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Madhya Pradesh High Court · body

2009 DIGILAW 928 (MP)

Sheikh Ahmad v. State of M. P.

2009-08-04

K.S.CHAUHAN

body2009
JUDGMENT 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 28.11.1998 passed by Special Judge, Sagar in Special Case No.84/98 whereby the appellant has been convicted under section 3/7 of the Essential Commodities Act, 1955 and sentenced to RI for 3 months with fine of Rs.5001-, in default of payment of fine additional RI for 3 months. 2. Prosecution case in short is that on 24.11.1997 complainant Hariram submitted written application to the Food Officer, Sagar to the effect that he purchased 5 litres kerosene from Hawker Sheikh Ahmad at the rate of Rs.3/- per litre but which was found only 3-1/2 litres on measurement. When he made complaint to him he started quarrelling and abusing him and asked to do whatever he likes. The Assistant Food Officer, Sagar directed Sanmativeer Jain, Food Inspector to inquire the matter. In compliance of this order Sanmativeer Jain (PW4) conducted the inquiry. He reached on the spot where he found that no kerosene was being supplied. He directed Hawker to distribute the same 2- 2 litres per consumer who were present there. He recorded the statement of complainant. On measurement kerosene of complainant Hariram was found only 4 litres. He found that there was contravention of the directions issued by the Collector, Sagar on 25.11.1997. The concerned authority directed to lodge FIR. In its compliance Sanmativeer Jain, Food Inspector lodged report on 4.12.1997 at Police Station Cantt. where the Crime No.519/97 under section 3/7 of the Essential Commodities Act was registered against the appellant. After completing the investigation the charge-sheet was filed in the Court of Special Judge, Sagar. 3. The accused was charged under section 3/7 of the Essential Commodities Act. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as 8 witnesses and the accused also examined one witness in his defence. After appreciating the evidence trial Court found him guilty under section 3/7 of the Essential Commodities Act and sentenced thereunder as stated hereinabove in para No.1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. After appreciating the evidence trial Court found him guilty under section 3/7 of the Essential Commodities Act and sentenced thereunder as stated hereinabove in para No.1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Learned counsel for the appellant submitted that the trial Court has not appreciated the evidence in proper perspective and committed an illegality in placing the reliance on prosecution witness and rejecting the defence version. The complainant Hariram has not supported the prosecution case who has clearly stated that he took 5 litres kerosene from the appellant and on measurement it was found correct. Therefore, no offence is proved. Sudhir Kumar Rathore (PW8) has also not supported the prosecution case. This witness being in relation with Khushal Singh Rathore has not supported the prosecution case. The appellant has been falsely implicated at the instance of Khushal Singh Rathore because the appellant got attached the property of Kishan Singh Rathore the father of Khushal Singh Rathore and in retaliation the complaint was made by Hariram at his instance. The complaint was not read over to Hariram who is an illiterate person. He kept the kerosene in the precincts of the Press of Khushal Singh Rathore (PW2) hence tampering with the same cannot be ruled out. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 5. On the contrary, Shri G.P. Singh, learned Deputy Government Advocate appearing on behalf of respondent-State supported the impugned judgment, finding and sentence mainly contending that two litres kerosene was required to be supplied to each consumer whereas he has supplied 5 litres kerosene to Hariram and on measurement the supplied kerosene was also found less in quantity. Thus, he has contravened the provisions of sub-clause 9 of M.P. Kerosene Dealers Licensing Order, 1979 and has rightly been convicted and sentenced under section 3/7 of the Essential Commodities Act which does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under section 3/7 of Essential Commodities Act? 7. Hariram (PW 1) is star witness to this case who has not supported the prosecution case. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under section 3/7 of Essential Commodities Act? 7. Hariram (PW 1) is star witness to this case who has not supported the prosecution case. He has stated that he purchased 5 litres kerosene from appellant for Rs.15/-. He purchased it for all his family members. He has two sons and one daughter. The kerosene was not supplied in less quantity and on measurement also the kerosene was found correct. This witness has been declared hostile by prosecution. This witness has also not supported the material facts mentioned in complaint Ex.P-1. 8. It is evident from the statement of Khushal Singh Rathore (PW2) that he himself carried Hariram (PW 1) to Food Office, met with an advocate and got the complaint written and took his thumb impression. Thus, this complaint was neither written by complainant nor written at his directions. He only affixed thumb impression without knowing the facts of Ex.P-1. This is also the reason as to why he could not deposed regarding the facts of this document. Thus, the main witness of prosecution has not supported prosecution case but some other witnesses have given evidence against appellant. 9. Sanmativeer Jain (PW4) conducted the inquiry and found kerosene less in quantity. During course of inquiry Sanmativeer Jain (PW4) prepared Panchnama (Ex.P-3) before Khushal Singh Rathore (PW2), Rajesh (PW3) and Sudhir Kumar Rathore (PW8). Out of them Sudhir Kumar Rathore did not support but Khushal Singh Rathore and Rajesh supported such fact. The evidence of these witnesses is that the kerosene was found less in quantity. But according to complainant Hariram (PW1) himself the quantity of kerosene was not deficient. Thus, there is inconsistency in between the statements of Hariram (PWI) and Khushal Singh Rathore (PW2), Rajesh (PW3) and Sanmativeer Jain (PW4) hence the evidence is not reliable. 10. The question is that why Khushal Singh Rathore (PW2) and Rajesh (PW3) are giving evidence against the appellant. It is evident that previously this appellant was also an employee of Rathore Press, Sagar but subsequently some dispute arose regarding fund and the proceedings before the Labour Court started. In execution proceedings the property was got attached. It appears that there was enmity of this appellant with Khushal Singh Rathore (PW2) and his family members. It is evident that previously this appellant was also an employee of Rathore Press, Sagar but subsequently some dispute arose regarding fund and the proceedings before the Labour Court started. In execution proceedings the property was got attached. It appears that there was enmity of this appellant with Khushal Singh Rathore (PW2) and his family members. This is the reason why Khushal Singh Rathore is giving evidence against him. Since Hariram was Palledar in his Press, therefore, he managed to get this complaint made by Hariram. It is another thing that subsequently Hariram did not support the prosecution case. Rajesh (PW3) being an employee of Press has given evidence against the appellant. Thus, the possibility of falsely implicating the appellant can't be ruled out at the instance of Khushal Singh Rathore (PW2). 11. Apart from it, there are contradictions in the statements of the witnesses with regard to the fact whether Hariram carried the container of kerosene to the Food Office or not. According to Khushal Singh Rathore (PW2) complainant carried the container whereas Majhle Lal Tekam (PW5) has denied this fact. It has also been brought on record that Hariram kept kerosene container in the precincts of Press and after long time it was measured, therefore, the tampering with it can't be ruled out. It is not the situation that after purchasing the kerosene the same was again measured immediately and found less. Otherwise also the evidence of complainant Hariram (PW 1) is that the supplied kerosene was not deficient in quantity and he purchased it for all the members of his family. In such circumstances there is no question of contravention of the provisions of M.P. Kerosene Dealers Licensing Order, 1979. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 12. Consequently, appeal succeeds and is allowed. The conviction and sentence passed by the trial Court under section 3/7 is hereby set aside. The appellant is acquitted from the charge under section 3/7 of the Essential Commodities Act. He is on bail. His bail bonds are discharged. Fine amount, if deposited, be refunded to him.