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2007 DIGILAW 1012 (PAT)

Chhabila Sah v. State Of Bihar

2007-05-28

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. This appeal at the instance of the sole appellant Chhabila Sah is directed against the judgment and order dated 5th March, 1993 passed by Sri Damodar Prasad, the then Special Judge (E. C. Act Cases) East Champaran at Motihari whereby he has found the appellant guilty of the offence under Section 7(1)(a)(ii) of the Essential Commodities Act (hereinafter referred to as the "E.C. Act") for contravention of the provisions of the Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as the "Unification Order") and had sentenced him to undergo Rigorous Imprisonment for 6 months. 2. The prosecution case, in brief, is that one, Girindra Narain Thakur, District Supply Officer, Motihari gave his written report to the Officer Incharge Town P.S. Motihari on 20-9-1990, inter alia, stating that at about 4.45 p.m. that day he had raided the shop of stove repairing of the appellant herein situated at Balua Bazar Motihari along with Sub-Inspector Mithila Nand Upadhayay and Sidheshwar Prasad, Supply Inspector, and in course thereof allegedly seized 14 tins of Kerosene oil each containing 16 litres thereby totalling 225 litres in all, two measurement of aluminium of one litre, two measurement of aluminium of half litre, one measurement of 200 grams, two measurements of 100 grams and one measurement of 50 grams under a seizure list prepared in presence of independent witnesses as the accused could not produce any license authorizing him to deal in kerosene oil. On the basis of the said written report Town P.S. Case No. 278/1990 was registered and after due investigation a charge-sheet was submitted. 3. The defence is denial of allegation altogether and it would further appear from the trend of cross-examination that the alleged shop wherefrom the recovery and seizure is said to have been made belonged to the son of the appellant who is separate from the accused. It would also appear that the accused sells lottery tickets and he has no concern whatsoever with either the seized kerosene oil or the shop in question. 4. It would also appear that the accused sells lottery tickets and he has no concern whatsoever with either the seized kerosene oil or the shop in question. 4. In support of its case the prosecution sought to examine as many as 7 witnesses, namely, Chhatu Sah (P. W. 1), Vimal Kant Mani Tripathi (P. W. 2), Ajai Kumar Mishra (P. W. 3) who are witnesses of the seizure list, the informant, Girindra Narain Thakur (P. W. 4), Supply Inspector Sidheshwar Prasad (P. W. 6), Sub-Inspector of Police Mithila Nand Upadhayay (P. W. 7) and Md. Shahid Ali alias Bakar Mian (P. W. 5) of whom P. Ws. 1 and 5 have been declared hostile and P. Ws. 2, 3 and 4 have not supported the prosecution case. The prosecution also adduced some documents in evidence. 5. It has been submitted on behalf of the appellant that the learned trial Court had erred in appreciating the evidence available on record and had wrongly convicted the appellant herein against the weight of evidence not supporting the prosecution case. It was also sought to be submitted that although alleged seizure had been made in broad day light from the shop situated in the market area, yet no independent witness had come forward to support the prosecution case. It was finally submitted that since no storage limit had been prescribed by notification no proceeding could be executed under law against any person for alleged contravention of storage limit on the basis of the provisions of the "Unification Order". 6. It would appear from the testimony of the witnesses examined in Court that P. W. 1 Chhatu Sah has not supported the prosecution case at all and in course of his cross-examination he denied that he had given any statement before the Police. He also denied that he had stated before the police that 14 tins of kerosene oil were seized from the shop of the accused each containing 16 litres. He also denied having stated before the police that measurements were also seized. In course of his cross-examination by the defence P. W. 1 stated that accused Chhabila Sah sells lottery tickets and he is separate from his son. He also denied having stated before the police that measurements were also seized. In course of his cross-examination by the defence P. W. 1 stated that accused Chhabila Sah sells lottery tickets and he is separate from his son. Bimal Kant Mani Tripathi (P. W. 2) though admitting that 14 tins of kerosene oil and measurements were seized from the shop of the accused and a seizure list therefor was prepared upon which he had put his signature (Ext. 1), in course of his cross-examination stated that he