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2008 DIGILAW 562 (PNJ)

Dhanpat Singh v. State of Haryana

2008-02-27

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction dated 17.3.1997, and the order of sentence dated 20.3.1997, rendered by the Court of Special Judge, Narnaul, vide which it convicted the accused/appellant Dhanpat Singh, for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (hereinafter called as ‘the Act’ only), and sentenced him to undergo rigorous imprisonment for a period of three years, and to pay a fine of Rs.2000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months. 2. The facts, in brief are that, the accused is the owner of “Ateli Service Station” (Indian Oil Petrol Pump), situated at Ateli. On 27.11.1990, the samples of diesel and petrol from the said petrol pump, were taken, by Shri Devender Singh, the then Sub Divisional Officer (C) -cum-Sub Divisional Magistrate, Narnaul. The sample bottles were deposited in the office of the Collector, Narnaul, on the same day. The same were sent to the Forensic Science Laboratory, Madhuban, for analysis. Vide report dated 14.2.1992 (Ex.PB) of the Assistant Chemical Examiner to Government of Haryana, F.S.L.Madhuban (Karnal), it was opined that the sample of petrol did not conform to ISI specifications of petrol and was found to contain approximately 5% kerosene oil. The sample of diesel was found according to the ISI specifications. On receipt of the report of the Forensic Science Laboratory, Madhuban, the District Food & Supplies Controller, Narnaul, wrote a letter dated 10.2.1994 to the Superintendent of Police, Narnaul, for the registration of a case against the accused, on the basis whereof, formal FIR, carbon copy of which is Ex.PA/1, was registered at Police Station Ateli. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Special Judge, Narnaul, charge under Section 7 of the Act, for contravening the provisions of Section 2 (e) and Section 4(b) of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, was framed, to which he pleaded not guilty, and claimed trial. 4. 3. On his appearance, in the Court of the Special Judge, Narnaul, charge under Section 7 of the Act, for contravening the provisions of Section 2 (e) and Section 4(b) of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, was framed, to which he pleaded not guilty, and claimed trial. 4. The prosecution, in support of its case, examined Shri Chand, SI (PW-1), Ram Sharma, Reader to S.D.M. (PW-2), J.B.Gondia, D.F.S.C., Rewari (PW-3), Vijay Kumar, Constable (PW-4), Ram Bhagat, SI (PW-5), Subhash Chander, ASI, Cooperative Societies, Police Cell, Ambala (PW-6), Krishan Kumar, ASI (PW-7), and Devender Singh, IAS, Deputy Commissioner, Gurgaon (PW-8). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Dhanpat Singh, accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that according to Section 7 of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, the power of search and seizure was given only to an officer of the State Government, not below the rank of Inspector, in the Department of Food and Civil Supplies, duly authorized and notified in the Official Gazette, by such State Government, or any Officer of an Oil Company, not below the rank of a Sales Officer. He further contended that, at the time of taking the samples, no official of the rank of Inspector of Food and Civil Supplies Department, was with the Sub Divisional Magistrate, and, as such, search and seizure proceedings, were vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. He further contended that, at the time of taking the samples, no official of the rank of Inspector of Food and Civil Supplies Department, was with the Sub Divisional Magistrate, and, as such, search and seizure proceedings, were vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The provisions of Section 14 of the Indian Petroleum Act, 1934, were applicable to search and seizure in the instant case. The said Section provides, inter alia, that the Central Government may, by notification in the Official Gazettee, authorize any officer by name or by virtue of office to enter any place, where petroleum is being imported, transported, stored, produced, refined and blended and to inspect and take samples, for testing of any petroleum found therein. In exercise of the powers conferred by that Section, the Central Government issued notification No.M.826 (2) dated 22.3.1937, authorizing various officers, including all Magistrates subordinate to the District Magistrates, to take samples of petroleum products. Rule 3 (k) of the Petroleum Rules, 1937 defines “sampling officer” as an officer authorized by the Central Government under sub Section (I) of Section 14 of the Indian Petroleum Act. Under the aforesaid notification, the Sub Divisional Magistrate, being subordinate to the District Magistrate, was, thus, competent to take the sample of petroleum, from the petrol pump of the accused. Under these circumstances, it could not be said that the sample were not taken by a duly authorized officer, and, as such, the search and seizure, as also the subsequent proceedings, were vitiated. The trial Court was right, in repelling the contention of the Counsel for the accused, in that regard, by placing reliance on the notification, referred to above. The reliance of the Counsel for the accused on Section 7 of the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, was misconceived. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 10. The next contention of the Counsel for the appellant, was to the effect that the provisions of Section 8 of the said order were not compled with, as the procedure of drawing the samples, and sending the same to the Examiner of the Forensic Science Laboratory, for analysis, was violated. 