Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 386 (GAU)

Swatinath and Anr. v. State of Assam

2006-04-25

H.N.SARMA

body2006
1. This appeal arises out of a Judgment and Order dated 26.5.1998 passed by the learned Sessions Judge, Kamrup in Special Case No, 13/95 by which the appellants were convicted under section 7 of the Essential Commodities Act ('the Act') and sentenced them to undergo SI for three months and to pay fine of Rs. 1,000 each in default to undergo further SI for two months. 2. The prosecution case, inter alia, in brief is that the appellant No 1, Smt. Swati Nath, is the mother of the appellant No 2 and both of them had run a Gas Agency at Kalapahar area in Guwahati under the name and style "M/s. Gauri Gas Agency" for distribution of LP Gas cylinders. On receipt of public complaints regarding irregularities in distribution and deprivation of genuine customers from getting Gas cylinders along with various other anomalies, PW- 1, Shri Kinaram Das, Inspector of Food and Civil Supplies, along with PW2, Manjushree Das, PWS, Fazal Kader, another Sub-Inspector of Food and Civil Supplies and PW4, Rajiv Prakash Baruah, Sr, EDO had made a surprise visit in the Gauri Gas Agency on 12.1.1994. The aforesaid team of Officers on inspection of the Gas Agency found that 300 Gas cylinders shown to have sold to fictitious customers and 185 Gas cylinders were distributed to some persons by issuing some fictitious cash memos. As regards the distribution of 185 Gas cylinders, PW1, Kinaram Das, found that the signatures in cash memos are of similar nature. PW1 in presence of other PWs including PWS, an independent witness, seized the aforesaid Gas cylinders along with Stock Register and gave those to the zimma of the appellant No. 2. On 27.5.1994, PW1 along with the team again visited the said Gas Agency of the appellants and seized one Stock Register vide Ext. 5 seizure list and two Customer Booking Registers, some cash memos, seven filled cylinders, 36 defective cylinders and 36 consumer history cards. After seizing the cylinders and other connected documents and after obtaining necessary prosecution sanction from the concerned authority, PW1 had lodged the complaint by submitting offence report against the appellants under the provisions of the Act having found a prima facie case against the appellants on the basis of which the Special Case No. 13/95 was registered. 3. After seizing the cylinders and other connected documents and after obtaining necessary prosecution sanction from the concerned authority, PW1 had lodged the complaint by submitting offence report against the appellants under the provisions of the Act having found a prima facie case against the appellants on the basis of which the Special Case No. 13/95 was registered. 3. In the offence report it is alleged that the appellants had violated the provisions of clauses 10, 15, 17 and 20 of the Assam Trade Articles [Licensing and Control Order, 1982, ('Control Order') and terms and conditions of the license issued to the appellants as well as provisions of Clauses 7,8 and 9 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 and, therefore, the appellants are guilty for the offence punishable under section 7(i)(a)(ii) of the Act. 4. Process having been issued, the appellants appeared before the learned trial court on 21.2.1997 and on such appearance offences were explained to them. Along with the present appellants, the firm M/s. Gauri Gas Agency and Shri Ratan Giri, the husband of the appellant No. 1, were also implicated. But the learned Special Judge not having found any prima facie case against them they were discharged. The learned Special Judge has also found that the said firm M/s. Gauri Gas Agency is a proprietorial concern and Smt. Swati Nath being the Proprietor of the firm and having been implicated in the offence as an accused, the firm was not required to be separately impleaded. The said order dated 21.2.1997 further discloses that the appellant No. 2 who is the son of the appellant No. 1 has been managing the business during the relevant time. Offence punishable under section 7(l)(a)(ii) of the Act for violation of clauses 10, 15, 17 and 20 of the Order, terms and conditions of the license as well as clauses 7, 8 and 9 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993, having been explained to the appellants, they pleaded not guilty. 5. During the course of the trial, the prosecution examined as many as seven witnesses to substantiate the prosecution case out of which PW l, Kinaram Das is the Inspector of Food and civil Supplies and complainant, PW6, is Shri G.D. Laskar, an Executive Magistrate, Guwahati. 5. During the course of the trial, the prosecution examined as many as seven witnesses to substantiate the prosecution case out of which PW l, Kinaram Das is the Inspector of Food and civil Supplies and complainant, PW6, is Shri G.D. Laskar, an Executive Magistrate, Guwahati. All these prosecution witnesses were duly cross-examined by the defence and after completion of the prosecution evidence, the accused appellants were examined under section 313, Cr. PC, giving them opportunity to comment on the circumstances that were unfolded against them during the examination of the prosecution witnesses. The defence examined no witness in support of their plea. 6. After consideration of the evidence and materials on record, the learned Special Judge found the accused appellants guilty for violation of clauses 10, 15,17 and 20 of the Order read with clauses 7, 8 and 9 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 rendering them liable to be punished under section 7(i)(a)(ii) of the Act and accordingly, convicted them in the manner as aforesaid after giving all opportunity of hearing including the quantum of punishment vide Judgment and Order dated 26.5.1998. 