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2006 DIGILAW 253 (GAU)

Amal Chandra Kalita v. State of Assam

2006-03-17

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. This Criminal Appeal is directed against the judgment and order dated 21.1.1998 passed by the learned Special Judge, Kamrup, Guwahati in Special Case No. 5 of 1995 convicting the accused-appellants under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955. The accused-appellants have been sentenced to undergo S.I. for 3 months and to pay a fine of Rs. 3,000 each, in default to suffer S.I. for a period of another one month more. 2. The case of the prosecution, in short, is that on 9.3.1995, PW 1 Kalyan Borthakur, Inspector of Food and Civil Supplies, Guwahati, along with other officers and staff of the department, visited the premises of M/s. Aahar Restaurant located at G.S. Road, Ganeshguri. The accused-appellant No. 1 is the owner of the aforesaid restaurant whereas the accused-appellant No. 2 is the manager. In course of the said visit, P.W. 1 found domestic L.P.G. Cylinders being used in the premises of the restaurant. According to the prosecution, the accused persons were unable to produce any document regarding the use/possession of the LPG Domestic Cylinders along with other apparatus like valves, regulators, rubber pipes, etc. The further case of the prosecution is that the accused persons were also unable to produce any document to show that the LPG Cylinders and the connected apparatus were obtained from authorised sources. Accordingly, PW 1 seized 3(three) filled in and one empty domestic LPG Cylinders, 3 valves and 3 regulators vide seizure list (Ext. 1). The aforesaid seizure was made in the presence of P.Ws. 3 and 4, who were witnesses to the seizure made. According to the prosecution, on the same day, the statements of both the accused persons were recorded, which statements were exhibited in course of the trial as Exts. 3 and 4. The seized articles were given in the custody of PW 2 (Tularam Muchahari). Thereafter, offence report (Ext. 5) was filed in the Court against the accused-appellants and after sanction for prosecution (Ext. 6) was obtained from the competent authority. Special Case No. 5/1995 was registered before the learned trial Court. Thereafter, charge under Section 7(i)(a)(ii) of the Essential Commodities Act was framed against the accused-appellants for contravention of the provisions of Clause 3(i)(b) and Clause 6(i)(c) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. 6) was obtained from the competent authority. Special Case No. 5/1995 was registered before the learned trial Court. Thereafter, charge under Section 7(i)(a)(ii) of the Essential Commodities Act was framed against the accused-appellants for contravention of the provisions of Clause 3(i)(b) and Clause 6(i)(c) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. The accused-appellants having pleaded not guilty, the trial commenced, in course of which 4 witnesses were examined by the prosecution, who had also proved a large number of documents. After recording of the prosecution witnesses was over, the statements of the accused under Section 313 Cr.P.C. were recorded. No evidence was adduced by the defence. At the conclusion of the trial, the accused-appellants have been convicted and sentenced, as aforesaid. Aggrieved, the present appeal has been filed. 3. The evidence of the prosecution, as unfolded by the witnesses examined on its behalf, may be briefly noticed at this stage. PW 1, Kalyan Borthakur in his deposition has stated that in the morning of 9.3.1995 he along with his supporting staff had visited the premises of M/s. Aahar Restaurant and found domestic LPG Cylinders being used in the hotel. The accused-appellant Nos. 1 and 2 identified themselves as the owner and manager of the restaurant. According to P.W. 1, as the accused persons could not produce any document to show that they were authorised to use the domestic LPG Cylinders in the restaurant arid further as the accused persons could not produce any document to show that they had procured the LPG Cylinders from authorized sources, PW 1, after preparing a seizure memo had seized the 3 filled in LPG Cylinders along with one empty cylinder together with three valves and 3 regulators. P.W. 1 has deposed that P.Ws. 3 and 4 were witnesses to the seizure, who had signed the seizure memo. He has also deposed with regard to handing over of the cylinders in the zimma of PW 2 and the recording of the statements of the two accused persons (Exts. 3 and 4). PW 1 has also proved the offence report Ext.5 filed in the case as well as the sanction for prosecution (Ext. 6), received from the competent authority. P.W. 2, Tularam Muchahari, was at the relevant point of time working as an Assistant Manager of one M/s. Hansa Gas Agency. 