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2008 DIGILAW 1185 (JHR)

Md. Bannu v. State of Bihar

2008-10-17

AJIT KUMAR SINHA

body2008
Judgment Ajit Kumar Sinha, J.- The present criminal appeal has been preferred against the judgment and order of conviction and sentence dated 10.1.2000 passed by the Special Judge, Gumla in G.R. No. 3/95 whereby and whereunder the appellant has been found guilty for the offence under Section 3(2)(a) of the Essential Commodities Act punishable under Section 7 of the Essential Commodities Act and has been sentenced to undergo rigorous imprisonment for two years. 2. The case of the prosecution, in brief, is that the informant Mr. Lakhan Lal Sinha, Supply Inspector, gave a written report to the Officer-in-Charge, Gumla that on a confidential report he made a surprise inspection on 20.6.1995 at 4.20 p.m. in Godown No. 24 at the premises of Bazar Samiti, Gumla under urban area. The lock of the god own was open and the shutter was down. He found three drums of kerosene oil in Godown No. 24 in which two drums were general and one drum was of blue colour kerosene oil. At the time of inspection the accused Bannu was not present and there was no document/ cash memo bill for purchasing the same. The total kerosene oil in three drums was nearly 600/- liters. The accused Bannu had no license for dealing in the kerosene oil and without obtaining the license no one can deal in kerosene oil. As per the prosecution the blue coloured kerosene oil was only supplied to Public Distribution shop while Bannu had no P.O. shop nor any license to deal in the kerosene oil and thus as per the prosecution the kerosene oil was kept for black-marketing. Accordingly the police instituted the case and after completing the investigation submitted the charge-sheet and on the basis of charge-sheet cognizance was taken and the case proceeded to trial. 3. Prosecution has examined four witnesses to support the case out of which PW-1 Lakhan Lal Sinha is the informant who fully supported the case of the prosecution as stated in the F.I.R. According to PW-1 on 20.6.95 while he was posted as Supply Inspector, Gumla he alongwith Jai Mangal Singh, Executive Magistrate, went to Gumla Hat and inspected Godown No. 24. He found the godown oper but the shutter was down and on opening the same he found three drums of kerosene oil in which two drums were general in nature and one drum was of blue colour which is supplied only to the P.O. Shop. The said kerosene oil was of Md. Bannu who has not present at the site and upon being called also he did not turn up. Upon inspection it was found that Md. Bannu had no license for selling kerosene oil. Accordingly the kerosene oil was seized and seizure list were prepared by PW-1 and he signed it alongwith two independent witnesses namely Suresh Prasad and Bishu Kumar Tiwari. A copy of seizure list was received by Md. Tanvir, brother of the accused-appellant who signed over the same. The seizure list was marked as Ext.-1 in the case. The seized kerosene oil was given to Md. Tanvir on Jimmanama and the same was written and signed by him and a copy of the same has been marked as Ext.-2 in this case. According to PW-1 he filed the F.I.R. at the Police Station and also proved the written report which is in his handwriting and bears his signature and same has been marked as Ext.-3. In his cross-examination he has admitted that he had no talk with any person at the time of filing this case. He has further submitted that he does not know as to who is the owner of the Godown No. 24. 4. PW-2 Md. Tanvir, brother of the accused has stated that Supply Inspector, Gumla came in the Bazar Samiti, Gumla at Shop No. 24 and three drums of kerosene oil was seized and the seizure list was prepared. He has further stated that he received the copy of the seizure list and also signed over the same. He has further submitted that the Supply Inspector got the kerosene oil sold and deposited the sale receipts. He further stated that he does not know the person to whom Shop No. 24 belongs. He has admitted in his cross-examination that shop was not searched before him and he does not know the person to whom the kerosene oil belongs and seized kerosene oil was not measured before him. 5. PW-3 Md. He further stated that he does not know the person to whom Shop No. 24 belongs. He has admitted in his cross-examination that shop was not searched before him and he does not know the person to whom the kerosene oil belongs and seized kerosene oil was not measured before him. 5. PW-3 Md. Iftekhar, a shopkeeper, has stated that there was a shop of Bazar Samiti in Gumla, Tand market and every shop was numbered. He has further stated that on 20.6.95 Supply Inspector inspected the Shop No. 24 but he has no knowledge as to what was found and seized at Shop No. 24. This witness has been declared hostile on behalf of prosecution. His previous statement before the police under Section 161 Cr.P.C. was put to him and in cross-examination he has stated that police has not enquired from him about the same. 6. PW-4 S.N. Pandey is the I.O. of this case and he has stated that on 21.6.95 while he was posted as A.S.I. at Gumla Police Station, the informant of this case. gave the written report based on which Gumla P .S. Case No. 128-95 was registered and he had taken the charge of investigation of this case. According to him he had also recorded the statement of informant and inspected the place of occurrence. He has stated that the place of occurrence is Shop No. 24 in the premises of Bazar Samiti, Gumla which is an urban area faced towards north and of brick built. According to him there was a door before the house and there were 10 rooms in the house facing towards north having iron shutter. He further submitted that he was informed by the informant of the recovery of three drums of kerosene oil from Godown No. 24. He has also narrated the possession of other godown and the owner thereof. He has admitted in his cross-examination that during the course of investigation he could not find as to the Godown No. 24 was allotted to whom. 7. The defence has examined DW-1 Md. Bannu, the appellant herein. According to him in G.R. Case No. 3/95 he was made an accused. Gumla Bazar Samiti allotted Godown No. 24 in the name of Tannu who was his brother. 