7. Challenging the aforesaid conviction and sentences, the present appeal has been filed. 8. I have heard Mr. J.M. Choudhury, learned senior counsel for the appellants and Mr. P.C. Gayan, learned PP, Assam. 9. At the outset it is submitted by Mr. Choudhury that during the pendency of the appeal, the appellant No. 1, Swati Nath, has expired and accordingly, in view of the provisions of section 394(2), Cr. PC, the appeal against the appellant No. 1 has been abetted as no application from any of her relations has been filed for continuance of the appeal has been filed. 10. Although various grounds have been urged in the memorandum of appeal, Mr. Choudhury confines his arguments only to the point that the appellant No, 2 not being the proprietor of M/s. Gauri Gas Agency, the learned trial court ought not to have convicted him, more particularly, in the absence of specific evidence regarding the part played by him in the commission of the alleged offence and no other points have been urged during the course of the hearing by the learned counsel for the appellant. 11. 11. The learned Public Prosecutor, Assam, on the other hand, submitted that although the appellant No. 1 was the proprietor of M/s. Gauri Gas Agency, the appellant No. 2, who is the son of the appellant No. 1, in fact, managed the affairs of the firm and, as such, under the provisions of law he is equally liable and has rightly been convicted by the learned Special Judge on having been found his involvement in the offence. 12. I have considered the rival submissions made by the learned counsel for the parties. I have also perused the connected materials and evidence on record. 13. On the allegations as highlighted, PW l, the Inspector of Food and Civil Supplies, submitted the offence report against the appellants vide Ext. 13. In support of which the prosecution examined as many as seven witnesses, 14. The complainant, Kinaram Das, was examined as PW l, who was the Inspector of Food and Civil Supplies during the relevant time. In' his deposition he stated, inter alia, that on 12.1.1994 he was working as the Inspector of Food and Civil Supplies, Guwahati and on that date he along with Shri Rajiv Prakash Baruah, the Executive Magistrate, Fazal Kader, another Sub-Inspector of Food and Civil Supplies, searched the premises of M/s. Gauri Gas Agency, Kalapahar, Guwahati and noticed out side the shop a notice with writing "No Gas". There was also a display Board but the same was not up dated. On physical verification they did not find refilled Gas cylinders out of those 47 were defective and 380 empty Gas cylinders, Ext. 1, is the copy of the Delivery Challan-ewm-Invoice as per which 300 Gas cylinders were received from Indian Oil Corporation Ltd. He further stated that the proprietor could not explain to whom those 300 Gas cylinders were delivered. Further although 180 Gas cylinders were shown delivered to different persons their names, addresses, etc. could not be provided. The Stock Register was also seized vide Ext-2, which shows that there is no entry in the Stock Register. Again on 27.5.1994 the said Gas Agency was inspected and vide Ext. 5 another register was seized. He further stated that on that date he seized Account Book Register, two Cash Memo Khatas, true copy of the price list, a notice, which was fixed in the Board. The statement of appellant No. 2 was also recorded. Again on 27.5.1994 the said Gas Agency was inspected and vide Ext. 5 another register was seized. He further stated that on that date he seized Account Book Register, two Cash Memo Khatas, true copy of the price list, a notice, which was fixed in the Board. The statement of appellant No. 2 was also recorded. He further stated that swen filled cylinders, 36 defective cylinders and 36 consumer history cards were also seized. Ext. 5(4) is his signature. He also stated that at the time of inspection the Stock Register was not upto date. On 27.5.1994 a Delivery Challan with Invoice was also seized vide Ext. 9. On that date he did not find upto date price list. The seized cylinders were given to the zimma of the appellant No. 2, the son of the appellant No. 1, vide Ext. 4 and Ext, 4(4) is the signature of the appellant No. 2. He further stated that after inspection a tally sheet was prepared vide Ext. 2. On 27.5.1994 the statement of Probindra Nath was recorded vide Ext. 11. This witness further proved the other Exts. He also stated that on 12.1.1994 the appellant No. 2 gave a declaration and Ext. 10 is the said declaration ; Ext. 10(1) is the signature of the appellant No. 2. He stated that vide Ext. 13 the offence report was prepared and submitted to the court. In cross-examination this witness stated, inter alia, that enquiry was made on receipt of anonymous complaints. He also stated that at the time of delivery of goods their full name and address should be mentioned. There is no rule that the cash memo must contain the signature of the consumer. He stated that when he visited the Gas Agency, he found shortage of the cylinders and also received complaints to that effect. In the display Board stock was mentioned there. Sale Register was to be closed at the evening. He further stated that the appellants could not produce documents of home delivery. He also stated that when they visited the Gas Agency they found queue of consumers for getting the cylinders. He has denied the suggestions that the seizure was not made in accordance with law. This witness has also denied further suggestion that the appellants did not make any confessional statement and he has obtained the signature forcefully. 