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2006 DIGILAW 1257 (PAT)

Rajesh Kr. @ Rajesh Kumar v. State Of Bihar

2006-12-15

L.P.SINGH

body2006
Judgment L.P.Singh, J. 1. The appellants Rajesh Kumar @ Rajesh Kumar Panjiyar and Dinesh Panjiyar have been convicted under Section 7 of the Essential Commodities Act and were sentenced to undergo R.I. for one year each. 2. The prosecution case, in short, is that the informant Baidya Nath Labh, Supply Inspector, Sadar Darbhanga alongwith Dina Nath Mandal, D.S.O., Darbhanga and Marketing Officer, Sri Shambhu Nath Prasad, inspected the shop of the accused-persons located at Gudari Bazar, Laheriasarai on 4.2.1988 at about 4.30 P.M. and recovered one sealed tin and one opened tin containing Palm oil from the shop of the accused-persons in presence of accused No. 1 Rajesh Kumar and two local witnesses Kishori Panjiyar and Pradeep Kumar, both local businessmen. It has been submitted that the quantity of Palm oil was measured and was found the sealed tin containing 15 kgs. of Palm oil and the opened tin containing 9 kgs. and 200 gms. of Palm oil. Accordingly, seizure list was prepared in presence of witnesses and accused Rajesh Kumar and all the members of the inspecting party. Further case of the prosecution is that papers and books of accounts for the possession of the Palm oil was asked for from the accused Rajesh Kumar who was present in the shop, but he could not give any satisfactory reply on the plea that the shop belonged to his elder brother Dinesh Panjiyar and he only was competent to disclose about the possession and the documents relating to the Trade article. The statement of accused Rajesh Kumar to that effect was also taken and recorded by the Supply Inspector, Baidya Nath Labh and was signed by the accused Rajesh Kumar. The Article seized was handed over to the custody of Kishori Panjiyar and a Zimmanama receipt was also prepared and signed by the recipient, Kishori Panjiyar. It has been alleged that the Palm oil was an imported oil and there was restriction of sale of the same in open market and that the same was to be sold only through Fair Price Shop and Bihar State Food Corporation. Accordingly, the prosecution report (Ext. 5) was prepared and submitted by the Supply Inspector, Baidya Nath Labh to the Officer-in-Charge of Laheriasarai P.S. The said report was forwarded to the District Supply Officer for institution and investigation. Accordingly, the prosecution report (Ext. 5) was prepared and submitted by the Supply Inspector, Baidya Nath Labh to the Officer-in-Charge of Laheriasarai P.S. The said report was forwarded to the District Supply Officer for institution and investigation. On receipt of the prosecution report the Police of Laheriasarai Police Station recorded the formal F.l.R. of Laheriasarai P.S. Case No. 32/88 (Ext. 6) and took up investigation of the case. After completion of the investigation charge-sheet was submitted and accordingly, cognizance was taken and appellants were tried by learned Special Judge, Darbhanga. 3. The appellants pleaded not guilty and have stated that they have falsely been implicated in this case. 4. The prosecution in support of its case examined altogether eight witnesses. 5. P.W. 1 is Kishori Panjiyar, seizure witness. P.W. 2 is Pradeep Kumar, seizure witness. P.W. 3 is Shambhu Nath Pd., Supply Inspector. P.W. 4 is Baidya Nath Labh, the informant Supply Inspector. P.W. 5 is Bedanand Jha, the A.S.I. of Laheriasarai Police Station. P.W. 6 Bhola Paswan is orderly peon of the District Supply Officer. P.W. 7 is Dina Nath Mandal, D.S.O., Sader, Darbhanga. P.W. 8 is Ganga Pd. Jha, Advocates Clerk. He has proved signature of Ram Ballabh Singh, S.I. and F.l.R. registered by R.K. Verma, Officer-in-Charge (Ext. 6) and also contents of case diary 1 to 50 page (Ext. 7). 6. P.W. 1 Kishori Panjiyar has stated that the recovery was not made in his presence and that he cannot say as to what article was there in both the tins. 7. P.W. 2 Pradeep Kumar has also stated that he did not know shop of the appellants. 8. P.Ws. 3, 4 and 7 have stated that the search and seizure of Palm oil from the shop of appellant no. 2 was done in presence of P.Ws. 1 and 2, the seizure witnesses. 