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Patna High Court · body

2008 DIGILAW 133 (PAT)

Ashok Kumar v. State Of Bihar

2008-01-21

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. No body is appearing on behalf of the appellant on repeated calls. Mr. Rambir Singh has appeared and submitted that he is ready to assist the court on behalf of the appellant as Amicus curiae. 2. Learned APP has not opposed his submission. Accordingly, Mr. Ranbir Singh is appointed as Amicus curiae to assist the Court. 3. Heard the parties. 4. This appeal is directed against the Judgment dated 14th June, 1993 passed by the Spl. Judge, Nalanda in Asthawna P.S. Case No. 299 of 1990 whereby the appellant was found guilty for contravening the provisions of Bihar Trade Articles (Licence unification) Order, 1984 (hereinafter referred to as Order, 1984) Punishable under section 7 of the Essential Commodities Act and has been sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs. 2000/- and in default of payment of fine to undergo one month imprisonment. 5. According to the prosecution case on 20th September, 1990 in the afternoon at about 2 P.M. the informant Ram Swaroop Prasad was going to distribut the Kerosene oil at sales centre along with Anchal Adhikari, he received confidential information that the appellant of village Andi has kept in his shop Kerosene oil and sugar for black marketing. The Anchal Adhikari was informed. A raiding party was organized which consisted Anchal Adhikari Umesh Prasad Dy.S.P. Ratan Mani Sanjeev, Thakur Devendra Prasad Singh S.I. of Asthawan Police Station and Akbar Azam, A.S.I. of Asthawan Police Station. The shop was searched at 3 PM in presence of independent witness. Six tins of Kerosence Oil, one Jarkin full of Kerosene Oil and one Drum and half Drum of Kerosene Oil were recovered from the room which was taken on rent by the appellant. Besides the Kerosene Oil seven bags of sugar was also recovered from the southern west room which was also taken on rent by the appellant. No explanation was given by the appellant for possessing the sugar and Kerosene Oil. So the articles were seized and a written report was filed before the Officer In Charge, Asthawan Police Station where the FIR was registered. After investigation the case was found true and charge sheet was submitted. Cognizance was taken and trial proceeded. 6. The defence of the appellant was that he has been falsely implicated. The articles were belongs to one Jairam Prasad. After investigation the case was found true and charge sheet was submitted. Cognizance was taken and trial proceeded. 6. The defence of the appellant was that he has been falsely implicated. The articles were belongs to one Jairam Prasad. At the time of seizure he was not present. Seizure list was not prepared on the spot. 7. This is to be seen here that as to whether the prosecution has been able to prove its charge beyond all reasonable doubt or not. 8. On behalf of the prosecution witnesses cited in the charge sheet were Ram Swaroop Prasad the informant, Doman Sao, Manjhi Yadav were the seizure list witnesses. Upesh Prasad Singh the Circle Officer Asthawan, Ratna Mani Sanjeev, Dy.S.P., Akbar Aazam, A.S.I. of police and Thakur Devendra Singh the I.0. of the case. But the prosecution has examined only one witness who is the informant . A formal witness PW 2 Ashok Kumar was examined. He was not the witness of charge sheet. He has proved only written report (Ext-3) upon which formal FIR (Ext-4) was drawn. He has proved the seizure list (Ext-5). 9. PW 1 is in his evidence has stated that he along with others were going to distribute K. Oil in the afternoon of 20th September, 1990 when he and others reached near Asthawan Bazar then he got confidential information about the concealment of sugar and Kerosene Oil by the appellant. He informed the Anchaladhikari and Dy.S.P. Accordingly raiding party was organized which raided the premises and seized the Kerosene Oil and Sugar. PW 1 proved his signature of Umesh Prasad (Ext-1) and signature of Ashok Kumar (Ext-2). He has proved his written report also (Ext-3). He in his cross examination has stated that he has filed the written report on the order of the Circle Officer, Asthawan and the written report was prepared at the instance of the Circle Office Asthawan. In para 10 he has stated that he was not present during the entire raid. Except this witness no other witness has been examined on behalf of the prosecution and it is not clear as to why the other witnesses who have been shown as witness in the charge sheet were not examined by the prosecution. 10. The presence of PW 1 becomes doubtful in view of the fact that he has stated that he was not present during the whole raid. 10. The presence of PW 1 becomes doubtful in view of the fact that he has stated that he was not present during the whole raid. Except the evidence of this witness nothing is on the record from which any inference could be drawn that on the alleged date and time of occurrence there was raid on the premises of the appellant. The definite case of the prosecution is that besides PW 1 other witnesses were also present. Therefore, their non-examination cast doubt on the prosecution version. On behalf of the accused two persons have been examined as defence witnesses and they have given different version of the occurrence. I. 0. has also not been examined so place of occurrence could not be proved. Therefore, the case remains hazy and the prosecution was not able to prove its charge beyond all reasonable doubt due to non examination of remaining witnesses. 11. In the result this appeal is allowed and the judgment of the court below is set aside. The appellant is discharged from the liabilities of his bail bonds. Let a copy of this judgment be handed over to Mr.Ranbir Singh Amicus Curiae.