10. The next contention of the Counsel for the appellant, was to the effect that the provisions of Section 8 of the said order were not compled with, as the procedure of drawing the samples, and sending the same to the Examiner of the Forensic Science Laboratory, for analysis, was violated. Whatever the procedure was laid down under the relevant provisions of law was adopted. It was proved from the evidence, on record, that the samples were not tampered with until the same was analyzed, in the Forensic Science Laboratory. The evidence of Devender Singh (PW-8), in this regard, is very important. His statement was also duly corroborated by Shri Ram Sharma (PW-2), with whom the samples were deposited, and Vijay Kumar, Constable (PW-4), who took the sample bottles to the Office of the Forensic Science Laboratory, Madhuban. Under these circumstances, the submission of the Counsel for the appellant, that no due procedure was adopted for sampling and the samples did not remain untempered with, till the same reached the office of the Forensic Science Laboratory, Madhuban, being without merit, must fail, and the same stands rejected. 11. It was next contended by the Counsel for the appellant, that the samples were taken on 27.11.1990, the report of the analyst was received on 14.2.1992, and the complaint was filed on 10.2.1994, whereas, the FIR was registered on 22.3.1994. He further contended on account of delay of 3 years in registering the FIR, which remained unexplained, the case of the prosecution became doubtful. It is evident from Ex.PB, report of the Forensic Science Laboratory Haryana, Madhuban (Karnal), that the report regarding analysis was signed on 14.2.1992. There is nothing, in the report, as to when, the same was despatched to the office of the Deputy Commissioner, Narnaul. Even if, it is assumed that there was a delay in lodging the FIR, that did not, in any way, affect the merits of the case. The maximum punishment, which was provided for the offence punishable under Section 7 of the Act, is 7 years. It, therefore, could not be said that the complaint was barred by time. The delay, therefore, did not cast any doubt, on the case of the prosecution. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected. 12. It, therefore, could not be said that the complaint was barred by time. The delay, therefore, did not cast any doubt, on the case of the prosecution. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected. 12. Last of all, the Counsel for the appellant, submitted that the occurrence relates to 27.11.1990, whereas the accused/appellant was convicted by the trial Court on 20.3.1997. He further contended that the appellant has been facing the protracted criminal proceedings, for the last more than 17 years. He further contended that the appellant has got no previous criminal history. He further contended that the appellant may be released on probation of good conduct. He also placed reliance on Silak Ram Vs. Haryana State 2005(2) RCR (Criminal) 843, Satinder Singh Vs. Punjab State 2003(4) RCR (Criminal) 616, M/s Maya Ram and Sons Vs. State of Haryana 2003(4) RCR (Criminal) 114, Virender Kumar Vs. State of Haryana 2004(2) RCR (Criminal) 775, and Subhash Chand and another Vs. State of Punjab 2004(1) RCR (Criminal) 332, to support his contention, wherein the appellants were released on probation of good conduct, for the offence punishable under Section 7 of the Act. In Silak Ram’s case (supra), the appellant had been facing the agony of protracted criminal proceedings for 21 years, and he was ordered to be released on probation of good conduct. In Satinder Singh’s case (supra), the appellant had been facing the criminal proceedings, under Section 7 of the Act, for 15 years, and was not a previous convict. He was released on probation of good conduct. In M/s Maya Ram’s case (supra), the appellants had been facing the protracted criminal proceedings, for the offence, punishable under Section 7 of the Act, for the last 14 years, and they were released on probation of good conduct. In Virender Kumar’s case (supra), the appellant had been facing the agony of protracted criminal proceedings, for the offence punishable under Section 7 of the Act, for the last 9 years, and he was ordered to be released on probation of good conduct. In Subhash Chand’s case (supra), the appellants had been facing the protracted criminal proceedings, for the offence punishable under Section 7 of the Act, for the last 12 years, and they were released on probation of good conduct. In Subhash Chand’s case (supra), the appellants had been facing the protracted criminal proceedings, for the offence punishable under Section 7 of the Act, for the last 12 years, and they were released on probation of good conduct. There is, therefore, precedental profusion, ordering the release of the accused/appellants, in the aforesaid cases, on probation of good conduct, for the offence punishable under Section 7 of the Act. In the instant case, the appellant is not a previous convict. He has got no previous criminal history. Keeping in view the facts and circumstances of the case, antecedents of the appellant, and the fact that he has been facing the protracted criminal proceedings for the last 17 years, in my opinion, it is a fit case, in which the sentence awarded to him, should be set aside, and he be released on probation of good conduct. 13. For the reasons recorded hereinbefore, the appeal is partly accepted. The judgment of conviction, rendered by the trial Court, is maintained. The order of sentence is set aside, and the appellant is ordered to be released on probation of good conduct, on furnishing a personal bond, in the sum of Rs.15000/- with one surety, in the like amount, to the satisfaction of the Chief Judicial Magistrate, Narnaul, for a period of 3 years, to appear and receive sentence, as and when called upon to do so, during this period, and in the meantime, to keep the peace, and be of good behaviour, and also furnish an undertaking not to commit, such an offence, during the said period. The appellant shall also pay costs of the proceedings, to the tune of Rs.50000/-. The appellant shall furnish the probation bonds and pay the costs of the proceedings, within a period of 20 days, from the date of receipt of certified copy of the judgment, by the concerned Court. Failure, on the part of the appellant, to furnish the probation bonds, and deposit the costs of proceedings, with the period stipulated, shall entitle the Court of the Chief Judicial Magistrate, Narnaul, to comply with the judgment, in accordance with law, with due promptitude. ———————————