9. P.W. 4 is Baidya Nath Labh, the informant, Supply Inspector. He has supported the case of prosecution as stated in his prosecution report. According to him, Palm oil is an imported edible oil and it is not sold in open market and the same is to be sold through Fair Price Shop and Bihar State Food Corporation. He has . stated that the shop of the appellant no. 1 Rajesh Kumar was inspected by him in presence of two local witnesses, namely, Kishori Panjiyar and Pradeep Kumar, both local businessmen. He has . stated that the shop of the appellant no. 1 Rajesh Kumar was inspected by him in presence of two local witnesses, namely, Kishori Panjiyar and Pradeep Kumar, both local businessmen. He has also stated that the quantity of the Palm oil so re-covered was measured and was found that on sealed tin was containing 15 kgs. I of Palm oil and the open tin contained 9 kgs. and 200 gms. of Palm oil. He has stated that he prepared seizure list (Ext. 3) in presence of the witnesses and accused Rajesh Kumar and all the members of the raiding party. He has stated that the appellants are dealer of edible oil. According to him, the appellant Rajesh Kumar could not produce papers and documents relating to Palm oils and his statement was recorded in writing in connection with the same. According to him, a copy of the seizure list was handed over to the appellant Rajesh Kumar and articles so seized were handed over to Kishori Panjiyar for safe custody and a Zimmanama was also executed by the recipient to that effect. According to him the prosecution report was submitted to the local police Laheriasarai and forwarded the same for institution and investigation of the case. He has also proved the seizure list (Ext. 3) and Zimmanama receipt (Ext. 4). He has also proved the signature of Dinanath Mandal (Ext. 1/1) appearing over the forwarding letter sent to the Police for prosecution of the accused. 10. P.W. 6 Bhola Paswan, orderly peon of the District Supply Officer has also supported the search and seizure made in his presence and has also proved his signature (Ext. 1/2) appearing in the seizure list. 11. P.W. 7 Dina Nath Mandal, District Supply Officer has also supported the case as stated in the prosecution report of the informant P.W. 4. According to him, he alongwith others also inspected the shop of Dinesh Panjiyar. The shop belonged to him but his brother Rajesh Kumar was running the shop at that moment. At the time of inspection he found two tins of Palm oil. The appellant Rajesh Kumar did not show any licence for dealing with the imported Palm oil so recovered. 12. P.W. 8 Ganga Pd. Jha is a formal witness. He has proved the signature of Ram Ballabh Singh and writing of R.K. Verma (Ext. 6). At the time of inspection he found two tins of Palm oil. The appellant Rajesh Kumar did not show any licence for dealing with the imported Palm oil so recovered. 12. P.W. 8 Ganga Pd. Jha is a formal witness. He has proved the signature of Ram Ballabh Singh and writing of R.K. Verma (Ext. 6). He has also proved contents of case diary from page 1 to 50 (Ext. 7). 13. Learned counsel for the appellant has submitted that the alleged oil which was seized was not sent for chemical examination, as such it was not proved that whether it was Palm oil or other oil. As such, the conviction under Section 7 of the Essential Commodities Act is not sustainable in eye of law and the appellants should be acquitted. The oil which was seized was also not produced in the Court below. P.W. 4 in para 13 of his deposition has stated that he could not say where the oil has been kept at present. 14. On the perusal of the evidence of the witnesses including all members of the raiding party it appears that they have unanimously stated that the Palm oil in question was an imported oil and that for the sale of the same in open market was prohibited and that the same should be sold only through the Bihar State Food Corporation and the Public Distribution System. Basic point raised is whether prosecution could prove that the same was Palm oil or not. Though it appears from the deposition of P.W. 9 that he has taken sample from both the containers but he does not remember whether it was sent for chemical examination or not. It shows that no chemical examination was done and in this respect, report of the chemical examination has not been produced in the Court. That apart, neither the seized article was produced in the court nor it could be proved that whether seized oil was Palm oil or not. Learned counsel for the appellant has submitted that it was another edible oil for which appellants had licence to trade. This part of not producing the chemical report or any proof has lacuna on the part of the prosecution. Learned counsel for the appellant has submitted that it was another edible oil for which appellants had licence to trade. This part of not producing the chemical report or any proof has lacuna on the part of the prosecution. As such it would not be proper to convict the appellants for black marketing of the Palm oil under Section 7 of the Essential Commodities Act as existence of Palm was not proved. 15. Accordingly, the conviction and sentence passed by the Court below are set aside and they are acquitted of the charges levelled against them. They are set at liberty. 16. In the result, this appeal is allowed.