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2008 DIGILAW 23 (PAT)

Nanhey Ram v. State Of Bihar

2008-01-07

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. This appeal is directed against the judgment dated 16.3.1993 passed by Special Judge (E.C. Act), Aurangabad in G.R. Case No. 2 of 1983 whereby the appellant has been found guilty for offence under Section 7 of the Essential Commodities Act (hereinafter to be referred to as the Act) and has been convicted and sentenced thereunder to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months under Section 7(1)(a)(ll) of the Essential Commodities Act.). 2. The informant Chanarik Yadav a (P.W. 3) who was the Mukhiya of Barokhar Gram Panchayat, filed a written report (Ext. 3) before the Officer-in-Charge of Haspura alleging therein that the dealer of village Tankupi, P.S. Haspura namely appellant Nanhey Ram is selling kerosene oil in black market, which is meant for distribution in public, keeping the same in the shop of one Kishori Prasad. The Mukhiya got this information from the witnesses namely, Ghuran Prasad (P.W. 4), Munarik Yadav, Ramesh Yadav (P.W. 6), Doman Ranjbanshi (P.W. 8), Briksh Rajbanshi (P.W. 7), Ramdeep Yadav (P.W. 9), Radhey Prasad (P.W. 10) and Birendra Kumar (P.W. 5). They informed the informant that the kerosene oil was kept at the shop of Kishori Prasad and when they went to purchase, it was not given to them saying that the oil has been exhausted. Thereafter, they rushed to the informant who filed a written report before the Officer-in-charge. On the basis of said written report, Haspura P.S. Case No. 64 of 1983 under Section 7 Essential Commodities Act was registered and thereafter a formal F.I.R. was drawn up which has been marked as Ext. 1. The matter was investigated into and the police found the case to be true and submitted charge sheet against the sole appellant. The person on whose shop the kerosene oil was kept and allegedly sold in black market was not sent up for trial. The substance of accusations was explained to the accused who pleaded innocence. Thereafter the trial proceeded. 3. In order to prove the case, the prosecution examined as many as ten witnesses and documentary evidence were also placed. The accused himself was examined as D.W.1 who proved some documents. 4. The substance of accusations was explained to the accused who pleaded innocence. Thereafter the trial proceeded. 3. In order to prove the case, the prosecution examined as many as ten witnesses and documentary evidence were also placed. The accused himself was examined as D.W.1 who proved some documents. 4. The prosecution witnesses are Basudeo Prasad (P.W. 1), Ashok Kumar (P.W. 2), Chanarik Yadav (P.W. 3), Ghuram Yadav (P.W. 4), Birendra Kumar (P.W. 5), Ramesh Yadav (P.W. 6), Briksh Rajbanshi (P.W. 7), Doman Ranajbanshi (P.W. 8), Ramdeep Yadav (P.W. 9) and Radhey Prasad (P.W. 10). 5. It appears from the trend of the defence that the defence was of false implication. The accused was the dealer of village Tankupi and he was allotted 222 liters kerosene oil on 28.10.1983 but he fell ill and remained in disposed of from 29.10.1983 to 7.11.1983. Immediately after recovery, on 8.11.1983 he got permission of the competent authority to distribute the kerosene oil presence of Nigrani Samittee. The appellant was in process of distributing the kerosene oil but he came to know that an F.I.R. has already been lodged against him alleging therein that the kerosene oil has been sold in black market. 6. P.Ws. 1 and 2 are formal witnesses. They have merely proved the formal F.I.R. and endorsement and signature on the written report;. P.Ws. 6, 8 and 10 were tendered. P.W. 9 has stated that he had no knowledge about the occurrence. This witness has even denied that he had gone to the shop of Kishori Prasad along with P.W. 3, Chanarik Yadav, the informant. The witnesses who have supported the prosecution case are P.Ws. 3, 4, 5 and 7. 7. P.W. 3 Chanarik Yadav is the informant of this case. He stated that at the relevant time, he was Mukhiya of Barokhar Gram Panchayat. At the relevant time, the villagers of Tankupi complained that the appellant was not selling the kerosene oil though he has lifted the same and kept in the shop of Kishori Prasad. He sold some kerosene oil to some customers but refused to give them saying that the kerosene oil has been exhausted. When this witness enquired from the appellant who told the same thing, thereafter, this witness went to meet Anchal Adhikari but he was not present. Then he went to Block Development Officer and filed the written report. He sold some kerosene oil to some customers but refused to give them saying that the kerosene oil has been exhausted. When this witness enquired from the appellant who told the same thing, thereafter, this witness went to meet Anchal Adhikari but he was not present. Then he went to Block Development Officer and filed the written report. This witness in his cross-examination has stated that the kerosene oil was to be distributed only after permission of competent authority i.e. the Anchal Adkhikari. The evidence of this witness is clear that kerosene oil was lifted on 28.10.1983 and it was not distributed to needy persons. 8. P.W. 4 Ghuran Yadav in his disposition has stated that the kerosene oil was being distributed from the shop of another person. This witness had gone to the shop for the kerosene oil but he was not given kerosene oil. This witness has stated that he has not given any statement before any body earlier. Similar is the evidence of P.W. 5 Birendra Kumar and P.W. 7 Briksh Rajbanshi who have stated that they, for the first time, have been examined before the Court. 9. Learned counsel for the appellant pointing out the evidences of P.Ws. 4, 5 and 7 has stated that their evidence cannot be relied as they have not made any statement before the police earlier and, for the first time, they have been examined before the Court. The Investigating Officer has not been examined. The specific case of the appellant is that there was no order of the competent authority to distribute the kerosene oil on the alleged date of occurrence. So on fact it is clear that on the date of occurrence there was no order to distribute the kerosene oil. On this point, the defence has examined the accused itself as D.W. 1 who has proved some documents to show that the permission was granted by the Anchal Akhikari to distribute the kerosene oil in presence of Nigrani Samittee on 8.11.1983. 10. It was for the prosecution to prove the case beyond all reasonable doubts that on the date of occurrence, the accused was having permission to distribute the kerosene oil. 10. It was for the prosecution to prove the case beyond all reasonable doubts that on the date of occurrence, the accused was having permission to distribute the kerosene oil. Though the informant has stated this fact in oral evidence but no documentary evidence has been produced to show that on the date of occurrence, the appellant was in receipt of the order of the competent authority to distribute the kerosene oil. On the other hand, it has come from the defence side that on the date of occurrence, the appellant was not having any authority to distribute the kerosene oil. 11. In view of conflicting evidence and also in view of non-examination of Investigating Officer, a doubt has been created regarding the prosecution version and once the doubt is created, the benefit of the same is to be given to the accused. Accordingly, I hold that the prosecution has not been able prove the charge beyond all reasonable doubts against the accused. 12. In the result, this appeal is allowed and the order of conviction and sentence of the appellant is set aside. The appellant is also discharged from the liabilities of the bail bonds.