village Anech. Raj Kumar Gupta appeared as PW-1. It is his evidence that he purchased a gas connection and paid Rs. 1,400/- to A-l. He was also issued receipt of the money. The witness was declared hostile by the learned Public Prosecutor and was confronted with his affidavit which was sent to the Deputy Commissioner, Solan. It is his explanation that his signatures on the affidavit were obtained by Vijay Kumar without disclosing to him the contents of that affidavit. In the cross-examination, he admits that Vijay Kumar was earlier sanctioned a Gas Agency at Parwanoo but it was cancelled on a complaint made by A-l. It is pertinent to note that according to the prosecution receipt was issued to Raj Kumar Gupta in the name of one Smt. Neena for Rs. 500/-. There is no such evidence on record nor Smt. Neena has been examined. 14. Next is Naresh Kumar from whom accused allegedly charged Rs. 2,300/- though receipt of Rs. 500/- was given to him in the name of Suneel Sharma, as security for cylinder and regulator Naresh Kumar has been examined as PW-5. According to this witness, he had booked a LPG connection in the year 1993 and the same was released to him within 15 days of the booking. He paid Rs. 2,350/-. It is his evidence that the gas connection which was given to him was in the name of Sunil Kumar. When asked he was unable to give registration number of his booking. In his own words, "I do not know what was the serial number of my booking." It is further his evidence that he gave money to a person who was sitting at the premises of the Gas Agency. He is categorical that he did not give any money to any of the accused. In his own words, "I did not hand over the money to the accused or anyone of them". He admitted that he used to get the refill of the cylinder from one Rajinder Kumar. The record shows that the connection was released in the name of Sunil Sharma in terms of Ex. In his own words, "I did not hand over the money to the accused or anyone of them". He admitted that he used to get the refill of the cylinder from one Rajinder Kumar. The record shows that the connection was released in the name of Sunil Sharma in terms of Ex. P5 which also bears signatures of Sunil Sharma. In the subscription voucher, only Rs. 500/- were charged, as security for the cylinder and regulator. The consumer number in the subscription voucher is given as 505017. The prosecution did not take trouble to examine Sunil Sharma to show that such connection was not released to him. In the circumstances, it is not proved that Naresh Kumar was charged Rs. 2,300/ - for the release of gas connection in the name of Sunil Sharma. 15. Next is Inder Dutt. According to the prosecution case, he was charged Rs. 2,400/- for release of the gas connection for which receipt Ex. P4 was given to him in the name of one Shyam Lai. Shyam Lai has not been examined in this case. Inder Dutt, appearing as PW-6, stated that against payment of Rs. 2,400/- he not only was given gas connection including cylinder and regulator, but also a gas stove. It is his evidence that the papers which were given by the Gas Agency were in the name of one Sham Lal resident of Kasauli. When cross-examined he failed to give number of his booking. He was unable to say who gave him the papers of the LPG connection. In his own words "I do not know who had given me the papers of the LPG connection". He admitted that he never got refill of the gas from the gas agency. He had been getting the same from various persons at Kumar hatti including Vijay Kumar. It is surprising that though Inder Dutt was given papers of the gas connection but those papers were not produced in the court. By no stretch, it can be said that Inder Dutt was released gas connection on payment of Rs. 2,400/-, as security for the gas connection and regulator against the fixed amount of Rs. 500/-, for which receipt was given in the name of one Sham Lai. The prosecution has failed to prove this factum. 16. Next is Smt. Kamlesh Kumari. According to the prosecution case, she was charged Rs. 2,400/-, as security for the gas connection and regulator against the fixed amount of Rs. 500/-, for which receipt was given in the name of one Sham Lai. The prosecution has failed to prove this factum. 