3 and 4). PW 1 has also proved the offence report Ext.5 filed in the case as well as the sanction for prosecution (Ext. 6), received from the competent authority. P.W. 2, Tularam Muchahari, was at the relevant point of time working as an Assistant Manager of one M/s. Hansa Gas Agency. He has deposed that on the date of the incident while he was coming towards the restaurant, he was called by one Inspector and thereafter he was given zimma of the seized cylinders along with the regulators. P.Ws. 3 and 4 are independent witnesses, who had deposed with regard to the seizure. Both the aforesaid witnesses, i.e., P.Ws. 3 and 4 have deposed that the seizure had taken place in their presence and that they had signed on the seizure memo which signatures were duly identified by the two witnesses in question. 4. After noticing the core of the oral evidence adduced by the prosecution witnesses, the Court may briefly notice the contents of the statements of the accused persons recorded on the date of the incident, which have been exhibited as Exts. 3 and 4 in the case. The aforesaid statements were recorded in course of the interrogation of the accused persons on the very day of the occurrence. In the statement of the accused No. 1, he has stated that he had obtained the domestic LPG Cylinders from some friends, whose names and particulars he was not in a position to furnish immediately. The accused-appellant No. 2 has stated that as he was the manager he was unable to say the source from which the LPG Cylinders were obtained by the owner. The accused-appellants in course of the statements recorded under Section 313 Cr.P.C. have, however, stated that Exts. 3 and 4 were not prepared in their presence and only their signatures were taken in blank papers. It is on the basis of the above evidence that the Court would now be required to judge the culpability of the accused-appellant for the offences alleged against them and in respect of which they have been convicted by the learned trial Court. 5. Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 makes any contravention of a Control Order framed under Section 3 of the Act punishable for a term, which is not to be less than 3 months, but which may extend to 7 years along with fine. 5. Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 makes any contravention of a Control Order framed under Section 3 of the Act punishable for a term, which is not to be less than 3 months, but which may extend to 7 years along with fine. The charge against the accused-appellants is that they had contravened Clause 3(i)(b) and 6(i)(c) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. The aforesaid Control order has been framed in exercise of powers under Section 3 of the Essential Commodities Act, 1955. Clause 3(1)(b) and 6(i)(c) in respect of which contravention has been alleged and found to have been proved by the learned trial Court may be set out hereunder: 3. Restriction on possession, supply and consumption of liquefied petroleum gas. - (1) Where a person has been granted a connection for liquefied petroleum gas under the public distribution system then he shall not: (b) possess or use liquefied petroleum gas filled in cylinders or in bulk, unless he has received that supply from a Government Oil Company or a distributor authorised by a Government Oil Company; 6. Possession, supply or sale of liquefied petroleum gas equipments. - (1) No person shall - (c) possess filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a Government Oil Company or a parallel marketeer. 6. From the above provisions of the Control Order, it is evident that no person can possess or use liquefied petroleum gas filled in cylinder unless he has received such supply from a distributor or Government Oil Company. Similarly, under Clause 6(1)(c), no person can possess a cylinder, valve or regulator unless he is a consumer and the same has been supplied to him by an oil company or authorised marketeer. 7. In the present case, the evidence of PW 1 clearly demonstrates that on 9.3.1995, domestic LPG cylinders were found in use in the premises of the restaurant. Such use was with the aid of valves, regulators and other apparatus. The accused-appellant Nos. 1 and 2 are the owner and manager of the restaurant, respectively. 7. In the present case, the evidence of PW 1 clearly demonstrates that on 9.3.1995, domestic LPG cylinders were found in use in the premises of the restaurant. Such use was with the aid of valves, regulators and other apparatus. The accused-appellant Nos. 1 and 2 are the owner and manager of the restaurant, respectively. The evidence of P.W. 1 further establishes that the accused-appellants were unable to produce any document to show that they had obtained the LPG cylinders and connected apparatus from any authorised source as contemplated by the Control Order. The accused-appellants were unable to produce any document to show that they were authorised consumer. In such a situation, the LPG Cylinders (3 filled in and one empty) along with the valves and regulators were seized by P.W. 1 and such seizure was in the presence of P.Ws. 3 and 4, who are independent persons. Thereafter, the statements of the accused-appellants were recorded in course of which the accused No. 1, i.e., the owner stated that he had received the cylinders from some friends but he was unable to give the names and addresses of such friends. The accused No. 2 in his statement had stated that he is unaware of the source from which the cylinders were brought as the same were brought by the owner. 