Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 100 (PNJ)

Om Parkash v. State of Haryana

2006-01-11

RAJIVE BHALLA

body2006
JUDGMENT Rajive Bhalla, J. - By way of the present appeal, the appellant impugns the judgment and order, dated 13/17.9.1991, passed by the Special Court, Rohtak, whereby he has been convicted under Section 7(1)(a) of the Essential Commodities Act, 1955, and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further imprisonment for three months. 2. The facts, in brief, leading to the filing of the present appeal, are that on 26.7.1989, Chaman Lal, Assistant Food Supplies Officer (AFSO), Rohtak, accompanied by Ramesh Chander, Inspector visited the business premises of M/s. Nagpal Oil and Cotton Mills, Jhajjar Road, Rohtak, a licensee under the Haryana Food Articles (Licensing and Price Control) Order, 1985, (for short hereinafter referred to as "the Order"), issued under Section 3 of the Essential Commodities Act (for short hereinafter referred to as "the Act"). On checking, Chaman Lal, AFSO allegedly found that the board meant to display the stock and rate of mustard, mustard oil and cakes was lying blank. The appellant was unable to produce the licence, issued under the Order, the stock and sale register, as also the cash memos for the sale of those commodities. The stock found lying was 7-1/2 quintals of mustard oil and 75 quintals of mustard cakes. The firm had also failed to file fortnightly returns of the stock in hand for the fortnight ending 15th July, 1989. 3. On the basis of the aforementioned facts, FIR No. 512, dated 26.7.1989, under Section 7 of the Act, was registered at Police Station City Rohtak, against the appellant and his co-accused Gordhan, who has been acquitted by the trial Court. 4. In order to establish its case, the prosecution produced PW1-A.S. Dahiya, an Upper Division Clerk in the Income Tax Office, Rohtak. The partnership- deed was exhibited as Ex. PA. PW2-Balbir Singh, a Clerk in the office of District Food Controller, Rohtak proved Ex. PB, a licence, issued to the firm by the District Food Controller, Rohtak and renewed upto 31.3.1992. PW3- Chaman Lal, the officer, who conducted the checking/raid, deposed as to the facts of the commission of the offence. PW4-SI Duni Chand recorded the FIR, pursuant to a report, filed by Chaman Lal and investigated the case. PB, a licence, issued to the firm by the District Food Controller, Rohtak and renewed upto 31.3.1992. PW3- Chaman Lal, the officer, who conducted the checking/raid, deposed as to the facts of the commission of the offence. PW4-SI Duni Chand recorded the FIR, pursuant to a report, filed by Chaman Lal and investigated the case. He visited the premises of the firm on 26th and 27th July, 1989 but these premises were found locked. On 28.7.1989, Om Parkash, the appellant, met the Investigating Officer and produced the licence, stock register and the quantity of mustard oil and cakes. 5. After the conclusion of the prosecution evidence, the appellant and his co-accused were examined, under Section 313 of the Criminal Procedure Code They categorically denied the allegations, levelled by Chaman Lal, AFSO. They, however, accepted that 50 tonnes of mustard oil (7.5 quintals) and 75 quintals of mustard cakes were found in stock in the premises. They claimed false implication, as Chaman Lal had refused to return an amount of Rs. 500/-, advanced to him, by the appellant. They further stated that they had produced the stock register, licence, and oil cakes 26.7.1989 itself. No evidence was led by the appellant and his co-accused in defence. 6. On the basis of the evidence adduced and the arguments addressed, the Special Court, Rohtak acquitted co-accused-Gordhan but convicted and sentenced the appellant, as noticed herein before. 7. Counsel for the appellant contends that the judgment of the trial Court, convicting and sentencing the appellant, is inherently flawed, the alleged raid was conducted by Chaman Lal, AFSO, along with Inspector Ramesh Chander, both employees of the Department of District Food and Civil Supplies, Rohtak. The failure of the prosecution to examine Inspector Ramesh Chander, casts a serious doubt upon the veracity of the version, set out by the prosecution. In addition thereto, it is argued that the failure of the prosecution to associate an independent witness is another serious flaw that casts a shadow of doubt upon the version, set out by the prosecution. The alleged raid was conducted in a busy locality and, therefore, there could be no difficulty in associating an independent witness. The failure of the prosecution to associate an independent individual and its failure to even produce the Inspector, who allegedly accompanied Chaman Lal-PW3, is sufficient to set aside the judgment of the trial Court and acquit the appellant. 8. The alleged raid was conducted in a busy locality and, therefore, there could be no difficulty in associating an independent witness. The failure of the prosecution to associate an independent individual and its failure to even produce the Inspector, who allegedly accompanied Chaman Lal-PW3, is sufficient to set aside the judgment of the trial Court and acquit the appellant. 8. Another contention, pressed into service, is that the report, filed under Section 173 of the Criminal Procedure Code, was required to be filed, within a period of one year. Admittedly, it was filed after one year. Thus, the trial Court could not have taken cognizance of the offence. The findings, returned by the trial Court that the appellants case falls, under Section 7(1)(a)(ii) of the Act and imprisonment being seven years, there was no limitation for taking cognizance, is incorrect. 9. The last contention, pressed into service, by counsel for the appellant is that the trial Court has erred in placing reliance upon an alleged confession, made by the appellant. The said confession, being violative of the provisions of Section 24 of the Indian Evidence Act, could not have been relied upon by the trial Court. 10. Counsel for the respondent, on the other hand, contends that the judgment, passed by the trial Court, does not suffer from any illegality or irregularity and, therefore, the present appeal be dismissed. It is contended that as the appellant admitted his guilt, pursuant to Ex. PC, which was not denied, there was no need to examine Inspector Ramesh Chander, who allegedly accompanied Chaman Lal, AFSO, Rohtak, during the raid. It is further contended that the mere absence of an independent witness, is no ground to doubt the correctness of the raid In the facts and circumstances of the present case, the non-association of an independent witness would make no difference to the merits of the present controversy. 11. It is further argued that the admission, contained in Ex. PC, was sufficient to convict and sentence the appellant. The trial Court rightly placed reliance thereupon. It is further argued that the evidence on record is consistent and cogent and as the appellant has not led any evidence in defence, the present appeal be dismissed. 12. It is further argued that the trial Court rightly held that cognizance of the offence was not barred. The trial Court rightly placed reliance thereupon. It is further argued that the evidence on record is consistent and cogent and as the appellant has not led any evidence in defence, the present appeal be dismissed. 12. It is further argued that the trial Court rightly held that cognizance of the offence was not barred. A perusal of the provisions of Section 7 of the Act, in their entirety, is a complete answer to the argument, raised by counsel for the appellant that the trial Court could not have taken cognizance of the offence after the expiry of a period of one year. 13. I have heard learned counsel for the parties and perused the record. 14. On 26.7.1989, Chaman Lal, AFSO, Rohtak, accompanied by Ramesh Chander, Inspector of the Department, visited the business premises of the appellant. On checking, it was found that the board meant to display the stock and rate of mustard, mustard oil and cakes was lying blank. The appellant failed to produce any licence, the stock and the sale register, as also the cash memos. It was also discovered that the appellant had not filed any return for the fortnight ending 15.7.1989. The present FIR was lodged and the appellant proceeded against. The Investigating Officer, upon investigation, found the premises locked on 26th and 27th July, 1989. On 28.7.1989, the appellant produced the licence, the stock register and the quantity of mustard oil and cakes. In the meanwhile, the appellant recorded his statement Ex. PC admitting the aforementioned facts. The trial Court, after an appraisal of the evidence, recorded a finding that a perusal of the register, Ex. P1, revealed that the entries at pages 19 and 33 of the register, pertaining to the month of July, 1989, had been made at one and the same time. It also recorded a finding that there was no difference between the pen and the shade and, therefore, arrived at a conclusion that the appellant had manipulated the record. The trial Court also arrived at a finding that the names of the purchasers and the sellers were missing in most of the entries and, therefore, the appellant was guilty of violating condition Nos. 3, 8 and 10 of the licence Ex. PB. The trial Court also arrived at a finding that the names of the purchasers and the sellers were missing in most of the entries and, therefore, the appellant was guilty of violating condition Nos. 3, 8 and 10 of the licence Ex. PB. It also recorded a finding that as various conditions of the Control Order, as also the Act had been violated, the prosecution had successfully brought home the appellants guilt. 