16. Next is Smt. Kamlesh Kumari. According to the prosecution case, she was charged Rs. 2,400/- for the release of the gas connection and a receipt was issued to her in the name of Krishan Sehgal. Kamlesh Kumari, who appeared as PW-7, stated that she was given a LPG cylinder, regulator and a gas stove. She also maintains that the connection released to her was in the name of one Krishan Sehgal and she was told that the papers would be changed in her name at a later date. She has produced a copy of the subscription voucher, for consumer number 504817, which is in the name of Krishan Sehgal and is signed by Krishan Sehgal, though Kamlesh Kumari later on, it appears has also appended her signatures. This document evidenced the receipt of Rs. 500/-. Kamlesh Kumari later admits that she was in fact given connection, vide consumer number 504967 Ex. P3. I have perused this document. This connection was released to Kamlesh Kumari r/o Suki Johri, Dharampur, and was charged Rs. 500/ - as security for cylinder and regulator. This voucher is signed by Kamlesh Kumari. Kamlesh Kumari herself has admitted that she also purchased a gas stove in the amount given. The price of gas stove is not given by her. In the circumstances, it cannot be said that accused charged excess amount from Kamlesh Kumari, as security for LPG cylinder and regulator. 17. Dalip Singh is next person. He is supposed to have been charged Rs. 2,300/- for the release of the gas connection in the name of Tulsi Ram against receipt of Rs. 500/- as security for the LPG cylinder and regulator. Dalip Singh appeared as PW-9. It is his evidence that he obtained a gas connection on payment of Rs. 2,300/- and he was given one LPG cylinder and one regulator. He was also given subscription voucher in the name of Tulsi Ram. He protested but he was told that the papers would be changed at a later date. The connection, which was released in the name of Tulsi Ram is Ex. P8. 2,300/- and he was given one LPG cylinder and one regulator. He was also given subscription voucher in the name of Tulsi Ram. He protested but he was told that the papers would be changed at a later date. The connection, which was released in the name of Tulsi Ram is Ex. P8. Perusal of this document shows that this connection was released in the name of Tulsi Ram r/o Main Bazar, Dharampur and consumer number mentioned as 505093. The LPG connection was released on 27.7.1993. It is signed by Tulsi Ram. Now Dalip Singh maintains that he purchased this connection in the year 1994. Defence of the accused is that this gas connection belongs to Tulsi Ram who was working at the time in Harding Sanitorium, Dharampur. Surprisingly, one Tulsi Ram was examined by the prosecution, who appeared as PW-11 and stated that he was serving with PA. Pinions Watch Factory at Dharampur and had not purchased any gas connection from the accused and that he signs in English. The prosecution did not examine Tulsi Ram, whose name and address is given in subscription voucher Ex. P8. In the circumstances, the prosecution has failed, to prove that Dalip Singh was charged Rs. 2,300/ - as security for the cylinder and regulator instead of Rs. 500/- as fixed by the Government Oil Company. 18. Next are Bimla Devi, Leela Devi, Karan Singh, Bhagwanti Devi and Sukh Dev Sharma. It is the case of the prosecution that Bimla Devi, Leela Devi, Karan Singh, Bhagwanti Devi and Sukh Dev Sharma were charged Rs. 2,200/-, Rs. 2,400/-, Rs. 2,500/-, Rs. 2,500/- and Rs. 2,405/- respectively against receipts issued to them for Rs. 500/-, as security for cylinder and regulator. None of them has been examined by the prosecution and, therefore, the prosecution has failed to prove that excess amount for security was charged from these persons. 19. Next is Dhani Ram, who was examined as PW-2. According to him, he paid Rs. 2,250/- to A-l. It is his case that he was not given any receipt though the connection was given to him in his own name. He complains that his address was given as C/o Charan Dass, Cantt. Board, Subathu. He admits in his cross-examination that he lodged a complaint in terms of Ex. PB which was prepared by Vijay Kumar. 2,250/- to A-l. It is his case that he was not given any receipt though the connection was given to him in his own name. He complains that his address was given as C/o Charan Dass, Cantt. Board, Subathu. He admits in his cross-examination that he lodged a complaint in terms of Ex. PB which was prepared by Vijay Kumar. He though admits that one connection was released to him on the recommendation of the then Member of Parliament for which he was not overcharged. It is his evidence that against payment of Rs. 2,250/- a receipt was given to him for Rs. 500/ -. He admits that he did not make any complaint for having been overcharged to any authority. The witness has not produced the receipt of Rs. 500/- which was given to him by the accused. In the circumstances, it is difficult to rely on the evidence of this witness to prove that the accused charged from him Rs. 2,250/- for the LPG connection. 