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2004 DIGILAW 168 (PNJ)

State Of Haryana v. Leelu Ram

2004-02-13

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. This appeal has been filed by the appellant-State of Haryana against the judgment and order dated 13.9.1996 passed by the learned Special Judge, Faridabad whereby the respondents have been acquitted of the offence under Section 7 of the Essential Commodities Act 1955 (Act, for short). 2. Case FIR No. 92 dated 23.2.1992 (Ex. PA/C) was registered at Police Station City Palwal for the offence under Section 7 of the Act. The complainant Tota Ram, ASI Police Station City Palwal (PW-5) sent a written note (Ex. PA) to the Station House Officer, Police Station City Palwal, which is to the effect that on 23.2.1992, he along with Head Constable Daya Ram No. 680, Constable Ishwar Singh No. 574 and Constable Ved Ram No. 736 were present at the Sila Gate, Palwal in connection with patrol duty. There Dharam Chand Sub Inspector, Food & Supply, Palwal met him and was conversing with him and there a secret informer gave information that Anand Sarup Mahajan (respondent No. 2) would in a four-wheeler No. HR-30-3717 driven by Leelu Ram (respondent No. 1) carry kerosene oil to Sector 23, Faridabad for selling it in the black market and if a roadblock (naka) was set-up at Patli Gate, Palwal, he could be apprehended. The information was considered reliable and correct and from which, an offence under Section 7 of the Act was made out. Accordingly, a note (ruqa) for further proceeding of registration of a case was sent through Constable Ved Pal. The number of the case was asked to be intimated after registration. ASI Tota Ram along with his companions proceeded to Patli Gate, Palwal for putting roadblock (nakabandi) in the area. On the basis of the said note (ruqa) the case (FIR) was registered. During the checking at the roadblock set up for the purpose, in the presence of witnesses the four- wheeler No. HR-30-3717 and the driver Leelu Ram (respondent No. 1) was intercepted and checking of the same was conducted. Anand Sarup Mahajan (respondent No. 2), however, succeeded in fleeing away from the four-wheeler. From the four-wheeler, four iron drums having capacity of 200 litres were recovered and after opening the same, they were found to be full of kerosene oil. Thereafter, vide memo dated 23.2.1992 (Ex. PB) proceedings regarding taking possession of the four-wheeler No. HR-30-3717 and drums of kerosene were carried out. From the four-wheeler, four iron drums having capacity of 200 litres were recovered and after opening the same, they were found to be full of kerosene oil. Thereafter, vide memo dated 23.2.1992 (Ex. PB) proceedings regarding taking possession of the four-wheeler No. HR-30-3717 and drums of kerosene were carried out. After making necessary arrangements five-five litres of kerosene oil was taken out in separate plastic cans as sample from each of the four drums. The four drums were sealed with the seal `TR and the four- wheeler HR-30-3717 was taken into possession by the police as evidence by preparing memo. The seal after use was handed over to Shri Dharam Chand Sub Inspector Food and supplies Department. The memo of possession was prepared and the signatures of the witnesses were obtained. On asking Leelu Ram (respondent No. 1) was unable to produce any permit in respect of the oil. 3. The police carried out investigation in the case on the basis of the FIR that was registered and presented challan in terms of Section 173 of the Code of Criminal Procedure (Cr.P.C., for short) in the Court of the learned Special Judge, Faridabad on 5.2.1993. The learned Special Judge, Faridabad on 13.8.1993 heard arguments on the charge and found a prima facie case under Section 7 of the Act to be made out against the accused. Accordingly, they were served with a notice. The accused pleaded not guilty and claimed trial. Thereafter, the statements of three prosecution witnesses were recorded on 11.11.1994 and Ved Parkash Constable was given up as unnecessary. Tota Ram ASI was present but the learned Public Prosecutor wanted to examine him last of all. Some other witnesses were also examined thereafter on various dates and the prosecution evidence was closed on 2.6.1996. The statement of the respondents in terms of Section 313 Cr.P.C. was recorded on 7.7.1995 in which they stated that they were innocent and had been falsely implicated. On 26.7.1996, it was, however, observed by the learned Special Judge that four drums of kerosene oil weighing 200 litres each were recovered from the possession of the respondents but the charge had been wrongly framed. It was mentioned that four drums containing six litres of kerosene oil were found in possession of the accused. Learned Public Prosecutor had moved an application for correction of charge as there was a clerical mistake. It was mentioned that four drums containing six litres of kerosene oil were found in possession of the accused. Learned Public Prosecutor had moved an application for correction of charge as there was a clerical mistake. The defence counsel gave no objection to the amending of the charge. Accordingly, correction was allowed to be made and amended charge was framed on the allegation that both the respondents on 23.2.1993 in the area of Palwal were found transporting in four-wheeler No. HR-30-3717 four drums containing 200 litres kerosene oil each without any permit and thereby contravened the provisions of Haryana Kerosene Dealers Licensing Order, 1976 (1976 Order, for short) and they thereby committed an offence punishable under Section 7 of the Act. The accused pleaded not guilty to the amended charge. The learned Public Prosecutor made a statement that he did not want to lead any other evidence except the evidence already on file. The defence counsel also did not want to summon or cross-examine any of the witnesses already examined. The learned Special Judge, after considering the evidence and material on record in terms of his order dated 13.9.1996 acquitted the respondents which order, as already noticed, is assailed in this appeal by the appellant State. 4. Shri J.P. Dhull, learned Assistant Advocate General, appearing for the appellant State has contended that the prosecution has proved its case in all respects by leading cogent and convincing evidence. The kerosene oil drums were recovered when a roadblock had been put up; besides Anand Sarup (respondent No. 2) jumped from the four-wheeler and ran away. These circumstances having been established, the learned Special Judge, it is contended, erred in holding that the prosecution had failed to prove that four drums of kerosene oil were recovered from the possession of the accused and the said finding is liable to be set aside. Besides, it is contended that the learned Special Judge, wrongly held that Tota Ram ASI (PW-5) was not competent to investigate the case and to make search and seizure. 5. In response, Shri R.S. Sihota, Advocate learned counsel appearing for the respondents contends that the evidence produced by the prosecution is discrepant and highly untrustworthy; besides no independent witness was joined in the raid even though the alleged recovery was made in a populated area in the town. 5. In response, Shri R.S. Sihota, Advocate learned counsel appearing for the respondents contends that the evidence produced by the prosecution is discrepant and highly untrustworthy; besides no independent witness was joined in the raid even though the alleged recovery was made in a populated area in the town. The non-joining the independent witnesses in fact by itself vitiates the case of the prosecution. It is also contended that the learned Special Judge rightly held that the prosecution had failed to prove that four drums of kerosene oil were recovered from the possession of the respondents. It is further contended that Tota Ram ASI (PW-5) was not competent to investigate the case. In the circumstances, the judgment recorded by the learned Special Judge, it is contended, is just and reasonable and calls for no interference. 6. In order to appreciate the respective contentions of the learned counsel appearing for the parties, it is appropriate to note that Anand Sarup Mahajan (respondent No. 2) had a licence (Ex. PC) in Form B under Clause VII (3) of the Haryana Food-Articles (Licensing & Price Control) Order, 1985, the same is a licence for purchase, sale or storage of food articles. The said licence is valid upto 31.3.1992 and was valid at the time of occurrence on 23.2.1992. The allegations as have been made against the respondents are that they were carrying kerosene oil for selling them in black market. It is in the amended charge that has been framed that it has been alleged that both the respondents on 23.2.1993 were found transporting in a four-wheeler four drums containing 200 litres kerosene oil each without any permit and thereby contravened the provisions of the 1976 Order and they thereby committed an offence punishable under Section 7 of the Act. Therefore, the violation that has been attributed to the respondents is that with respect to the 1976 Order. Some of the clauses of the 1976 Order defines dealer as follows :- 2. "Definitions. - In this Order, unless the context otherwise requires. - (a) `dealer means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether wholesale or retail and whether, in conjunction with any other business or not, and includes :- (i) his representative or agent and (ii) an oil company making wholesale supply from its storage or selling point :" 7. - (a) `dealer means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether wholesale or retail and whether, in conjunction with any other business or not, and includes :- (i) his representative or agent and (ii) an oil company making wholesale supply from its storage or selling point :" 7. Clause 3 of the 1976 Order relates to `licensing of dealers and it is provided that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a license issued in this behalf by the District Magistrate. Clause 4 relates to `issue of licence. An application for a licence is to be made to the District Magistrate in Form A appended to the 1976 Order. Besides, every licence is to be in Form B appended to the said Order and is to be subject to the conditions mentioned therein and such other conditions as are laid down under the said Order as the District Magistrate may specify from time to time. Clause 8 of the 1976 Order relates to `forfeiture of security deposit and clause 10 relates to `appeal. Clause 11 of the 1976 Order, which is relevant for the purpose of the present appeal reads as under :- "11. Power of entry, search and seizure. Clause 8 of the 1976 Order relates to `forfeiture of security deposit and clause 10 relates to `appeal. Clause 11 of the 1976 Order, which is relevant for the purpose of the present appeal reads as under :- "11. Power of entry, search and seizure. - (1) The Director, the District Magistrate, the District Food and Supplies Officer, the Assistant Food and Supplies Officer, or any other person authorised in this behalf by the State Government, may with a view to securing compliance with this order or to satisfy himself that this Order has been complied with :- (a) enter and inspect any depot or any other business premises of kerosene dealer or any premises on which he has reasons to believe that kerosene has been, is being or is likely to be kept, stored, distributed, disposed of or from where kerosene has been, is being or is likely to be removed or transported; (b) stop and inspect any vehicle or animal on which kerosene is being carried for sale, supply or storage; (c) search and as far as may be necessary for that purpose detain any person or vehicle or animal of the dealer; (d) seize any kerosene found in the possession of such licence- holder or such person or in such vehicle or on such animal in respect of which he has reason to believe that a contravention of this Order has been, is being or is about to be committed; and (e) every person (including his agents and servants) incharge of a vehicle or animal or premises which is searched or is sought to be searched under the provisions of sub-clause (a) shall allow the authority making the demand, access to such premises, vehicle or animal and shall also answer all questions put to him truthfully and to the best of his knowledge and belief. (2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures, under this order (sic)." From a reading of the FIR and the charge, that been framed against the respondents it has not been mentioned as to which particular clause of the 1976 Order was allegedly violated. In any case, it may be seen whether the respondents were apprehended with four drums each containing 200 litres of kerosene oil, which they were carrying in the four-wheeler and that too for selling in the black market; besides whether Anand Sarup (respondent No. 2) had fled from the spot when the four-wheeler which is said to be carrying four drums each containing 200 litres of kerosene oil was apprehended as has been alleged by the prosecution. The learned trial Court framed two points for consideration i.e. :- (i) Whether the accused were apprehended and the drums of kerosene oil were recovered from them as alleged; and (ii) Whether Sub-Inspector Tota Ram was not competent to investigate the case and to make search and seizure. 8. In respect of point No. 1 it was held that the prosecution has failed to prove that four drums of kerosene oil were recovered from the possession of the accused. It was found that Dharam Chand (PW-3) Sub Inspector, Food and Supply, met the police party by chance. Besides, usual commercial activity was on at that time and no person from the public was joined by the police. It is appropriate to note that Clause 11 of the 1976 Order, a reference of which has been made above, would show that it provides for power of entry, search and seizure. Sub-Clause (2) of Clause 11 envisages that the provisions of Section 100 Cr.P.C. relating to search and seizure shall, so far as may be apply to searches and seizures, under the 1976 Order. Admittedly, there has been no compliance or even an attempt to comply with the requirements of Section 100 Cr.P.C. Only official witnesses have been examined in the case. Rameshwar Dayal Sub Inspector (PW-1) was posted as SHO Police Station City Palwal at the time of occurrence. He merely states that on the day of occurrence he received a memo (Ruqa) Ex. PA and he registered formal FIR Ex. PA/1 and made endorsement Ex. PA/2. The important and necessary witnesses in the case are Dharam Chand Sub Inspector Food and Supply Palwal (PW-3) and Tota Ram ASI (PW-5). Dharam Chand (PW-3) states that he met the police party at Minar Gate Palwal. The police officials told him that kerosene oil was being carried to be sold in the black-market. PA/1 and made endorsement Ex. PA/2. The important and necessary witnesses in the case are Dharam Chand Sub Inspector Food and Supply Palwal (PW-3) and Tota Ram ASI (PW-5). Dharam Chand (PW-3) states that he met the police party at Minar Gate Palwal. The police officials told him that kerosene oil was being carried to be sold in the black-market. Thereafter, they stood at the Octroi Post and after an hour, a four-wheeler bearing registration No. HR-30-3717 came there. On seeing the police party it stopped and one person on asking the driver his name was Anand Sarup (respondent No. 2) and was the depot holder ran away. After making search four drums of kerosene oil were recovered. It may be noticed that the meeting of Dharam Chand S.I. (PW-3) with the police officials was a chance meeting. It is well known that it is proverbially rash to rely on the testimony of a chance witness. Besides, the provisions of Section 100(4) Cr.P.C., which have been made applicable in terms of sub-clause (2) of Clause 11 of the 1976 Order have not been complied with. The evidence of the official witnesses though can be accepted especially when there is nothing to show that the accused have been falsely implicated or that the police did not have any enmity so as to falsely implicate the accused, however, when recovery is effected from a busy area it is expected of the police officials carrying out a raid to make some efforts to join independent witnesses in terms of Section 100(4) Cr.P.C. and when no effort is even shown to have been made to join witnesses from the public, then a doubt is cast as to the veracity of the prosecution case. In the case in hand, no effort is shown to have been made to join independent witnesses. Besides, the meeting of Dharam Chand Sub Inspector Food and Supply (PW-3) with the police officials is a chance meeting. Therefore, in the circumstances, the learned trial Court having reached the conclusion that the recovery was not effected and that the identification of Anand Sarup (respondent No. 2) was not established, there is no reason to dislodge the said finding. Besides, the meeting of Dharam Chand Sub Inspector Food and Supply (PW-3) with the police officials is a chance meeting. Therefore, in the circumstances, the learned trial Court having reached the conclusion that the recovery was not effected and that the identification of Anand Sarup (respondent No. 2) was not established, there is no reason to dislodge the said finding. This is moreso for the reason that Dharam Chand (PW-3) and Tota Ram ASI (PW-5) did not identify Anand Sarup (respondent No. 2) who fled away from the scene when the four-wheeler was intercepted and apprehended. In fact, ASI Tota Ram (PW-5) states that Inspector Dharam Chand (PW-3) identified Anand Sarup (respondent No. 2) when he fled away; whereas Dharam Chand (PW-3) in his deposition states that on asking from the driver the name of the other person came to be known as Anand Sarup (respondent No. 2) who was the depot holder and had run away from there. In cross-examination Dharam Chand (PW-3) is quite categoric and he states that : "The four wheeler stopped almost at the turning and from there itself a person alighted from the 4 wheeler and ran away. The whereabouts of that person came to be known only on being told by the driver of 4 wheeler." Therefore, evidently the identity of Anand Sarup (respondent No. 2) is not in any manner established and the recovery of four drums each containing 200 litres of kerosene oil that has been alleged is only based on the evidence of the official witnesses and in the circumstances, without joining independent witnesses in the search seizure and in fact not even making any attempt to join any independent witness, cannot be said to have been proved. In State of Punjab v. Raman Kumar, 1997(4) Recent Criminal Reports 772 (FB) a Full Bench of this Court considered the contention of the Food Inspector in the said case that he tried to join independent witness but no one was available. It was held that the bald statement was not sufficient and the Food Inspector in the said case was required to show by proper documentary evidence that he made efforts to secure presence of independent witnesses, but it was paretically not possible for the Food Inspector to secure the presence of some independent witness. It was held that the bald statement was not sufficient and the Food Inspector in the said case was required to show by proper documentary evidence that he made efforts to secure presence of independent witnesses, but it was paretically not possible for the Food Inspector to secure the presence of some independent witness. In the case in hand, it is not even shown as to whether any effort was made to join an independent witness even though the place where the recovery was carried out is a busy locality. In Rang Bahadur Singh v. State of U.P., 2000(2) RCR(Criminal) 155, it was held that the interference against an appeal against acquittal cannot be made if reasons of the trial Court are good and sturdy and acquittal of guilty person should be preferred to conviction of an innocent person. Unless prosecution establishes that guilt of accused beyond reasonable doubt, conviction cannot be passed on the accused. To the similar effect are the observations of the Honble Supreme Court in Babu and others v. State of Uttar Pradesh, 1983 Cr.L.J. 334 wherein it was held as follows :- "In appeal against acquittal if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court unless the conclusions are not possible. If the findings reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a difference conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been filed by it." 9. Besides, as has already been noticed above, the case of the prosecution is that four drums of kerosene oil have been recovered. The recovery has been held to be not proved. Even otherwise it is not shown as to how mere possession of the drums of kerosene oil would make out any offence against the respondents. Besides, as has already been noticed above, the case of the prosecution is that four drums of kerosene oil have been recovered. The recovery has been held to be not proved. Even otherwise it is not shown as to how mere possession of the drums of kerosene oil would make out any offence against the respondents. In Sohan Singh v. State of Haryana, 1987(1) Recent Criminal Reports 316 (P&H) two drums of kerosene oil were recovered from possession of the accused in the said case. The charge against the accused therein was that he had purchased and sold kerosene oil without licence in contravention of Clause (3) of the 1976 Order. It was held that the recovery of drums was not a matter of much consequence as there could be no manner of doubt that mere possession of kerosene oil cannot, by itself, suffice to bring the accused therein within the definition of `dealer under the 1976 Order. It was further held to hold that the accused was liable, it was incumbent upon the prosecution to establish something more than mere possession of kerosene oil. In the case in hand too there is nothing to show that the accused had actually been selling the kerosene oil in black market or was taking it for the said purpose as is the case set up by the prosecution. Therefore, mere possession of the kerosene oil drums, even if it is taken to be established, is inconsequential and does not in any manner show the violation of the 1976 Order. 10. The other contention that has been argued is that the Assistant Sub Inspector of Police had powers to make search and seizure and to inspect the four-wheeler. The learned trial Court held while considering the second point framed by it that SI Tota Ram (PW-5) had no power to make a search and seizure. It was held that in the present case the power of search and seizure had not been given to any officer of the police and no powers have been given for search and seizure to police officer, the seizure made by ASI Tota Ram is illegal and void. It was held that in the present case the power of search and seizure had not been given to any officer of the police and no powers have been given for search and seizure to police officer, the seizure made by ASI Tota Ram is illegal and void. In the case of Siri Ram v. State of Punjab, 1994(1) Recent Criminal Reports 125 (P&H) in a case relating to recovery of kerosene where investigation was conducted by ASI whereas it could be conducted by an officer not below the rank of Sub Inspector, it was held that irregularity in the investigation would not vitiate the trial or conviction in the absence of any evidence that the party was prejudiced. The learned counsel for the respondents has, however, contended that the power to search and seizure in terms of Clause 11 of the 1976 Order has been given to the Director, the District Magistrate, the District Food and Supplies Officer, the Assistant Food and Supplies Officer or any other person authorised in this behalf by the State Government. In support of his contention the learned counsel for the respondents has referred to Pooran Chand v. State of Punjab, 1988(1) Recent Criminal Reports 138 (P&H); Harpal Singh v. State of Punjab, 1991(3) Recent Criminal Reports 307 (P&H) and Ashok Kumar v. State of Haryana, 1991(2) Recent Criminal Reports 140 (P&H). The said judgments do support the case of the respondents. However, it is well known that it is primarily a question of prejudice which is to be seen in the conduct of investigation. Illegality or irregularity during investigation of a case is by itself not sufficient to vitiate the trial or conviction unless it has resulted in prejudice to the accused or has caused miscarriage of justice. In Durga Dass v. State of Himachal Pradesh, AIR 1973 SC 1379 it was held that in the absence of prejudice to the accused, a mere irregularity in the investigation does not vitiate the trial or conviction. However, in the case in hand, the question of the investigation or trial resulting in prejudice is not of much consequence as the case otherwise has not been established by the prosecution. As already observed, the identity of Anand Sarup (respondent No. 2) has not been established and even the recovery has also been held to be not established as no independent witness was examined. As already observed, the identity of Anand Sarup (respondent No. 2) has not been established and even the recovery has also been held to be not established as no independent witness was examined. The search, therefore, carried out by ASI Tota Ram (PW-5) whether it would vitiate the trial or not and whether any prejudice was caused to the respondents, in the facts and circumstances of the case is inconsequential. For the reasons afore-stated, there is no merit in the appeal and the same is accordingly dismissed.