8. The learned Special Judge, on a consideration of the evidence adduced by the prosecution, took the view that as the accused persons were found in possession of the cylinders and other connected apparatus and they were unable to satisfactorily explain such possession by producing any valid document, the seizure which was made in accordance with the provisions of the Code of Criminal Procedure, would be sufficient to attract the liability of the accused persons. The learned Court below also took the view that the statements of the accused, i.e., Exts. 3 and 4 were in the nature of extra judicial confessions and that the said statements could be relied upon as corroborative evidence of the illegal possession, inasmuch as, in Ext.3 it is admitted by the owner (accused No. 1) that such cylinders were in use in the restaurant and that he had obtained the same from his friends without, however, being able to name such friends or by producing any valid document in respect of the cylinders and other apparatus. 9. 9. Section 10(c) of the Essential Commodities Act enables the Court to presume the existence of a culpable mental state on the part of an accused person in a prosecution for an offence under the Act, which requires such culpable mental state. Thereafter, the burden shifts to the accused to prove that no such culpable mental state had existed. The Explanation to Section 10(c) of the Act makes it clear that culpable mental state includes intention, motive, knowledge of a fact as well as belief in or reason to believe such a fact. Section 10(c), which was inserted in the Essential Commodities Act by Act 30 of 1974 with effect from 22.6.1974 carves out an exception to the normal rule, i.e., that it is the burden of the prosecution to bring home the offence alleged against the accused, by permitting a presumption of the necessary culpable mental state and by casting upon the accused the burden of proving that such mental state did not exist. In a prosecution for an alleged contravention of the provisions of the Control Order with regard to possession and use of domestic LPG cylinders and connected apparatus, knowledge of the accused of his possession being unauthorized has to be established. In other words, proof of a culpable mental state of the accused would be an indispensable requirement to bring home the offence of contravention as alleged. Section 10(c) of the Act having permitted presumption of such culpable mental state, it is for the accused to prove the non-existence thereof by adducing clear and cogent evidence. In the present case, the prosecution evidence has clearly established that the accused persons were in possession of 3 filled in and one empty LPG cylinders along with apparatus, which were in use in the restaurant at the time when such use was detected. The prosecution has also proved that the accused-appellants were unable to satisfactorily explain such possession or the fact that they had obtained the cylinders and other connected apparatus from an authorized distributor or a Government Oil Company. On proof of the aforesaid facts being laid by the prosecution, the burden of establishing that possession and use of the cylinders and connected apparatus was on the basis of valid documents rested on the defence by operation of Section 10(c) of the Act. On proof of the aforesaid facts being laid by the prosecution, the burden of establishing that possession and use of the cylinders and connected apparatus was on the basis of valid documents rested on the defence by operation of Section 10(c) of the Act. In a situation, where the defence did not adduce any evidence, it cannot be said that the burden cast upon the defence by Section 10(c) of the Act was, in any manner, discharged by the defence. The culpability of the accused-appellants is apparent from the above facts and viewed from the aforesaid perspective, the statements made by the accused under Section 313 Cr.P.C. denying the authenticity of Exts. 3 and 4 would hardly be relevant. The question as to whether Exts. 3 and 4 can in law amount to an extra judicial confession and the further question of the said statements being in the nature of corroborative evidence on which much discussion has been recorded by the learned trial Court giving rise to elaborate arguments on behalf of the accused-appellants, in the considered view of the Court, is really an academic issue. 10. For all the aforesaid reasons, I am of the view that the prosecution, in the present case, has succeeded in bringing home the charges brought against the accused-appellants. Accordingly I dismiss the appeal and affirm the conviction and sentence recorded by the learned trial Court. The accused-appellants shall forthwith surrender and serve out the sentence. Their bail bonds are cancelled and the sureties furnished by them stand discharged. Appeal dismissed