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2007 DIGILAW 510 (PNJ)

Gurdeep Singh v. State Of Haryana

2007-03-17

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. The appellant Gurdeep Singh along with one Mahi Pal Singh was sent up to face trial for having committed an offence under Section 7 of the Essential Commodities Act, 1955 . They were convicted vide judgment dated 4.1.1995 to undergo RI for 3 years and to pay a fine of Rs. 1,000/- each. In default of payment of fine they were further directed to undergo RI for a period of 6 months each. 2. It is worthwhile to mention over here that vide separate order dated 26.7.2006 the appeal filed by Mahi Pal bearing Criminal Appeal No. 72-SB of 1995 arising out of the same judgment is said to have been abated. 3. Briefly, the facts of the case are that on 15.4.1993 SI Om Parkash of CIA Staff, Karnal was present near Sessions Court Chowk, Karnal along with other police officials. He received a secret information that one Mahi Pal depot holder and Gurdeep Singh shop-keeper were indulging in mal-practices and selling kerosene oil in violation of the Haryana Kerosene Dealers Licensing Order, 1976 . On receipt of this information SI Om Parkash went to the office of Food and Civil Supplies and joined Manmohan Singh Asstt. Sub-Inspector of the said department and proceeded towards village Gogripur to conduct a raid. On reaching there he went to the depot of Mahi Pal accused. Mahi Pal was found to be absent and his wife was there. The raid was conducted in her presence. The register of the actual stock of the kerosene oil was checked at the spot by Manmohan Singh, Asstt. Sub-Inspector and was found to be short. A report was accordingly prepared and the registers were taken into possession. No kerosene was found in the depot and drums were lying empty. The police party prepared seizure memos of the registers, etc. and then proceeded towards the shop of Gurdeep Singh appellant. On reaching there the police party found Gurdeep Singh present in his shop. The furnaces which were operational in the shop were found connected with the drums of kerosene which were lying on the roof of the third floor of the shop. The pipes were found fitted to these kerosene drums leading to the furnaces. The appellant was found to be in possession of 600 litres of kerosene. The furnaces which were operational in the shop were found connected with the drums of kerosene which were lying on the roof of the third floor of the shop. The pipes were found fitted to these kerosene drums leading to the furnaces. The appellant was found to be in possession of 600 litres of kerosene. He could not show any permit or licence for retaining such a huge quantity of kerosene. Recovery memo was prepared and a ruqa was sent to the police station on the basis of which a formal FIR was recorded. Appellant Gurdeep Singh was arrested on the same day while Mahi Pal was arrested on 26.4.1993. 4. On completion of the investigation, a challan against both the accused persons was submitted for having violated the provisions of Section 7 of the Essential Commodities Act and the Haryana Kerosene Dealers Licensing Order, 1976 . Thereupon notice was issued to both the accused persons. The allegation against the appellant Gurdeep Singh was that he had purchased the kerosene in black market from Mahipal @ Rs. 4/- per litre instead of Rs. 2.81, whereas the allegation against Mahi Pal was that he had sold 800 liters kerosene to the appellant at the aforesaid rate. Both the accused pleaded not guilty and claimed trial. 5. The prosecution thereafter went on to examine as many as 10 witnesses. Both the accused persons were given an opportunity by way of recording of statements under Section 313 of the Code of Criminal Procedure. The allegations were denied. Mahi Pal had given a separate explanation, but it is not relevant to go into the same as the appeal qua him has abated since he has expired. No evidence was led by the appellant in his defence. 6. The trial Court thereafter went on to convict the appellant in the above said manner. 7. It was contended by the learned counsel for the appellant that there was a complete violation of the provisions of Section 6-B of the Essential Commodities Act as no notice was issued prior to the confiscation of the alleged commodity. The provisions of law being mandatory non-compliance thereof has vitiated the entire trial. In support of his contention he relied upon State of Punjab v. Jawahar Lal Malhotra, 2002(1) RCR(Criminal) 644 (P&H). The provisions of law being mandatory non-compliance thereof has vitiated the entire trial. In support of his contention he relied upon State of Punjab v. Jawahar Lal Malhotra, 2002(1) RCR(Criminal) 644 (P&H). It was further contended by him that the prosecution failed to establish that the material seized from the appellant was kerosene. No samples were drawn and there is no report of the Chemical Examiner to establish the nature of the good seized from the appellant. Besides, there is nothing on record to suggest that the kerosene which was found missing from the depot of Mahi Pal had actually been purchased by the appellant. 