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2003 DIGILAW 1468 (PNJ)

State of Haryana v. Mahender Kumar

2003-10-22

KIRAN ANAND LALL

body2003
ORDER Kiran Anand Lall, J. - The State appellant has felt aggrieved against the verdict of acquittal recorded by the learned Special Judge, Faridabad, on 12.1.1993, acquitting Mahender Kumar respondent under Section 7 of the Essential Commodities Act, 1955 (to be referred as "the Act") for having contravened the provisions of Clause 6(3) of Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988, by keeping in his possession, on 14.2.1991, three Gas Cyllinders (L.P.G. Refills) and two pressure regulators, without securing a consumer connection from an authorise distributor. 2. Briefly stated, the prosecution case, as disclosed by PW2 Ram Singh Police Inspector, who was posted in the Chief Ministers Flying Squad at Faridabad, is that on 14.2.1991, he raided the premises of M/s. Kakar Sweets, NIT, Faridabad, after associating with him other officials including S.K. Papneja, Assistant Food & Supplies Officer, Faridabad, and recovered two LPG Gas Cylinders fitted with regulators and an empty cylinder therefrom. One Ram Daini Prasad was found present in the business premises, at that time. PW2 addressed application Ex.PB to SHO P.S. Kotwali, Faridabad, for registration of a case against the proprietor of the Sweet House for contravention of the provisions contained in Clause 6(3) of Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1988, and on the basis thereof this case was registered. Investigation was taken up by ASI Ram Kishan of P.S. Kotwali, Faridabad, who took into possession two filled Gas Cylinders, Exs. P1 and P2, fitted with regulators Exs.P3 and P4, and an empty-cylinder Ex.P5 vide memo Ex.PA. 3. After completion of investigation, challan was submitted in court against the respondent. 4. After holding trial, learned Special Judge acquitted the respondent due to three flaws in the prosecution case viz. (i) Police Inspector Ram Singh was not authorised to conduct the raid, (ii) it was Ram Daini Prasad who was looking after day to day affairs of the Sweet shop and the respondent was neither present nor was he called there, and (iii) there had been violation of Sub-section (4) of Section 100 Criminal Procedure Code as two independent and respectable inhabitants of the locality were not joined in the raiding party before searching the premises. 5. At the outset, it may be mentioned that the learned Public Prosecutor did not dispute, during the course of arguments, that Inspector Ram Singh was not authorised to conduct the raid. 5. At the outset, it may be mentioned that the learned Public Prosecutor did not dispute, during the course of arguments, that Inspector Ram Singh was not authorised to conduct the raid. But, he pleaded that, in fact, it was S.K. Papneja, AFSO, and not Inspector Ram Singh, who had conducted the raid, and as S.K. Papneja was duly authorised to conduct raid, in view of Clause 7(I) of the Act, it could not be said that he raid was conducted by an unauthorised person. Learned counsel for the respondent, on the other hand, referred to the statement of PW2, Inspector Ram Singh as per which it was he who had conducted the raid, though he had associated S.K. Papneja also in the raiding party. Even as per the statement of S.K. Papneja (PW1) himself, the police party headed by Inspector Ram Singh of Chief Ministers Flying Squad, Faridabad, had conducted the raid and he (PW1) was a member of this raiding party. On the basis of such clear evidence available on record, no weight can be attached to the contention of the learned Public Prosecutor that, infact, it was S.K. Papneja AFSO (and not Ram Singh Inspector) who had conducted the raid. Learned trial Court, therefore, rightly concluded that alleged recovery of Gas Cylinders etc., effected by PW2 Inspector Ram Singh, after raiding the premises in question, was illegal. 6. Besides, none of the PWs examined by the prosecution referred to the presence of the respondent at the spot. There is also no evidence on file to indicate that he was even, later on, contacted by the investigating officer, AFSO, or, for the matter of that, by any other authority, with regard to the alleged recovery of the Gas Cylinders etc. from the premises of the Sweet shop. That being so, he was not given any opportunity to explain the availability of the Gas Cylinders etc. at the Sweet shop, or, to show if any consumer connection in respect of thereof had been secured from an authorised distributor. 7. Significantly, no action was taken against Ram Daini Prasad, who had been found present at the Sweet shop. The respondent was neither present there nor it is the prosecution case that he was contacted afterwards even, in respect of the alleged recovery of the Gas Cylinders etc. from the Sweet shop. 7. Significantly, no action was taken against Ram Daini Prasad, who had been found present at the Sweet shop. The respondent was neither present there nor it is the prosecution case that he was contacted afterwards even, in respect of the alleged recovery of the Gas Cylinders etc. from the Sweet shop. This fact had, therefore, also rightly weighed with the trial Court in acquitting him. 8. Undisputedly, no independent respectable inhabitant of the locality was joined in the raiding party before effecting search of the premises. Even no attempt was made to do so. The only explanation offered by the learned Public Prosecutor was that the AFSO was also an independent person, and as he was present in the raiding party, provisions of Sub-section (4) of Section 100 Civil Procedure Code stood duly complied with. In this connection, learned counsel for the respondent rightly pointed out that the requirement of Sub-section (4) of Section 100 Criminal Procedure Code is that two or more independent and respectable inhabitants of the locality should be joined, and in the absence of any evidence to indicate that the AFSO was inhabitant of the locality in which the premises in question were located, it cannot be said that the requirement of said provisions of law had been duly fulfilled. 9. In view of the above mentioned facts and circumstances, no lacuna can be found in the judgment under challenge. Learned trial court had rightly acquitted the respondent on account of failure of the prosecution to prove their case against him. Resultantly, the appeal shall stand dismissed. Appeal dismissed.