did not see as to wherefrom those 14 tins of kerosene oil and measurements were seized. He admitted that he had signed the seizure list at the instance of the Sub-Inspector of Police. He further stated that the accused earns his livelihood by selling lottery tickets. Ajai Kumar Mishra (PW 3) has not supported the search of the shop of the accused. He stated that he went to the road on hearing hulla and signed the seizure list (Ext. 1/1) at the request of the Sub Inspector of Police. The witness was declared to be hostile and in his cross-examination by the prosecution he denied that he had stated before the police that the shop of the accused was searched in his presence and 14 tins of kerosene oil and 8 measurements were seized therefrom and the accused had failed to produce any license. He also denied having stated before the police that people had to purchase kerosene oil at the rate of Rs. 12/- per litre. In course of his cross-examination by the defence P. W. 3 stated that the shop of the accused was not searched in his presence and that the accused earned his livelihood by selling lottery tickets. Similarly P. W. 5 Md. Shahid alias Bagar Mian has also not supported the prosecution case and was declared to be hostile. Like P.Ws. 2 and 3 he has denied having stated before the police regarding the recovery of the 14 tins of kerosene oil from the shop in his presence. In the cross-examination by the defence he stated that he does not know anything about this case. 7. It would, thus, appear that P. Ws. 1 to 3 and P. W. 5 have categorically denied the fact of the seizure of 14 tins of kerosene oil and measurements having been recovered and seized in their presence. P. Ws. In the cross-examination by the defence he stated that he does not know anything about this case. 7. It would, thus, appear that P. Ws. 1 to 3 and P. W. 5 have categorically denied the fact of the seizure of 14 tins of kerosene oil and measurements having been recovered and seized in their presence. P. Ws. 2 and 3 have further stated that they had signed the seizure list only on the instance of the police and had no knowledge as to wherefrom the alleged seizure had been made. They have also stated categorically that accused Chhabila Sah earns his livelihood by selling lottery tickets and has no concern whatsoever with the shop wherefrom the alleged recovery was made. 8. P.W. 4 is the District Supply Officer, Girindra Nath Thakur, who sought to support his written report. He stated of having recovered and seized 14 tins of kerosene oil each containing 16 litres and measurements from the shop of the accused and having prepared the seizure list (Ext. 2). He also proved the written report (Ext. 3). He went on to state that accused Chhabila Sah had no license to sell kerosene oil and was arrested at the same time. He also stated that a proposal for confiscation was also submitted to the Collector, Motihari in respect of the seized kerosene oil. In course of his cross-examination he stated that he inquired regarding the shop of the accused from the neighbouring shopkeepers and that the accused was taking his meal in his shop when the shop was raided. P. W. 4 further stated that the accused did not disclose that the shop belonged to his son but he admitted that he did not record the statements of the neighbouring shopkeepers. 9. Sidheshwar Prasad (P. W. 6). the Supply Inspector, also sought to support the prosecution case and admitted having visited the shop premises along with Girindra Narain Thakur and Mithila Nand Upadhayay and of 14 tins of kerosene oil having been recovered from the shop of the accused, who allegedly did not produce any paper in respect of the seized kerosene oil. In his cross examination by the defence he stated that at the relevant time the accused was sitting in the shop but he was not in a position to say whether the copy of seizure list was handed over to the accused. 10. In his cross examination by the defence he stated that at the relevant time the accused was sitting in the shop but he was not in a position to say whether the copy of seizure list was handed over to the accused. 10. Mithila Nand Upadhayay the Sub Inspector of Police (P. W. 7) had also sought to support the prosecution case by stating that he had accompanied the District Supply Officer and the Supply Inspector to the shop of the accused wherefrom 14 tins of kerosene oil were recovered along with measurements in his presence. He also claimed to have arrested the accused and investigated the case. He further claimed to have recorded the statement of the witnesses including Girindra Narain Thakur and Sidheshwar Prasad. He also claims to have inspected the place of occurrence which is the shop of the accused Chhabila Sah meant for the repair of the stove. He went on to state that there is one room in the said shop and a gumti of wood was also placed there and it was by the side of the said gumti that the 14 tins of kerosene oil was found kept concealed. He also found some parts meant for repairing stove. He also asserted having recorded the purported statements of Chhatu Sah, Ajai Kumar Mishra and Bagar Mian under Sec. 161, Cr. P. C. In course of his cross-examination he admitted that in course of the investigation he came to know that Chhabila Sah also sells lottery tickets and that, Shyam Sundar, the son of Chhabila, sits in the shop and that accused Chhabila Sah helps him economically. He also admitted that Chhabila Sah had expressed his ignorance about the kerosene oil. He admitted that he did not arrest Shyam Sundar, the son of accused Chhabila. 11. It would appear from the testimony of P. W. 7 that 14 tins of kerosene oil were not recovered from the shop premises, but from the area by the side of the gumti. It would also appear therefrom that Chhabila Sah was a vendor of lottery tickets and has no concern whatsoever with the alleged seizure of the 14 tins of kerosene oil. In effect whereas accused Chhabila Sah was a vendor of lottery tickets the shop was run by his son, Shyam Sundar, and, therefore, the defence plea of false implication cannot be ignored lightly. In effect whereas accused Chhabila Sah was a vendor of lottery tickets the shop was run by his son, Shyam Sundar, and, therefore, the defence plea of false implication cannot be ignored lightly. Admittedly 14 tins of kerosene oil with measurements were recovered but this fact has only been supported by the District Supply Officer, the Supply Inspector and the I. O. and none of the independent witnesses have taken pains to support the prosecution case. As a matter of fact as would appear from the testimony of the independent witnesses they were forced to sign the seizure list although they were not witnesses of the alleged recovery and seizure. There is another aspect of the matter the District Supply Officer claims to have made inquiries from neighbouring shopkeepers but he does not state as to what was the result of such inquiry. The District Supply Officer as also the Supply Inspector claim that recovery was made from the shop whereas the Sub Inspector of Police states that the recovery was made from a place by the side of the gumti in front of the shop. Therefore, there is no unanimity of the place wherefrom the alleged recovery and seizure was made. 12. From the materials available on record the chain of circumstances do not appear to have been completed and many a link of the said chain are missing. If the son of the appellant herein was running the shop there was no reason why he was not arrested. It would also appear that whereas the District Supply Officer found the appellant herein having his meals at the time of the raid the other two officials do not state anything in this regard and merely say that he was present in the shop. If the prosecution story of the tins of kerosene oil belonging to the appellant is to be accepted then the Police Officer ought to have obtained the signature of the appellant or his son, who were present there, on the seizure list and he should have handed over a copy of the seizure list to either of them. Moreover, the fact that the shop in question belonged to the appellant should also have been established by evidence either documentary or oral. None of the independent witnesses examined in Court said in any positive statement that the aforesaid shop belonged to the appellant. 13. Moreover, the fact that the shop in question belonged to the appellant should also have been established by evidence either documentary or oral. None of the independent witnesses examined in Court said in any positive statement that the aforesaid shop belonged to the appellant. 13. In view of the above circumstances the trial Court-has erred in relying only on the evidence of the official witnesses and of conveniently ignoring the deposition of the independent witnesses. Moreover as stated earlier, it is available from the testimony of the P. W. 7, the Sub Inspector, that the tins of the kerosene oil were kept concealed by the side of the gumti. From this it could not definitely be said that the aforesaid incriminating articles were in the possession of the appellant or his family members. In any view of the matter the appellant cannot be connected with the alleged seizure on the basis of materials on record. That being the position the order of conviction and sentence recorded by the trial Court, to my mind, are not justified. Accordingly, the appeal is allowed and the appellant is acquitted. The appellant is already on bail he is discharged from the liabilities from the bail bond.