15. The first argument, advanced by counsel for the appellant, that the absence of an independent witness is fatal to the prosecution case, as the raid was conducted in a busy locality, in my considered opinion, does not warrant acceptance. The absence of an independent witness cannot be the sole circumstance upon which the veracity of the prosecution version can be doubted. The association of an independent witness, though desirable, absence thereof would, in the peculiar facts and circumstances of the present case, not be fatal to the prosecution case. Chaman Lal-PW3, who inspected the appellants premises, discovered serious violations of the mandatory provisions of the Essential Commodities Act, and the Control Order. He was subjected to a searching cross-examination and withstood the test of cross- examination. His statement is corroborated by other circumstances. The appellant, himself, wrote a communication, Ex. PC, admitting the material facts that constitute the offences, alleged against him. In this view of the matter, the absence of an independent witness would not, in any manner, impinge upon the veracity of the prosecution version. Even otherwise, no mala fides have been alleged or established against Chaman Lal-PW3. 16. Another contention, pressed into service, by counsel for the appellant that the confession, Ex. PC, allegedly suffered by the appellant, cannot be relied upon, being violative of the provisions of Section 24 of the Indian Evidence Act, cannot be accepted. Section 24 of the Indian Evidence Act bars reliance upon such confession, as is the result of an inducement, threat or promise or where the confession is made on an inducement that by making the confession, the accused would gain some advantage. A perusal of Ex. PC does not reveal the ingredients, set out in Section 24 of the Indian Evidence Act that would warrant the discarding of the document Ex. PC. During the course of his cross-examination, no question was directed to Chaman Lal, AFSO that the confession, Ex. A perusal of Ex. PC does not reveal the ingredients, set out in Section 24 of the Indian Evidence Act that would warrant the discarding of the document Ex. PC. During the course of his cross-examination, no question was directed to Chaman Lal, AFSO that the confession, Ex. PC, was extracted under threat, inducement or such promise, as is referred to in Section 24 of the Indian Evidence Act. In fact, in the cross-examination, it was suggested to Chaman Lal, AFSO, that the books etc. were with the Sales Tax Lawyer for filing of returns. Another significant fact is that during the statement, recorded under Section 313 of the Criminal Procedure Code, the appellant accepted the writing Ex.PC as correct, without demur or protest and did not seek to urge that Ex.PC was the result of any threat, inducement or promise. Thus, in my considered opinion, the document Ex.PC was rightly relied upon by the trial Court, for convicting and sentencing the appellant. A perusal of the document Ex.PC reveals that the appellant admitted the allegations, levelled against him, and requested for time to produce the relevant record. He also admitted that the board, meant to display the stock statement, was blank. Ex.PC is sufficient, in the circumstances of the present case, to corroborate the deposition of Chaman Lal-AFSO. As noticed herein before, after an appraisal of the record, maintained by the appellant, the trial Court recorded a categoric finding that a perusal of the register Ex. P1, allegedly maintained by the appellant, reveals that the entries made therein, as regards the relevant period, had been made at one and the same time. It also returned a finding that there was no difference between the pen and the shade of the ink and, therefore, rightly arrived at a conclusion that the record had been manipulated. The trial Court also noticed that the names of the purchasers and the sellers were missing in most of the entries and, therefore, the appellant was guilty of violating condition Nos. 3, 8 and 10 of his licence, Ex. PB. The failure of the prosecution to examine Inspector Ramesh Chander, would not detract from the correctness of the prosecution case in view of the facts, narrated hereinbefore. 17. 3, 8 and 10 of his licence, Ex. PB. The failure of the prosecution to examine Inspector Ramesh Chander, would not detract from the correctness of the prosecution case in view of the facts, narrated hereinbefore. 17. In view of the facts, enumerated above, I find no circumstance that would enable me to hold that the appellant was not guilty of the offences complained of. 18. Another contention, vehemently argued by counsel for the appellant, is that the report, under Section 173 of the Criminal Procedure Code was filed beyond a period of one year and, therefore, the trial Court erred in taking cognizance of the offence. The above contention could have been accepted if the offences had been those enumerated in Section 3(2)(h)(i) of the Act. However, as some of the offences pertain to offences other than those, enumerated in Section 3(2)(h)(i) of the Act, they would fall within the provision of Section 7(1)(a)(ii) of the Act, punishable upto seven years of imprisonment and, therefore, the trial Court did not commit any error in taking cognizance of the report, filed under Section 173 of the Criminal Procedure Code, beyond a period of one year. 19. In view of what has been stated above, I find no infirmity or illegality in the impugned judgment. Consequently, the present appeal is dismissed. Bail bonds, submitted by the appellant, are cancelled. The appellant be taken into custody forthwith to undergo the remaining sentence, if any. Appeal dismissed.