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2004 DIGILAW 191 (PAT)

Rajendra Sharma And Another v. State Of Bihar

2004-02-17

BRAJ NANDAN PRASAD SINGH

body2004
Judgment Braj Nandan Prasad Singh, J. 1. Appellant Rajendra Sharma along with Shankar Dayal Sah (dead) and Prayag Sah suffered conviction u/s. 7 of the Essential Commodities Act, for violation of provisions of Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter called as "Unification Order") and while the appellant was sentenced to undergo rigorous imprisonment for a term of six months, Shankar Dayal Sah and Prayag Sah were sentenced to undergo rigorous imprisonment for a term of three months each. As during pendency of appeal, Shankar Dayal Sharma was reported to be dead, appeal as against him had abated. It was brought to the notice of the Court that no appeal was preferred by other convict Prayag Sah. 2. Factual matrix.--Allegedly pursuant to apprehension of one Prayag Sah with a tin of 18 litres of kerosene oil, said to have been purchased from fair price shop of the appellant through his employee Shankar Sah in black market, business premises of the appellant was searched by the Circle Officer, Jandaha, Vaishali, in course of which maldistribution of essential commodities to the consumers attached to the fair price shop of the appellant, came to his notice, and prominent among those maldistributions was that though there should have been only 128 litres of kerosene oil in the stock, on strength of entries made in the stock register, on physical verification, there had been seizure of 180 litres of kerosene oil from the stock. Instances of maldistribution of sugar had also come to notice of the Circle Officer, Jandaha, during inspection of the fair price shop of the appellant. A Police case had been registered, pursuant to which on conclusion of investigation, charge-sheet was laid before the Court against the appellant and two other convicts. During trial, while prosecution had examined 10 witnesses, not less than seven witnesses had been examined on behalf of the defence. 3. Defence of the appellant had been that of innocence and he ascribed false implication by the Circle Officer at the instance of Up Mukhiya and Sarpanch, for his failure to oblige Circle Officer to make payment of unauthorised toll. 4. 3. Defence of the appellant had been that of innocence and he ascribed false implication by the Circle Officer at the instance of Up Mukhiya and Sarpanch, for his failure to oblige Circle Officer to make payment of unauthorised toll. 4. Reiterating his earliest version, Shri Jitendra Kumar Jha (PW 4), the then Circle Officer, Jandaha, states about inspection of fair price shop of the appellant, pursuant to seizure of 18 litres of kerosene oil from possession of one Prayag Sah, allegedly purchased from the shop of the appellant through his employee, when instances of maldistribution of sugar and kerosene oil had come to his notice, and as against 128 litres of kerosene oil, which should have been in the stock, on physical verification, there was seizure of 180 litres of kerosene oil from the stock in presence of two witnesses, which is evidenced by Exhibit 1. Though Circle Officer says that consumers had filed their petitions before him with regard to maldistribution of essential commodities to them from the fair price shop of the appellant and also that their statements had been recorded, he would acknowledge that neither these petitions nor their statements recorded about maldistribution had been made available to the Police, during investigation. Circle Officer in no uncertain terms would acknowledge that though distribution register of the fair price shop had evidenced signature of the consumers to whom there had been distribution of essential commodities from the shop, he did not ascertain the genuineness of those signatures notwithstanding refusal of the consumers. Tantan Paswan (PW 7) was shown to be the person who set the ball in motion, as he alleges to have apprehended Prayag Sah with a tin containing 18 litres of kerosene oil purchased from fair price shop of the appellant through his employee Shankar Sah. He stated, inter alia, that he took Prayag Sah along with seized kerosene oil to Mukhiya. Through he would make bald assertion about maldistribution of kerosene oil, he would acknowledge that he had not taken recourse to public authority. Though similar assertions about maldistribution were made also by Kuldip Ram (PW 1), he too had hot taken recourse to public authority. Through he would make bald assertion about maldistribution of kerosene oil, he would acknowledge that he had not taken recourse to public authority. Though similar assertions about maldistribution were made also