15. He also stated that when they visited the Gas Agency they found queue of consumers for getting the cylinders. He has denied the suggestions that the seizure was not made in accordance with law. This witness has also denied further suggestion that the appellants did not make any confessional statement and he has obtained the signature forcefully. 15. PW2, Manjushree Das, the Executive Magistrate, Guwahati, stated, inter alia, that on 12.1.1994, he accompanied the officers of Supply Department as per order of the Deputy Commissioner, Guwahati and inspected the premises and go-down of M/s. Gauri Gas Agency wherein they found a notice written as "No Gas". A tally sheet was prepared and Ext. 2 is the said tally sheet and Ext. 2(1) is his signature. This witness was not cross-examined by defence. PW3, Fazal Kader, is the Sub-Inspector of Food and Civil Supplies, who stated, inter alia, that on 12.1.1994 he along with Shri Rajiv Prakash Baruah, the Executive Magistrate and Smt. Mazumdar, Inspector Kinaram Das went to M/s. Gauri Gas Agency wherein they found the stock of gas shown as "Nil". These witnesses also proved the seizure vide Ext. 3 and he also stated that empty LP Gas cylinders and defective cylinders were seized and given to the zimma of the appellant No. 2. After verification of the go-down, Ext. 2 tally sheet was prepared. In cross-examination, this witness stated, inter alia, that during the relevant period there was scarcity of Gas. He also stated that at the time of checking the appellants could not submit any document relating to home delivery. PW4 is Rajiv Prakash Baruah who was the Executive Magistrate, Guwahati, at the relevant time. He stated, inter alia, that on 12.1.1994 he accompanied with the Supply Inspector, Kinaram Das and went to M/s. Gauri Gas Agency, Kalapahar, Guwahati and the Inspector seized certain books of account, empty cylinders, cash memos as detailed in Exts. 3 and 5. The seized cylinders were given zimma vide Ext. 4 and Ext. 4(2) e is his signature. The extract of notice was also seized vide Ext. 6 and exact copy of the notice on the display Board was also prepared by the Inspector vide Ext. 7 and Ext. 7(1) is his signature. This witness was not cross-examined. 3 and 5. The seized cylinders were given zimma vide Ext. 4 and Ext. 4(2) e is his signature. The extract of notice was also seized vide Ext. 6 and exact copy of the notice on the display Board was also prepared by the Inspector vide Ext. 7 and Ext. 7(1) is his signature. This witness was not cross-examined. PW5, Jadu Bhushan Saha, who is a neighbour, confirmed the inspection and search by the personnel of Supply Department to the premises of M/s. Gauri Gas Agency and proved Ext. 5 and Ext. 8 wherein he was a witness. This witness was also not cross-examined. PW6 is G.D. Laskar who was an Executive Magistrate at Guwahati during the relevant time. He also corroborated the inspection and seizure and proved the seizure vide g Ext. 5. This witness was also not cross-examined on material particulars by the defence. 16. After examination of the prosecution witnesses, the accused appellants were examined under section 313, Cr. PC, and the circumstances that appeared against them as per the statements of the witnesses were put to them to which they denied. It would be relevant to note herein that the accused appellant No. 2, was put a question that the evidence adduced against him to the effect that on 12.1.1994 and prior to that he was the owner of M/s. Gauri Gas Agency situated at Kalapahar, Guwahati and what was his reply to this question and then he answered in affirmative and stated that he run and managed the Gas Agency. He also admitted the seizure made by the inspecting staff. But he denied the allegations stating that all the witnesses have lied. 17. In the instant case, after inspection of M/s. Gauri Gas Agency premises, the complainants prepared offence report vide Ext,13. Vide Ext. 3 two stock registers, two refilled registers, one Cash Memo Book, two home delivery Cash Memo Books, one empty cylinder register, 37 defective cylinders, two delivery challan, one photo copy of trade license and 10 bundles of Cash Memo Receipts were seized in presence of Shri Rajiv Prakash Baruah, the Executive Magistrate. Vide Ext. 3 two stock registers, two refilled registers, one Cash Memo Book, two home delivery Cash Memo Books, one empty cylinder register, 37 defective cylinders, two delivery challan, one photo copy of trade license and 10 bundles of Cash Memo Receipts were seized in presence of Shri Rajiv Prakash