7. The defence has examined DW-1 Md. Bannu, the appellant herein. According to him in G.R. Case No. 3/95 he was made an accused. Gumla Bazar Samiti allotted Godown No. 24 in the name of Tannu who was his brother. He has also stated that Supply Inspector inspected the Godown No. 24 on 24.6.1995 at 4.20 p.m. He has admitted that in the shop three drums of kerosene oil was seized which was of free sale. He also stated that the kerosene oil was purchased from Lohardaga agency and showed the cash memo over which his signature was marked as Ext.-A. He has filed the petition before S.D.O., Gumla to give permission to sell the kerosene oil and showed the copy of the notice after confiscating the kerosene oil by the order of the D.C. He further stated that he has filed the show cause and signed it and the same was marked as Ext.-A/1 in this case and .the aforesaid two documents are not proved and his signature have been marked as Exts.-A and A/1 and the same was admitted in his cross-examination that he has given statement under Section 313 Cr.P.C. in this case in which he admitted that the seized kerosene oil belongs to him. He has also stated that Government supplied kerosene oil was blue in colour and he has admitted that Md. Tanvir was his brother and has identified his signature which has already been marked as Ext.-1/1 in this case. 8. The prosecution, based on the aforesaid evidence, seizure list and seized articles has argued that it has been able to prove the case and the accused-appellant may be convicted for the charges levelled against him. 9. On the side of the defence it is argued that the accused-appellant is innocent and has been falsely implicated in this case as he was not present at the place of occurrence and the seizure list does not bear his signature. He has further argued that as per the F.I.R. he was not present and the drums were seized from Godown No. 24 when Bannu was not even present. He has further stated that the I.O. has not even verified and tried to find out as to whether the Godown No. 24 has been settled. He has further argued that as per the F.I.R. he was not present and the drums were seized from Godown No. 24 when Bannu was not even present. He has further stated that the I.O. has not even verified and tried to find out as to whether the Godown No. 24 has been settled. He has further argued that they had applied for sale of the purchased 400/- liters of kerosene oil to the competent authority and the documentary evidence were also produced. 10. The learned Special Judge, Gumla after considering the aforesaid facts, evidence and argument came to the conclusion that from the evidence of DW-1 Md. Bannu, appellant herein, it was clear that the seized article i.e. kerosene oil belongs to him and Godown No. 24 was of his brother Md. Tanvir who is PW-2 in this case. It is also recorded that the aforesaid fact has been admitted in the statement under Section 313 Cr.P.C. by the accused-appellant himself and the only defence of the appellant is that no blue coloured kerosene oil was found at the place of occurrence. The learned Special Judge has held that in the light of Ext.-2 which is Jimmanama written and signed by PW-2 without objection. It is quite clear that one drum of kerosene oil of blue colour which is not available to the public and the same is only supplied for P.O. Shop for the sale to the public was found in the shop and Ext.-2 has been well proved and there was no cross-examination over the same and this fact has also been admitted by PW-2 who is brother of the accused-appellant and he has further proved his signature and the seizure list and he has admitted that the Supply Inspector seized the kerosene oil and after selling it deposited the sale receipts. 11. In the aforesaid background the learned Special Judge held that one drum of kerosene oil was seized from the place of occurrence alongwith 400/- liters of general kerosene oil and the accused-appellant did not cross-examine the circumstances under which he kept at least one drum of blue colour kerosene oil which is not available to the public. The learned Special Judge further held that the appellant did not have any P.O. Shop nor did he obtain license for sale of the kerosene oil. 12. The learned Special Judge further held that the appellant did not have any P.O. Shop nor did he obtain license for sale of the kerosene oil. 12. Accordingly it was held that the prosecution has been able to prove the case against the sole accused at least with regard to one drum of blue colour kerosene oil found in possession of the accused for which he had no license and any authority to get the same. The appellant was accordingly found guilty of the charges levelled against him which is punishable under Section 7 of the E.C. Act and was sentenced to two years of rigorous imprisonment. 