by Kuldip Ram (PW 1), he too had hot taken recourse to public authority. Assertion made by this witness and Bechu Ram (PW 2} about they having not made parallel statement before the Police with regard to apprehension of Prayag Sah with offended articles was drawn by the defence, that being materially different from statements made by them during investigation. Assertion about apprehension of Prayag Sah with a tin of kerosene oil had been made also by Prabhu Ram (PW 3) and Rajdeo Paswan (PW 5). They also alleges maldistribution of essential commodities to them by the appellant. They too had not taken recourse to public authority about their complaint for maldistribution of sugar and kerosene oil by the appellant. If PW 5 is to be believed, even though he did not bear ration card, he was getting ration from the fair price shop of Surendra Singh. Attention of this witness too had been drawn by the defence about he having not made parallel statement before the Police. Mahadeo Sinha (PW 8) was Mukhiya of Gram Panchayat and he states about, production of Prayag Sah along with a tin of kerosene oil by Tantan Paswan. Though this witness states that he was never informed by the appellant about receipt of essential commodities in the fair price shop, which he was required to do, he would acknowledge that he did not inform Sub-divisional Magistrate, and though complaints of some consumers were forwarded to the Sub-divisional Magistrate by him, there is no such evidence on the record either about complaints, or any action having been taken against the appellant. Investigating Officer stated to have conducted investigation of the case when he took custody of the seized articles from the Circle Officer, Jandaha. 5. Finding recorded by the Court below was assailed by the learned-counsel for the appellants on more than one grounds and submission is that even though the stock register had evidenced signature of recipients of sugar and kerosene oil, genuineness of them even on challenge, had not been ascertained by the Circle Officer which had been acknowledged in no uncertain terms by the said witness. So tar accusation about maldistribution of kerosene oil and sugar by the appellant from his fair price shop was concerned, neither substance of accusation explained to the appellant were explicit in terms, as to these allegations, nor the statement of the appellant recorded by the trial court was specific, as in his statement the appellant was made answerable by the trial judge only with regard to sale of 18 litres of kerosene oil in black market in shop and even though Shankar Sah, other appellant, allegedly being employee of Rajendra Sah was more answerable, there has been no evidence that any inquiry worth the name had been made either by the Police or the Circle Officer, about offending articles, supplied by said Shankar Sah from the shop of the appellant. As for seizure of 180 litres of kerosene oil from the stock of the appellant, in presence of Singheshwar Paswan (DW 1) and Shital Sharma (DW 2), who were shown as seizure-list witnesses, there is no gainsaying that both the witnesses had turned volte face to the State about seizure of such offending articles in question shown in the seizure memo. Other limb of argument was that on the date of alleged inspection that is 14.10.1985, since there was no storage limit fixed by the State Government, as required under the relevant rules of Bihar Trade Articles (Licenses Unification) Order, with respect to kerosene oil, sugar and rice, said Unification Order was not workable on that day and hence prosecution of the appellant on that score had vitiated, and reliance on this score had been placed on two decisions of this Court reported in 1988 BLJR 769 , (Rajesh Trading Company V/s. State of Bihar) and 1992 (1) PLJR 562 (Onkar Lal Sharma V/s. State of Bihar). Reliance was also sought to be placed on a decision of the Apex Court reported in 1988 PLJR (SC) 44 (State of Cooperative Marketing Union Limited V/s. State of Bihar). 6. Reliance was also sought to be placed on a decision of the Apex Court reported in 1988 PLJR (SC) 44 (State of Cooperative Marketing Union Limited V/s. State of Bihar). 6. Though contentions are raised that the appellant had suffered ordeal of protracted prosecution for about 19 years, in view of infirmities that have surfaced in the prosecution evidence and the appellant being not answerable for violation of Bihar Trade Articles Lincence Unification Order, 1984, in view of that being not workable on the day of incident, finding recorded by the Court below is hereby set aside and the appellant is acquitted of the charges brought against him. He stands discharged from liability of bail bonds. The appeal accordingly succeeds.