Baruah, the Executive Magistrate. Similarly vide Ext, 5 one Stock Register, two Booking Registers, two Cash Memo Books, one true copy of the Board's list and stock of the Gas agency one true copy of the Notice Board dated 27.5.1994, one copy of the deposition interrogation obtained from the proprietor of M/s Gauri Gas Agency, seven full cylinders, 46 domestic use defective cylinders, 36 Indane Consumer History Cards were also seized in presence of Shri Rajiv Prakash Baruah, the Executive Magistrate. Vide Ext. 8 seven filled cylinders and 46 domestic empty cylinders were given zimma. Vide Ext. 10 the appellant No. 2 gave declaration that he could not produce documents relating to Home Delivery of Gas cylinders. Vide Ext. 11 the prosecution-also proved during the course of interrogation that the appellant No. 2 admitted that he is the son of the appellant No. 1 (who is his mother) and he rendered the work lifting and delivery of Gas cylinders and all other works relating to the management of the Gas Agency. The prosecution also proved the sanction to prosecute the appellants, granted by the Deputy Commissioner, Kamrup, vide Ext. 12. 18. The learned Special Judge while passing the impugned Judgment took into consideration at the relevant factors including the evidence of prosecution witnesses as well as the seized documents and came to the conclusion that the appellants have neither distributed the Gas cylinders as per procedure prescribed under the Control Order nor maintained the accounts properly and found that the prosecution had succeeded in establishing the guilt against them beyond reasonable doubt and accordingly, convicted and sentenced them in the manner as aforesaid. 19. In order to appreciate the submission of Mr. Choudhury that admittedly the appellant No. 1 being the proprietor of M/s. Guari Gas Agency who is the mother of the appellant No. 2, if any offence is committed the liability would go to the appellant No. 1 and not to the appellant No. 2, we have to look into the nature of the statutory Control Order to find out the liability of the appellant No. 2. The Assam Trade Articles (Licensing and Control) Order, 1982, was promulgated in exercise of the powers conferred under section 3 of the Essential Commodities Act, 1955, read with the Order of the Government of India in the Ministry of Agriculture and Irrigation Department (Department of Food) published under GSR No. 800, dated 9th June, 1978, by the Governor of Assam. The relevant provision of the Control , Order relating to contravention of condition of license of the Order is quoted herein below : "10. Contravention of condition of license. - No holder of license issued under this Order or his agent or servant or any other person acting on his behalf shall contravene any of the terms and conditions of the license,". 20. There are sufficient evidence on record to show that although the appellant No. 1 was the owner of the firm, the appellant No. 2 who is the son of appellant No. 1, is/was managing the affairs of M/s. Gauri Gas Agency and when the circumstances and evidence that appeared against the appellant was put to him during the course of examination d under section 313, Cr. PC, it was admitted by him that he manages the affairs of the said Gas Agency on behalf of his mother. Thus, there is no dispute to the fact regarding part played by the appellant No. 2 is managing the affairs of the business of the Gas Agency and accordingly, the provisions of clause 10 of the Control Order squarely attracted e against him, he being the agent of the proprietor and is/was acting on behalf of the proprietor in managing the affairs of the Gas Agency. The aforesaid clause 10 is of wide amplitude and inclusive one. The prohibition contained therein is extended to an agent or servant or any other person acting on behalf of the owner. Materials available on f records, more particularly, the admission of this fact by the appellant No. 2 during his examination under section 313, Cr. PC, excludes any other explanation or hypothesis that there would be no liability for contravention of the provisions of the Order by the appellant No. 2, although he is not the owner of the firm. Under these circumstances, g submissions made by Mr. Choudhury are not well founded and hence, the same is rejected. PC, excludes any other explanation or hypothesis that there would be no liability for contravention of the provisions of the Order by the appellant No. 2, although he is not the owner of the firm. Under these circumstances, g submissions made by Mr. Choudhury are not well founded and hence, the same is rejected. The learned Special Judge considered all the relevant materials available on record and found the appellants guilty under the aforesaid provisions of law and convicted and sentenced them for violation of section 7 of the Act and no ground for interference with the same could be shown in the appeal. 21. In view of the aforesaid discussions, I do not find any merit in this appeal and accordingly, the same stands dismissed. The interim order passed by this Court in Criminal Miscellaneous Case No. 142/1998 suspending the sentences against the appellants stand vacated. The appellant No. 2 is directed to surrender before the learned trial court to serve out the sentence. Registry shall send down the LCRs forthwith.