Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 90 (MP)

Ramsingh v. State of M. P.

2009-01-20

S.S.DWIVEDI

body2009
ORDER 1. The appellant has preferred this appeal aggrieved by the judgment of conviction and sentence dated 7.9.1995 passed by Special Sessions Judge, Dewas in Special Sessions Trial No. 1/93, whereby held the appellant-accused guilty for the offence under section 3 read with 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the "EC Act") and sentenced him to one year RI. 2. Briefly stated the facts of the case are that in the intervening night of 22 and 23 of February, 1992, the Police Sub- Inspector Kalpna Sharma and Asstt. Sub-Inspector P.N. Kaushal posted at police station Newri received a secret information that near village Arlavada, the appellant accused was carrying kerosene oil illegally in the matador. On this information, the police party reached on the spot. The said matador was being driven by the appellant-accused. On checking, three drums kept in the matador were found containing kerosene oil in it and total quantity is found to be 600 litre. The police officers concerned had seized the aforesaid kerosene oil with container and matador as per the seizure memo. The appellant-accused was not having any valid licence or permit for transportation or possession of the aforesaid kerosene oil. The police officers concerned returned back to the police station, registered a case for violation of the Kerosene Control Order, 1979 punishable under section 3 read with 7 of the EC Act and after due investigation the charge sheet has been filed. 3. The appellant-accused abjured the guilt and his defence was of· false implication in this case. The learned trial Court after due appreciation of the evidence on record held the appellant-accused guilty for the offence punishable under section 3 read with 7 of the EC Act and sentenced him as stated hereinabove. Aggrieved by which the appellant has preferred this appeal. 4. Having heard learned counsel for the appellant as well as Dy. Government Advocate for the State and perused the record. 5. It is submitted by learned counsel for the appellant that the seizing officer has not proved as to how he measured total quantity of kerosene oil seized from matador concerned. 4. Having heard learned counsel for the appellant as well as Dy. Government Advocate for the State and perused the record. 5. It is submitted by learned counsel for the appellant that the seizing officer has not proved as to how he measured total quantity of kerosene oil seized from matador concerned. It is further submitted that after seizure, the sample of the concerning oil alleged to be kerosene oil has not been sent for any chemical analysis or chemical examination to any authorized laboratory or Indian Oil Corporation, on which basis, this can be inferred that the alleged seized oil is kerosene oil which ought to be possessed by legally authorized person only. It is further submitted that prosecution has also utterly failed to prove the fact that from where the appellant accused had brought the aforesaid oil as per the memo Ex. P-l which is prepared by the seizing officer under section 27 of the Evidence Act. It is further submitted that no notification with regard to the control order has been proved by the prosecution also for which violation the· appellant accused can be held guilty for the offence under section 3 read with 7 of the EC Act. In such circumstances, the learned trial Court has wrongly held the appellant-accused guilty for the aforesaid offence, hence, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. Learned Dy. Government Advocate appearing on behalf of the State supported the impugned judgment and submitted that the prosecution has proved the fact that 600 litres kerosene oil have been seized from the pros session of the appellant for which he was not having any valid licence or permit for its transportation and valid possession and it is the duty of the appellant-accused to explain about his possession over the kerosene oil concerned and trial Court has rightly come to the conclusion about the guilt of the appellant-accused and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court, hence, prayed for dismissal of the appeal. 7. 7. The prosecution has fully rested upon the statement of P.N. Kaushal (PW 4), the seizing officer who only proved the fact that on the basis of secret information, when the police party reached near the village Arlavada, at that time, a matador came there whose registration No. was MOB 6603 which was being driven by the appellant-accused and in this matador, three drums were found which contained kerosene oil. On inquiry, the appellant-accused explained that he had brought this kerosene oil from Dewas and had not produced any valid licence or permit for its· possession and transportation for the aforesaid oil. This was seized as per seizure memo Ex. P-3. On perusal of the seizure memo Ex. P-3, it is not apparent that after seizure, the total quantity of the kerosene oil was measured by the seizing officer, on which basis, total quantity of the seized kerosene may be found to be 600 litres as mentioned in the seizure memo Ex. P-3. It is also apparent that only on the basis of fact that all three containers (drums) are having capacity of 200 litres on which basis only inference can be drawn by the seizing officer that these three drums contained 600 litres kerosene. This appears to be hypothetical explanation of the seizing officer, whereas he ought to have weighed the quantity from the petrol pump authorized for it, then only, the total seized quantity can be ascertained. This appears to be material lacuna in the prosecution case for which the appellant-accused is entitled to get benefit. 8. It is also apparent that after seizure of the concerning kerosene oil, no sample has been sent for its chemical examination to the authorized laboratory of the Indian Oil Corporation concerned. The concerning seizing officer P.N. Kaushal (PW 4) stated that sample had also been taken out but no examination report was produced and proved by the prosecution on which basis it may be conclusively found proved that the seized article is kerosene oil as defined under the Kerosene Control Order. This appears to be material lacua in the prosecution case for which benefit ought to be given to the appellant-accused. 9. Other witnesses examined by the prosecution are Gopisingh (PW 1), Dhulji (PW 2) and Kailashchandra Tiwari (PW 3). They only stated that certain papers have been prepared by the police officers concerned. They signed and obtained as per Ex. This appears to be material lacua in the prosecution case for which benefit ought to be given to the appellant-accused. 9. Other witnesses examined by the prosecution are Gopisingh (PW 1), Dhulji (PW 2) and Kailashchandra Tiwari (PW 3). They only stated that certain papers have been prepared by the police officers concerned. They signed and obtained as per Ex. P-3 and stated that some kerosene oil has been seized contained in three drums. 10. Thus, on overall re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that whatever liquid has been seized from the possession of the appellant is kerosene as defined under the EC Act and quantity of seized oil has also not been proved. Therefore, the contravention of any of the provisions of Kerosene Control Order which is punishable offence under section 3 read with 7 of the EC Act is not proved by the prosecution. Hence, the finding of conviction recorded by the trial Court appears to be erroneous and liable to be set aside. 11. Resultantly, appeal preferred by the appellant is allowed. The impugned judgment of conviction and sentence passed by the trial Court is set-aside and the appellant-accused is acquitted from the charge under section 3 read with 7 of the EC Act. The appellant is on bail. His bail bonds stand discharged forthwith.