13. The counsel for the petitioner has further contended that the learned Trial Court has not taken into consideration Section 12-AA(f) of the Essential Commodities Special Provision Act, 1981 that the offence was required to be tried in a summ9-ry way and the provision of Section 262 to 265 of the Code of Criminal Procedure was applicable and since Special Judge has not followed the provisions of summary trial, the impugned order is illegal and liable to be set aside. This is a case instituted for violating and committing an offence under Section 3(2)(a) of the Essential Commodities Act punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. 14. Section 7 is quoted as under: "7(1) If any person contravenes any order made under Section 3(a) he shall be punishable- (i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine." In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955) the Central Government made the following order namely, "Kerosene (Restriction on Use and. Fixation of Ceiling Price) Order, 1993". Under Section 3-B of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (in short "Order; 1993") no person other than the dealer or Government Oil Company or parallel marketer shall sell kerosene to any person. 15. Fixation of Ceiling Price) Order, 1993". Under Section 3-B of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (in short "Order; 1993") no person other than the dealer or Government Oil Company or parallel marketer shall sell kerosene to any person. 15. In the present case the accused carne to be charged under Section 3(2)(a) of the Act having regard to the fact that the punishment prescribed for the said offence extends to seven years. Section 12-AA sub-clause (f) provides as under:- "(f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 205 (both inclusive) of the Code shall, as far as may be, apply to such trial: Provided that in the case of any conviction in a summary trial under this Section it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years." 16. It will thus be seen that while the penalty provided for an offence under Section 7(1)(a)(ii) extends to seven years and fine, by virtue of clause (f) of sub-section (1) of Section 12-AA if the offence is tried in a summary way applying the provisions of Sections 262 to 265 of the Code the sentence would be restricted by the proviso to a maximum of two years, which would, it is argued, bring the case within the meaning of a "summons cased as defined in Section 2(w) of the Code. 17. The Honoble Supreme Court in the case of Nirmal Kanti Roy vs. State of West Bengal, as reported in 1998(4) SCC Page 590 while considering a similar issue held with approval as under:- "The maximum sentence of 7 years as provided under Section 7 of the Act and the proviso to clause (f) to Section 12-AA imposing a limit of 2 years imprisonment on the power of the Special Judge has to be harmoniously construed and I do not find any difficulty in the same. The offence continues to attract the maximum sentence of 7 years but the Special Judge trying the case does not have the jurisdiction to impose a sentence of more than 2 years. This does not mean that the offence itself is punishable by 2 years. The offence continues to attract the maximum sentence of 7 years but the Special Judge trying the case does not have the jurisdiction to impose a sentence of more than 2 years. This does not mean that the offence itself is punishable by 2 years. It only means that although the offence is punishable by 7 years but the Trial Court cannot give a sentence beyond 2 years and if this construction is given then both Section 7 and the proviso to clause (f) to Section 12-AA get their full play." 18. In the aforesaid background the learned Special Judge was fully justified and had the jurisdiction to pass the order of conviction and sentence for a period of 2 years. 19. On consideration of the facts and circumstances and the evidence it is clear that the Godown No. 24 was of the brother of the appellant who is PW-2 in the case and the same has been admitted in the statement under Section 313 Cr.P.C. by the appellant himself. In the light of Ext.-2 which is Jimmanama written and signed by PW-2 without objection makes it clear that at least one drum of kerosene oil was blue colour which is not available to the public rather the same is only supplied for the Public Distribution shop having license to sell kerosene oil to the public. Ext.-2 has been proved beyond doubt even in the cross-examination and has been admitted by PW-2 who is none other than the brother of the accused who has proved his signature over the seizure list. It is also an admitted position that the Supply Inspector got the seized kerosene oil sold and deposited the sale receipts. Thus, it can, safely be held that one drum of kerosene oil of blue colour was seized from the place of occurrence alongwith 400/- liters of general kerosene oil. It is an admitted fact that the appellant had neither any license for selling the kerosene oil nor had any Public Distribution Shop duly authorized. 20. In the aforesaid background, the prosecution has been able to prove its case against the sole accused/appellant. The learned Special Judge, Gumla has rightly held the appellant guilty and convicted and sentenced him to undergo R.I. for two years, thus the present appeal is devoid of any merit and is accordingly dismissed. 20. In the aforesaid background, the prosecution has been able to prove its case against the sole accused/appellant. The learned Special Judge, Gumla has rightly held the appellant guilty and convicted and sentenced him to undergo R.I. for two years, thus the present appeal is devoid of any merit and is accordingly dismissed. As the appellant is on bail, his bail bond is cancelled and he is directed to be taken into custody forthwith for serving the remaining period of sentence.