20. Last person is Chain Singh. It is the case of the prosecution that he was charged Rs. 2,300/- and connection released to him was in the name of one T. Singh. T. Singh has not been examined by the prosecution to show that no such connection was released to him by the Agency. The connection, which was released in the name of T. Singh, is placed on record as Ex. P7. In the subscription voucher (Ex. P7), the consumer number of T. Singh is mentioned as 504855 and the same is signed by T. Singh. This further shows that Rs. 500/- were charged from T. Singh. Similarly, Ex. PW-8/A is also signed by T. Singh. In the cross-examination, Chain Singh could not give his booking number. In the cross-examination he admits that he used to get refill of his cylinder from the shop of one Ram Kumar, who is father of Vijay Kumar. Vijay Kumar, admittedly, was allotted a gas agency which was cancelled at the instance of A-l. The witness did not state to whom he had paid Rs. 2,300/-. What he stated, "I had purchased LPG connection in the year 1993 against the payment of Rs. 2,300/-. I had received cylinder, regulator and Chulla". The witness does not disclose the price of each individual item against the payment of Rs. 2,300/-. 2,300/-. What he stated, "I had purchased LPG connection in the year 1993 against the payment of Rs. 2,300/-. I had received cylinder, regulator and Chulla". The witness does not disclose the price of each individual item against the payment of Rs. 2,300/-. He was also unable to say what was the price of gas stove purchased by him. In the circumstances, the prosecution allegation that Rs. 2,300/- were received by the accused towards security of cylinder and regulator is not proved. 21. Shrikant Baldi (PW-4), the then District Magistrate, admitted in his cross-examination that Vijay Kumar could be one of the persons who ad come to his office to hand over the affidavits of various persons making grievance of overcharging. He also stated that Smt. Bhagwanti Devi though earlier had given an affidavit subsequently represented to him that the affidavit filed by her was forcibly obtained by one Narata Ram and Vijay Kumar through her son. Such an application made by Smt. Bhagwanti Devi is Ex. DA. 22. This part, the Investigating Officer (PW-20), in his cross-examination admitted that he did not ascertain the price of the gas stoves which were given to the consumers, while connections were released, after obtaining the security. He also submitted that gas connection is booked on the basis of a ration card and a written application for the purpose along with an affidavit. According to him, when booking matures for the release of gas connection, an intimation is sent to the applicant by post. 23. It may be noticed that defence of the accused from the beginning is that a false case was made against them at the instance of Vijay Kumar, who was allotted a Gas Agency but the same was cancelled before it became operational on a complaint lodged by accused A-l. Some persons were carrying business of sale and purchase of gas connections in connivance with the consumers. Accused examined Sh. Mohit Dhawan, Sales Officer, Hindustan Petroleum, as DW-3. It is his evidence that the Company through its officers makes regular checking of the Gas Agencies and the prices charged by them as per the Rules of the Company. Garg Gas Agency was under his charge and no complaint was ever received for overcharging or wrong issuing of any gas connection. Mohit Dhawan, Sales Officer, Hindustan Petroleum, as DW-3. It is his evidence that the Company through its officers makes regular checking of the Gas Agencies and the prices charged by them as per the Rules of the Company. Garg Gas Agency was under his charge and no complaint was ever received for overcharging or wrong issuing of any gas connection. It is his further evidence that the consumer, whose registration number matures for allotment of the gas connection, is informed by post under the postal certificate and connection is always issued to such consumer under signatures. After allotment of the gas connection, the Company has no control on the consumer if he hands over the cylinder and papers to other person(s). If any complaint is received, such complaint is enquired into. 24. In view of the evidence, as discussed above, false implication of the accused at the instance of Vijay Kumar, as pleaded by the accused, cannot be entirely ruled out. 25. Taking into consideration totality of the evidence as discussed above, the prosecution in my view failed to bring home the charge against the accused either under the Essential Commodities Act or under Section 420 of the Indian Penal Code. At the best it may raise suspicion but suspicion can never take the place of proof. 26. No other point is urged before me. 27. In result, I allow the appeal. Conviction of the accused A-l and A-2, for offences punishable under Section 3 read with Section 7 of the Essential Commodities Act, and under Section 420 of the Indian Penal Code, is set aside. The accused stand acquitted. Their bail bonds are discharged. The fine, if deposited, by the accused shall be returned to them. Appeal allowed.