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2003 DIGILAW 685 (PAT)

Subodh Singh v. State Of Bihar

2003-07-09

INDU PRABHA SINGH

body2003
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under section 7 of the Essential Commodities Act and has been sentenced to undergo rigorous imprisonment for six months. 2. The prosecution case, in brief, is that on 11.1.1990 at about 3.30. P.M. informant was present near the Pain situated just by the side of the Basbari of Laxman Rai at village-Sirsiya for watching the smuggling of petroleum products from India to Nepal alongwith Dafadar Abdul Khalique and Chowkidars Md. Ayub Ansari and Bittu Rai and he saw a person coming from the side of Sirsiya Bazar on a bicycle carrying small Jerrycan on the handle of bicycle and big Jerrycan kept on the carrier of the said bicycle. It has been further alleged that the aforesaid cyclist was intercepted by the informant, dafadar and Chowkidars and it was found that he was carrying 30 litres diesel in one big plastic Jerrycan and 10 litres diesel in 2 small Jerrycan being the total of 40 litres of diesel. It has been further alleged that on querry the said cyclist disclosed his name as Subodh Singh, and on demand the appellant did not produce any receipt relating to the aforesaid 40 litres of diesel which was recovered from his possession. It has been further alleged that the appellant confessed his guilt and the informant seized 40 litres of diesel alongwith three Jerrycan and one old Hero cycle in presence of two independent witnesses and he prepared a seizure list and the witnesses put their L.T.I. on it. It has been further alleged that the appellant was caught red-handed at the place of occurrence and he was brought to Bela police station alongwith seized 40 litres of diesel and a old Hero cycle. On the basis of the written statement Bela P.S. Case No. 4/90 was registered under section 7 of the Essential Commodities Act and a formal F.I.R. was drawn up. After completion of investigation the police submitted charge sheet and thereafter cognizance was taken and finally the trial concluded with the result as indicated above. Hence this appeal. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case. 4. The prosecution in order to prove its case has examined altogether four witnesses. P.W.1 is Abdul Khalique. P.W. 2 is Md. Ayub Ansari. P.W. 3 is Biltu Rai. Hence this appeal. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case. 4. The prosecution in order to prove its case has examined altogether four witnesses. P.W.1 is Abdul Khalique. P.W. 2 is Md. Ayub Ansari. P.W. 3 is Biltu Rai. P.W, 4, Nagendra Prasad Singh is the I.O. and informant of this case. 5. The defence has also examined two witnesses. D.W. 1 is Gorakh Sah and D.W. 2 is Deo Narain Das. 6. P.W. 4 the informant has fully supported the case of the prosecution. According to him on 11.1.1990 at 3.30 P.M. he was on duty alongiwth others and they were watching the criminal who were black marketing of petroleum products after smuggling the same from India to Nepal. He has further stated that after sometime he saw a man coming on a bicycle keeping one Jerrycan of 30 litres on the carrier of the bicycle and 2 Jerrycan of 5 litres each hung with the handles of the said bicycle. He has further stated that the aforesaid three Jerrycans were having 40 litres diesel. On interrogation the said man disclosed his name as Subodh Singh and on demand appellant Subodh Singh did not show any cash-memo or receipt about the aforesaid 40 litres of diesel. He has further stated that the appellant further disclosed that he was carrying the aforesaid diesel for black marketing the same in Nepal territory. He has further stated that the aforesaid diesel has been seized in presence of two witnesses and a seizure list has been prepared and the witnesses put their L.T.I. on it. He has further stated that the seized 40 litres of diesel alongwith one old Hero cycle were brought at Bela police station and the appellant was caught redhanded and he was forwarded to the court for facing the trial. P.Ws. 1, 2 and 3 have also supported the version of the informant. 7. D.W. 1 has stated that the appellant, Subodh Singh, is an operator in the rice-mill of Ram Jinis Choudhary situated at Village-Mohanpur. He has further stated that on 11.1.90 he went to Sursand for purchasing fertilisers alongwith the appellant. He has stated that the appellant purchased 50 litres of diesel from Sursand Petrol Pump and cash-memo was issued in the name of Ram Jinis Choudhary. He has further stated that on 11.1.90 he went to Sursand for purchasing fertilisers alongwith the appellant. He has stated that the appellant purchased 50 litres of diesel from Sursand Petrol Pump and cash-memo was issued in the name of Ram Jinis Choudhary. D.W. 2 has stated that the cash memo of 50 litres of diesel was with the Manager of Gorakh Sah but the S.I. of police did not hear anything about it. However, the court below has rejected the evidence of these two defence witnesses as they are interested witnesses. 8. Learned counsel appearing on behalf of the appellant has submitted that there is no evidence at all that the appellant was carrying the diesel to sell in the black marketing. On the other hand the defence has adduced the evidence to the effect that the appellant was carrying the diesel for the use of rice-mill. It has been further submitted that all the prosecution witnesses are police officials and no independent witness has been examined. 9. The fact that the appellant was carrying 40 litres of diesel more than the storage limit fixed by the State Government under section 7 of the Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1966. However, allegation of the prosecution that he was carrying the diesel for the black marketing only on the assumption that he was moving towards Nepal. But none of the independent witness including the seizure list witnesses could be examined to support the case. All the witnesses are members of the police party. The defence has also examined two witnesses to support that the diesel was being carried for running the rice mill belonging to one Ram Jinish Choudhary. The owner of the rice mil has also sworn affidavit which has been exhibited. In his affidavit he has stated that he has a valid card for purchasing the diesel. 10. In view of above the prosecution could not prove its case beyond all reasonable doubts that the diesel was being carried for selling the same in black marketing. On the other hand defence has claimed that the diesel was being carried to the rice mill of Ram Jinish Choudhary. As such the appellant deserves benefit of doubt. Accordingly, he is acquitted of the charge levelled against him. He is discharge from the liability of the bail bond. 11. On the other hand defence has claimed that the diesel was being carried to the rice mill of Ram Jinish Choudhary. As such the appellant deserves benefit of doubt. Accordingly, he is acquitted of the charge levelled against him. He is discharge from the liability of the bail bond. 11. In the result, this appeal is allowed.