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2008 DIGILAW 111 (PAT)

Dwarika Prasad Choudhary v. State of Bihar

2008-01-18

body2008
S.K. SHARMA, J.:–The sole appellant has preferred this appeal after being found guilty for being not displaying the price and stock according to the provision of the Bihar Essential Articles (Display of Price and Stock) Order, 1971 (hereinafter referred to as Order). He was found guilty under section 7 of the Essential Commodities Act by the judgment dated 7.6.1993 in GR No. 1329 of 1987/Tr. No. 28 of 1993 by Spl. Judge (E.C. Act), Madhubani and was sentenced to undergo R.I. for six months. 2. According to the prosecution case on 25.7.1987 Sri Shankar Dayal PW 5 the then Supply Inspector, Basopatti inspected the business premises of the appellant. He was not present but in presence of his son Bijay Prasad and other witnesses it was detected that stock and price of articles were not displayed as per the provisions of the order. PW 5 detected non-maintenance of stock register and non-issuance of cash memo of those articles. Twenty-four articles were found in the shop which were seized and seizure list was prepared. All seized articles were given on Jimmenama to Bijay Prasad. Report of the seizure was sent to the S.D.O., Bennipatti and on the basis of his report and on the direction of the S.D.O., Bennipatti the FIR related the occurrence was registered on 27.8.1987. The matter was investigated and after investigation the case was found to be true and charge-sheet was submitted. 3. After appearance of the accused, substance of accusation for violation of provision of Order 1977 was explained. He pleaded not guilty so trial proceeded. 4. The defence of the accused from the beginning that he was falsely implicated at the behest of Bishundeo Prasad Singh and Madan Mohan Rai, Prakhand Bikas Padadhikari-cum-Circle Officer against whom the appellant has filed criminal case under section 467 of the Indian Penal Code prior to the present case in respect of occurrence dated 13.5.1987 under sections 143, 147, 342, 427, 500 and 504 of the Indian Penal Code. Further defence was that out of 24 items which were seized, only item no. 5 iron wire weighing 250 Grams was found in his shop which required display of prices and stock under the provision of the Order 1977. The case of appellant was that the seized article was to be used for his personal consumption and it was not for sale and further it was also a meager quantity. 5 iron wire weighing 250 Grams was found in his shop which required display of prices and stock under the provision of the Order 1977. The case of appellant was that the seized article was to be used for his personal consumption and it was not for sale and further it was also a meager quantity. 5. In order to prove its charge, prosecution has examined six witnesses. PW 1 Bisheshwar Yadav an advocate clerk, PW 2 Hiralal Chaudhary an advocate clerk. PW 3 Sri Ram Yadav a constable in Home Guards and PW 4 Biswanath Thakur an advocate clerk the formal witness who proved the FIR (Ext.-1), seizure list (Ext.2), charge-sheet (Ext.-3) and inquiry report (Ext.-4). PW 5 Shanker Dayal was the informant. PW 6 Chandra Mohan Jha is the I.O. Exhibit-5 is the endorsement in the writing of Bijai Prasad (Ext.-2) whereas Exhibit-6 is the sanction for prosecution and Exhibit-7 is the case diary. 6. The defence has examined one witness Bisheshwar Paswan. He was the formal witness who stated that on 25.7.1987 at about 7 PM. PW 5 inspected the shop in his presence. He has proved the carbon copy of the receipt (Ext.-C)-(Ext.-B) is the endorsement of the then Spl. P.P. on the letter issued in his pen and signature. Exhibit-D is the certified copy of the order dated 4.6.1987 in GR No. 72 of 1987. Signature of the PW 6 has been marked as Exhibit-B. 7. Bare perusal of Schedule II of the Order of 1977 shows that the seized items contain a number of articles but others mentioned shown were the articles for which no formal order was required. Only about the seizure of iron wire which later on was converted into 25 Kg. it was stated that there was violation. PW 5 in his evidence has stated that there was no display of prices and seized article was 25 Kg. and not 250 grams. On this point contradictory evidence has come. Serial No.5 of Exhibit-2 shows that the seized article was 250 Grams of iron wire. Bare perusal of the item no. 5 of the Exhibit-2 shows that it was later on interpolated from different pen by mentioning it to be 25 Kg. The defence has pointed out this fact before the court at the initial stage of the trial itself. 8. Bare perusal of the item no. 5 of the Exhibit-2 shows that it was later on interpolated from different pen by mentioning it to be 25 Kg. The defence has pointed out this fact before the court at the initial stage of the trial itself. 8. Without discussing further it is apparent that initially the seized article was mentioned to be 250 Grams but later on due to some interpolation it was noted to be 25 Kg. Prima facie it shows that the informant was any how determined to implicate the appellant by employing any means because he was accused in a case from before which was lodged against him by the appellant. 9. Not only the case appears to be suspected case of interpolation but also it appears that the matter of 25.7.2007 was reported on 27.8.2007 to the police i.e. after a gap of more than one month and the delay has been remained unexplained. The case should be lodged as early as possible so that chance of interpolation is ruled out which may develop due to long lapse of time. The alleged occurrence, according to the informant itself, is of 25.7.2007. The long delay in reporting the case has created a doubt. The evidence of the prosecution is only of informant who was on hostile terms with the appellant from before. In view of the fact that the case appears to be doubtful, it was incumbent upon the court below to grant benefit of doubt to the appellant but that benefit was not granted to the appellant and he was convicted. 10. From the evidence which is on the record, I find long unexplained delay in lodging the FIR and also the seized article was 250 Grams initially which was later on noted to be 25 Kg. which creates doubt which is vital and falsifies the prosecution version. So the judgment of conviction and sentenced passed by the trial court against the appellant is set aside. In the result this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds.