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Patna High Court · body

2005 DIGILAW 187 (PAT)

Vidya Sagar Prasad v. State Of Bihar

2005-02-21

M.U.VISA

body2005
Judgment M.U.Visa, J. 1. This appeal is directed against the judgment and order both dated 6.6.1992 passed by Special Judge, Nalanda at Biharsharif in Bihar Police Station Case No. 115 of 1989 convicting and sentencing the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for a further period of three months under Section 7 of Essential Commodities Act (In short E.C. Act") for contravening the provisions of Sections 5, 5(A) and 5(B) of Aluminium (Control) Order, 1970 as amended in the year, 1981. 2. Case of prosecution, in short, is that on 7.3.1989 at 00.30 hours, informant Sub-Inspector Babu Ram Murmu (P.W. 2) recorded his own Fard-e-bayan (Exhibit-3) stating therein that about one hour prior to the time of his recording his Fard-e-bayan, when he was in search of illicit spirit in Khasganj area, he received a confidential information that the stolen aluminium wires of Bihar (Sohsarai) Police Station Case No. 14 of 1989 under Section 379 of IPC were kept concealed in the shop of appellant. On this information, informant alongwith his party comprising of Sub-Inspector Shambhu Pathak (PW 1), Assistant Sub-Inspector Ram Awadhesh Ram (PW 3), Sub-Inspector Subodh Kumar Srivastava (PW 4), Sub-Inspector Sitara Khan (PW 5) and some constables alongwith witnesses, namely, Md. Sajjad (PW 6) and Baba Bombaywaia (not examined) raided the shop-cum-house of appellant. In the meantime, Deputy Superintendent of Police and Police Inspector, Biharsharif also reached there. In the raid, fifty ingots of aluminium were recovered from the shop of appellant for which he could not produce any paper. The ingots were seized and seizure list was prepared. The informant, in his Fard-e-bayan, stated that appellant had contravened the provisions of Sections 5, 5A and 5B of Aluminium (Control) Order, 1970, In his Fard-e-bayan, he further stated that because aluminium ingots found in the shop of appellant, appeared to have been made by melting stolen aluminium wires, therefore, appellant has committed offence under Section 414 of Indian Penal Code (In short "IPC") also. On the basis of Fard-e-bayan of informant, a formal first information report (Exhibit-4) under Section 414 of IPC and Section 7 of E.C. Act was drawn and police, after investigation, submitted charge-sheet under aforesaid sections and cognizance of the offence was taken and appellant was put on trial. 3. On the basis of Fard-e-bayan of informant, a formal first information report (Exhibit-4) under Section 414 of IPC and Section 7 of E.C. Act was drawn and police, after investigation, submitted charge-sheet under aforesaid sections and cognizance of the offence was taken and appellant was put on trial. 3. The case of appellant, as it appears from the cross-examination of prosecution witnesses, is that appellant under a valid licence is running an aluminium factory and he has been falsely implicated in this case and an another case bearing No. 436 of 1984 was registered against the appellant in which appellant was acquitted and in that case, eighty one kilograms of melted aluminium was released in favour of son of appellant. No witness on behalf of appellant was examined during trial. 4. In order to prove its case, prosecution examined six witnesses. Babu Ram Murmu (PW 2) is the informant. Shambhu Nath Pathak (PW 1), Ram Awadhesh Ram (PW 3), Subodh Kumar Srivastava (PW 4) and Sitara Khan (PW 5) are other Police Officers who, as alleged, were with informant at the time of raiding the shop-cum-house of appellant. Md. Sajjad (PW 6) is a seizure list witness. 5. Md. Sajjad (PW 6) has said that he knows nothing about the occurrence and police had not raided the shop of appellant in his presence. Although he has proved his signature (Exhibit-2/1) on seizure list but he has been declared hostile by prosecution. In cross-examination, he has said that police had come to his"shop without any article and got his signature on a paper without giving him any occasion to read the paper nor the paper was read over to him. 6. Babu Ram Murmu (PW 2), the informant has said that on 6.3.1989, he raided the shop of appellant where he reached at about 11.45 PM and he recovered fifty aluminium ingots and on demand, the appellant did not produce any paper or licence for possessing those ingots. He has said that in presence of two independent witnesses, he prepared seizure list (Exhibit-1) which was signed by independent witnesses (Exhibits-2 and 2/1). He has further said that appellant also put his signature (Exhibit-2/2) when copy of seizure list was given to him. He has proved his Fard-e-bayan (Exhibit-3). He has said that in presence of two independent witnesses, he prepared seizure list (Exhibit-1) which was signed by independent witnesses (Exhibits-2 and 2/1). He has further said that appellant also put his signature (Exhibit-2/2) when copy of seizure list was given to him. He has proved his Fard-e-bayan (Exhibit-3). Shambhu Nath Pathak (PW 1), Ram Awadhesh Ram (PW 3), Subodh Kumar Srivastava (PW 4) and Sitara Khan (PW 5) have also stated that in search, fifty aluminium ingots were recovered. Shambhu Nath Pathak (P W 1), in his examination-in-chief, has said that aluminium ingots were recovered from the shop of appellant but in cross-examination, he has said that in the back portion of the shop, there was a room and ingots were recovered from that room and alongwith ingots, some aluminium utensils and some brass and kansa utensils were also recovered. Ram Awadhesh Ram (PW 3), in his cross-examination, has said that at the time of raid, he was standing outside the shop and he does not know from which portion of the shop, the aluminium ingots were recovered. Sitara Khan (PW 5), in his examination-in-chief, has said that fifty pieces of aluminium ingots were recovered from a room adjoining to the shop of appellant. He has proved the ingots marked as Material Exhibits-I to I/49. In Para-5 of his cross-examination when a Karhai (pan) (marked as Material Exhibit-ll) was shown to him, he admitted that if the bottom portiopn of that pan is removed then the removed portion would look like ingots which are said to have been recovered from the shop of appellant. 