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2003 DIGILAW 320 (GAU)

Sohanlal Sharma v. State of Assam

2003-07-21

S.K.KAR

body2003
JUDGMENT S.K. Kar, J. 1. This is an application under Sections 397, 401 and 482 of Cr.P.C. read with Article 227 of the Constitution of India to invoke Criminal Revisional jurisdiction of this Court against the judgment and order dated 30.10.1998 passed by the learned Sessions Judge, Kamrup, in Special Case No. 2/1996 under Section 7 of the Essential Commodities Act, 1955 and convicting the petitioners to suffer S.I. for 3 months and also to pay fine Rs. 1,000 each with a default sentence. 2. Heard learned counsel appearing for the revision petitioners. None appears for the respondent. 3. The petitioners herein were owner of M/s. Maa Kali Restaurant, of Gosala Bazar, Maligaon, Guwahati, as sweet-meat shop-cum-restaurant who were found to have in their possession two domestic LPG cylinders on 27.3.95 when restaurant was inspected by Inspector of Food and Civil Supplies accompanied by Sub-Inspectors. The cylinders were seized and offence report was submitted for violation of Clause 6(1)(c) of the LPG (Regulation, Supply and Distribution) Order, 1993 for punishment as provided under Section 7 of the Essential Commodities Act, 1955. 4. The main contention of the revision petitioners are that here was no proper appreciation of evidence and that seizure of two cylinders were not according to the provision of law. That there was no proof that the seized cylinders were domestic cylinders and accordingly the finding of the trial court was not correct. It was further submitted that the independent witnesses were not procured as per mandatory provision of law under Section 100 Cr.P.C (sic). It was submitted that fact given by the prosecution story that the search, seizure and Jimma all were given at 10.00 A.M. is neither practicable nor natural which smack a case of concoction. 5. The relevant provision of law contained in The Liquefied Petroleum, Gas (Regulation and Supply and Distribution) Order, 1993, violation of which has been alleged goes as follows : "6. Possession, supply or sale of liquefied petroleum gas equipment's, - (1) No person shall - (a) * * * * * * * * (b) *** * * * (c) Possess filled or empty cylinder, gas cylinder value and pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a Government oil company or a parallel marketeer. (2) ********" The search report and seizure list, i.e., exhibits No. 1 and 2 clearly mentioned that the cylinders were found in the kitchen of the restaurant and were seized in presence of witnesses. Detailed discussions about the seizure are not needed as the defence case is a clear case of admission of a seizure with a plea that the gas cylinders are belonging to one Sekhar Dey examined in this case as D.W.1. D.W.1 deposed to prove his blue book (Ext.A). the further statement of D.W.I is that his betel-nut shop is situated at the premises of the said M/s Ma Kali Restaurant and he takes meal in the restaurant and cylinders seized by the Inspector belonged to him. During his cross-examination he stated that he is a married man having his family and he lives at a distance about 5 km from the said restaurant and the blue book which he produced is used for his family and he takes his meal in the restaurant at day time and at his home during night hours. It was suggested that he has deposed falsely which he denied. The last portion of his cross-examination is not intelligible which goes as follows : "I am not taking meal in the hotel, the domestic cylinder is not used in my hotel." During their statements under Section 313 of Cr.P.C. the petitioners/accused stated that they have nothing to say in this case and the gas cylinders were seized from another person adjacent to the hotel. Therefore, the defence stand was totally confusing and conflicting at different stages of trial. As against this there is clear evidence of seizure of the gas cylinders from the kitchen of the restaurant. The ownership of which in favour of the petitioners/accused is not in dispute. The only independent witness Jatindra Konwar has stated that at the time of seizure of the cylinders he was there, but during cross-examination he admitted that he was not present when the actual search was made in the restaurant. This statement during his cross-examination, by itself, will not belie the facts altogether which otherwise clearly say, that there was a case of seizure of gas cylinders from inside the M/s Maa Kali Restaurant as deposed by the complainant and supported by other Food Inspectors. This statement during his cross-examination, by itself, will not belie the facts altogether which otherwise clearly say, that there was a case of seizure of gas cylinders from inside the M/s Maa Kali Restaurant as deposed by the complainant and supported by other Food Inspectors. From the cross-examination of the official witnesses there is nothing to show any case grudge or probability or false implication. This is more so, when the D.W.1 examined by the petitioners/accused admitted clearly the act of seizure. Therefore, I find there is no illegality or any perverse finding by the learned Court below. Learned counsel appearing for the petitioner has referred me to decision of this court report in Jogen Das and three Ors. v. State of Assam, where upon it was stated as to who are interested witness and who are not. Here the official witnesses were examined. Only because they are official witnesses cannot be a ground to term them as interested witnesses. The complainant, who is a supply inspector deposed on oath and his evidence could neither be shaken by way of cross-examination nor by production of better evidence in rebuttal. Even if there is examination of only one of the seizure witnesses, the seizure list and search memo will show that there are more than one witnesses who signed this search report and seizure list. Therefore, there is no clear case of violation of provision of Section 100 of Cr.P.C. either. I find that evidence of Jatindra Konwar shows sufficient compliance of the law. I find that grounds raised by the revisionists are purely of technical in nature. There is nothing to find and hold perversity in the finding of the court below. 6. In the result, I find no merit in this revision petition. It stands rejected. The sentence is to be executed in accordance with law. Order passed by this court earlier suspending the sentence is vacated forthwith. Bail of petitioners stand cancelled. The accused/petitioners are to surrender within 15 days before trial court in order to serve out the sentence, failing which the trial court will take appropriate steps for execution of the sentence.