8. On the other hand, learned counsel for the State contended that there was no need to draw the samples as kerosene could be easily identified by naked eye and the Food and Supplies Inspector Manmohan Singh (PW-8) was having an experience of 30 years to his credit who could easily identify the material seized from the shop of the appellant. He, however, conceded that no notice under Section 6-B of the Act had been issued. 9. I have heard the learned counsel for the parties and have perused the record. 10. Concededly, the appellant is not the dealer who was involved in the sale of any essential commodity. He is running a sweet shop and for the purpose of preparation of the goods the presence of any kerosene oil or any other such fuel would have just been natural. It was for the prosecution to prove the nature of the said material recovered, and if being kerosene, had found its way to the shop of the appellant from the depot of Mahi Pal. No such evidence is on record to suggest that the missing kerosene oil which had been syphoned off from the depot of Mahi Pal had come to the possession by way of sale to the appellant, to establish the charge against him. 11. That apart, no notice under Section 6-B of the Act was given to the appellant before confiscating the material and no opportunity was given to him to explain as to how he was in possession of the material so seized from him. 11. That apart, no notice under Section 6-B of the Act was given to the appellant before confiscating the material and no opportunity was given to him to explain as to how he was in possession of the material so seized from him. Section 6-B is reproduced as under : "6-B. Issue of show-cause notice before confiscation of essential commodity :- (1) No order confiscating any (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance), shall be made under Section 6-A unless the owner of such (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance) or the person from whom it is seized:- (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the (essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance). (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. (2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, vehicle, vessel or other conveyance shall be made under Section 6-A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all responsible and necessary precaution against such use). (3) No order confiscating any essential commodity, package, covering, recptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice given under clause (a) of sub-section (1), if, in giving such notice, the provisions of that clause have been substantially complied with". The purport of the aforesaid provisions of law is to ward off any mischief on the part of the raiding party as also to comply with the principles of natural justice. Non-issuance of a notice has therefore seriously jeopardised the principle of `Audi Alteram Partem. The proceedings against the appellant are vitiated on this score alone. 12 That apart, no attempt was made by the prosecution to establish that the material seized from the appellant was indeed kerosene oil. Non-issuance of a notice has therefore seriously jeopardised the principle of `Audi Alteram Partem. The proceedings against the appellant are vitiated on this score alone. 12 That apart, no attempt was made by the prosecution to establish that the material seized from the appellant was indeed kerosene oil. It was incumbent upon the prosecution to establish by taking samples of the material to establish that the material was kerosene oil to invite the charge of violation of the Haryana Kerosene Dealers Licensing Order, 1976 and a charge of violation of the provisions of the Essential Commodities Act. This court in Jai Parkash v. The State of Haryana, 1989(2) Recent Criminal Reports 147 (P&H) held that it cannot be presumed that the material recovered was kerosene oil in the absence of any report from the chemical laboratory. 13. The prosecution has utterly failed to establish that the material seized was kerosene oil and if it was kerosene oil then whether the same had actually been purchased from the depot of Mahi Pal. The trial Court has recorded a finding purely on conjectures which is unsustainable and is accordingly set aside. 14. After having considered the circumstances in their entirety and after having perused the evidence on record, I am of the considered opinion that the appeal deserves to succeed. 15. Consequently, the same is allowed and the appellant is acquitted of the charges leveled against him violating the provisions of Section 7 of the Essential Commodities Act and the Haryana Kerosene Dealers Licensing Order, 1976 .