7. The evidence of prosecution witnesses clearly shows that the aluminium ingots were recovered not from the shop of appellant but from a room adjacent to his shop used as residential house. The total weight of all fifty ingots was 3.750 Kgs. as deposed by the informant. The appellant has been convicted under Section 7 of E.C. Act for violating the provisions of Sections 5, 5A and 5B of Aluminium (Control) Order, 1970 as amended in the year, 1981. The examination of appellant under Section 313 of Criminal Procedure Code shows that question was put to him that as per the evidence of prosecution witnesses, he has contravened the provisions of Section 5 of Aluminium (Control) Order, 1970. The examination of appellant under Section 313 of Criminal Procedure Code shows that question was put to him that as per the evidence of prosecution witnesses, he has contravened the provisions of Section 5 of Aluminium (Control) Order, 1970. This shows that for contravention of provisions of Sections 5, 5A and 5B of Aluminium (Control) Order, 1970 as amended in the year, 1981 for which appellant has been convicted and sentenced, no question was put and, therefore, it is clear that the examination of appellant under Section 313 of Criminal Procedure Code was not in accordance with law. Besides this, Section 5 of Aluminium (Control) Order, 1970 as amended in the year, 1981 provides that the Central Government by notification in official gazette may provide that the producers or manufacturers or dealers shall sell aluminium only to such person or persons or companies as may be specified by the Controller or such other officer as may be authorised by the Central Government in this behalf. Section 5A is for direction by Central Government that no producer, manufacturer or dealer or importing agent shall undertake production or engagement in supply and distribution or import, as the case may be, of and or all forms of aluminium specified in the schedule to the order except to such extent and in such manner as may be specified by the Central Government or Controller or such other officer authorised by Central Government in this behalf. Section 5B of the Aluminium (Control) Order, 1970 provides that any person acquiring aluminium from a producer, manufacturer, dealer or importing agent shall not use such aluminium otherwise than and in accordance with any general or specific orders as may be issued from time to time by the Controller or such other officer as may be authorised in this behalf by the Central Government. The allegation against the appellant that fifty aluminium ingots total weight of which was 3.750 Kgs. were found in a room which was part of his residence and which was adjacent to his shop. In the Fard-e-bayan itself, informant has stated that he conducted raid of shop-cum-residence of appellant. The allegation against the appellant that fifty aluminium ingots total weight of which was 3.750 Kgs. were found in a room which was part of his residence and which was adjacent to his shop. In the Fard-e-bayan itself, informant has stated that he conducted raid of shop-cum-residence of appellant. Admittedly, raid was conducted in quite late hours of night and Fard-e-bayan was recorded on 7.3.1989 at 00.30 hours and one hour before recording Fard-e-bayan when informant was in search of illicit liquor of an another case, he received information that appellant had kept stolen aluminium wires and, thereafter, raid was made. This shows that raid was made sometime between 11 PM to 12 PM on 6.3.1989, that is almost midnight. Aluminium ingots were not found in the shop of appellant. Appellant was not found carrying business of aluminium ingots and he cannot be said to be dealer of aluminium. Dealer has been defined in Section 2(c) of Aluminium (Control) Order, 1970 which provides that "dealer means any person who carries on the business of buying and selling aluminium metal and manufactures and semi-manufactures of aluminium metal, whether or not in conjunction with other business and includes a producer or manufacturer thereof or a person acquiring aluminium for manufacture." A similar ques- tion came up for consideration before Supreme Court in the case of Manipur Administration V/s. Nila Chandra Singh, ( AIR 1964 SC 1533 ). In that case, after considering clause 3(1) in Manipur Foodgrains Dealers Licensing Order, 1958 which provided that no person shall carry on business as a dealer except and in accordance with the terms and conditions of a licence issued in this behalf by any licensing authority and clause 3(2) which provides that for the purpose of this clause any person who stores foodgrains in quantity of one hundred maunds or more at any one time shall, unless, the contrary is proved be deemed to store the foodgrains for the purpose of sale, while examining the definition of dealer, the Supreme Court held that "before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the schedule that the sale must be in the 100 mds or more at any one time. It would be noticed that the requirement is not that the person who merely sell, purchase or store the foodgrains in question but that he must be carrying on the business of such purchase, sale or storage and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of definition is ignored, it would be rendering the use of the work "business" redundant and meaningless." 8. In the present case, as stated above, prosecution has not been able to prove that appellant contravened any of the provisions of Sections 5, 5A or 5B of Aluminium (Control) Order, 1981 . There is no evidence on record to show that appellant was found carrying on business of buying or selling aluminium metal or he was found manufacturing or semi-manufacturing aluminium metal or he had acquired aluminium for manufacture. He cannot be said to be a dealer as defined under Section 2(c) of Aluminium (Control) Order, 1970 as amended in the year, 1981. 9. I, therefore, find that prosecution has not been able to prove its case against the appellant. 10. In the result, this appeal is allowed and the order of Court below convicting and sentencing the appellant is hereby set aside and the appellant is acquitted. 11. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds.