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2010 DIGILAW 2299 (PNJ)

Raj Kumar v. State Of Haryana

2010-08-12

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. This judgment of mine shall dispose of two appeals, namely, CRA No. 1630-SB of 2002 and CRA No. 1678-SB of 2002 because of having arisen from the common judgment and order dated 30.09.2002 (for short as `impugned judgment) passed by the learned Special Judge, Rohtak (for short as `trial Court), in FIR No. 19 dated 5.1.1996 registered at Police Station, City, Rohtak, under Section 7 of the Essential Commodities Act, 1955 (for short `the Act). However, the facts are being derived from CRA No. 1630-SB of 2002. 2. The present criminal appeals have been preferred by the accused-appellants, namely, Raj Kumar and Ravi Raj, challenging the judgment and order dated 30.09.2002, passed by the learned trial Court, thereby convicting the accused (herein appellants) for committing offence under Section 7 of the Act for selling LPG in black market and sentencing each of them to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for one month each. 3. The brief facts of the case, as set up by the prosecution, are that on 5.1.1996, a compliant was lodged by the complainant-Rajesh Kumar, with the Deputy Commissioner, Rohtak, to the following effect : "I am a consumer of cooking gas with Anand Gas Service and facing problem for cooking gas for the last several days. Today cooking gas is available but the Distributor has not issued a slip to me and are saying that gas stock has been sold out. I visited the godown immediately and saw that cylinders were being sold for Rs. 130/- each against fixed price of Rs. 97/- each. You are requested to look into my problem." 4. This complaint was sent by the Deputy Commissioner, Rohtak, to the Addl. S.P., Rohtak, for necessary action whereupon the latter called for the SHO with police force and handed over the said complaint to him directing him to conduct a raid. Consequently, the SHO registered the FIR under Section 7 of the Act, on 5.1.1996. 5. Shri S.K. Gupta, AFSO, Harish Chander and Jodha Ram, Inspectors of Food and Supplies Department, Rohtak, were associated with the raiding party as witnesses. Two currency notes of denomination of Rs. 50/- each bearing serial No. 4DD277407 and 8WD-126650 and three currency notes of denomination of Rs. 5. Shri S.K. Gupta, AFSO, Harish Chander and Jodha Ram, Inspectors of Food and Supplies Department, Rohtak, were associated with the raiding party as witnesses. Two currency notes of denomination of Rs. 50/- each bearing serial No. 4DD277407 and 8WD-126650 and three currency notes of denomination of Rs. 10/- each bearing serial No. 06K-749946, 87B278094 and 15 L244223 were handed over by complainant-Rajesh Kumar to S K Gupta, AFSO, who had put his initials on the said currency notes. Person of the complainant was searched as per rules and Rs. 130/- aforesaid along with empty cooking gas refill No. 272583 were handed over to him. He was directed to give Rs. 130/- aforesaid and empty refill and collect a filled cooking gas refill from the employees of the distributor and thereafter, give signal to the raiding party by moving his hand on his head. Memo about handing over the currency notes and empty refill to the complainant was prepared and was signed by the S.K. Gupta, Harish Chander, Jodha Ram, and also by complainant-Rajesh Kumar. Thereafter, the raiding party reached Jind bye-pass near village Sunderpur Approach road. The complainant, after giving empty refill and Rs. 130/-, obtained a filled cooking gas refill and then gave signal to the raiding party whereupon the said raiding party rushed to the spot where Ravi Raj and Raj Kumar, both employees of M/s Anand Gas Service, were present. Raj Kumar was having 261 refill vouchers. There were 280 empty cylinders in the truck. Raj Kumar was also having Rs. 230/- in his pocket which including Rs. 130/-, which bore the initials of AFSO-S.K. Gupta. Empty refill No. 272583 was also recovered from the empty refill stock of the accused. Photographer was called and photographs were taken. Filled 41 LPG refills were deposited in the godown of M/s Anand Gas Service, recovery memo, Ex.PH, was prepared and signed by S.K. Gupta, AFSO, Harish Chander and Jodha Ram both Inspectors of Food and Supply Department. Rs. 130/- initialed by S.K. Gupta, AFSO, were recovered from Raj Kumar, accused, which were taken into its possession by the police. 6. After completion of the investigation, the accused was charge-sheeted under Section 7 of the Act to which he pleaded not guilty and claimed trial. 7. Rs. 130/- initialed by S.K. Gupta, AFSO, were recovered from Raj Kumar, accused, which were taken into its possession by the police. 6. After completion of the investigation, the accused was charge-sheeted under Section 7 of the Act to which he pleaded not guilty and claimed trial. 7. In order to substantiate the charges against the accused, the prosecution examined as many as 9 witnesses, viz., ASI Mahender Singh as PW1; ASI Hari Om as PW-2; Kamal Parkash, Photographer, as PW3; Sudershan Kumar, Assistant Manager, Indian Oil Corporation, World Trad Centre, New Delhi, as PW-4; Satish Kumar Anand, proprietor of M/s Anand Gas Service, as PW-5; Rajesh, complainant, as PW6, S.K. Gupta, DFSO (Retired), as PW-7; Fateh Singh, DSP (CID) Crime, as PW8 and Baldev Singh, registered owner of truck No. HR38A-0322 as PW9. 8. In their statements under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution case and denied all the incriminating evidence and circumstances against them and pleaded innocence. In defence, the accused examined Ram Pal Singh, Manager of M/s Anand Gas Service, as DW1. 9. The learned trial Court, after hearing both the parties, convicted the accused-appellants under Section 7 of the Act and sentenced them for the term as indicated in para 2 of this judgment, aggrieved from which, the present criminal appeals have been preferred. 10. The present appeals were admitted by this Court on 18.10.2002 and 25.10.2002, respectively. 11. Learned counsel for the appellant has submitted that no evidence has come on record that Anand Gas Service had its operational area from where the filled cylinder was recovered. He has also submitted that there is no evidence that the accused made the demand of extra amount of Rs. 33/-. There is also no record to the effect that a balance amount of Rs. 33/- was not returned by the accused. 12. It has further been argued that signed currency notes of the denomination of Rs. 50/- (two in number) and that of Rs. 10/-(one in number) were not put to the complainant, Rajesh, PW6 and S.K. Gupta, AFSO, PW7. As per the case of the prosecution, empty and filled cylinders were seized from the godown. However, these cylinders were neither produced in evidence nor put to the accused/appellant in his statement under Section under Section 313 Cr.P.C., therefore, the same cannot be read into evidence against the appellant. 13. As per the case of the prosecution, empty and filled cylinders were seized from the godown. However, these cylinders were neither produced in evidence nor put to the accused/appellant in his statement under Section under Section 313 Cr.P.C., therefore, the same cannot be read into evidence against the appellant. 13. Learned counsel has further argued that no independent was joined. The complainant has stated that a number of persons were present at the spot whereas according to the statement of Fateh Singh, DSP, CID (Crime), PW8, no consumer was present at the site. 14. It is further argued that there is major discrepancy with regards to the time of conducting the raid. As per the complainant, they started from the office of Superintendent of Police at 4.00pm, whereas as per SK Gupta, AFSO, PW7, they started from the office of Superintendent of Police at 3 O clock. 15. Learned counsel has next argued that there is no evidence on record showing that the appellant Raj Kumar was employee with Anand Gas Agency. He has referred to the statement of Satish Kumar Anand, PW5, owner of the Anand Gas Service, who has stated that appellant Raj Kumar was not their employee. 16. On the other hand learned counsel for the State has submitted that recovery of Rs. 33/- was effected from the appellant alongwith filled gas cylinder. Therefore, the case of the prosecution is fully established on the basis of this piece of evidence. 17. I have heard the learned counsel for the parties and perused the record with their able assistance. 18. As per statement of S.K. Gupta, AFSO, PW-7, it is made out that tainted currency notes were handed over to the complainant with the instruction to give the pre-decided signal after receiving the filled cylinder. However, as per statement of the complainant, he has not deposed whether any signal was given by him to the shadow witness. According to S.K.Gupta, PW-7, they started from the office of Superintendent of Police at 3.00 p.m. and all the members of the raiding party travelled together from the office of Supdt. of Police to the place of occurrence. The complainant Rajesh, PW6, was dropped at a distance 200 yards from the place of occurrence. According to S.K.Gupta, PW-7, they started from the office of Superintendent of Police at 3.00 p.m. and all the members of the raiding party travelled together from the office of Supdt. of Police to the place of occurrence. The complainant Rajesh, PW6, was dropped at a distance 200 yards from the place of occurrence. The accused were apprehended at 3.30 p.m., whereas as per the statement of Inspector Fateh Singh, PW-8, a telephonic message was received by him at 3.30 and an entry in this regard was also made by him. As per the complainant, there were large number of persons present at the time of occurrence, whereas as per the statement of Fateh Singh, DSP (CID), PW8, no consumer was present at the spot. The fact of employment of the appellant Raj Kumar with Anand Gas Agency is also not established on record. Therefore, there are material contradictions in the statements of prosecution witnesses. 19. In the instant case, demand and acceptance of tainted money is also not proved. There is no mention of the fact in the statement of the complainant that the appellant demanded an extra amount of Rs. 33/- and in response there- to, the alleged tainted currency notes were given to the appellant. Moreover, the appellant was not confronted with the incriminating material by putting the demand and acceptance of the tainted money during the course of recording his statement under Section 313 of Cr. P.C., as such, this material cannot be read in evidence against the appellant. There are material discrepancies in the statements of complainant-PW6; S.K. Gupta, AFSO, PW7 and Fateh Singh, DSP (CID), PW8, with regard to the fact whether the Investigating Officer gave any opportunity to join the independent witness. 20. Apart from the above, the prosecution has failed to place any evidence on record showing that the complainant was a registered consumer of Anand Gas Service. No document or consumer card or voucher issued by the Anand Gas Agency has been placed on record. From the statements of Satish Kumar, PW5 and Ram Pal Singh, DW-1, it is not conclusively proved that the appellant was in the service with M/s Anand Gas Service. 21. No document or consumer card or voucher issued by the Anand Gas Agency has been placed on record. From the statements of Satish Kumar, PW5 and Ram Pal Singh, DW-1, it is not conclusively proved that the appellant was in the service with M/s Anand Gas Service. 21. Keeping in view the material contradictions in the statements of prosecution witnesses and in the absence of conclusive proof that the complainant, PW6, is a registered consumer with M/s Anand Gas Service, this Court thus holds that the prosecution has failed to prove its case beyond reasonable doubt. 22. So far as Crl. Appeal No. 1678-SB of 2002 is concerned, the same also fails because in Crl. Appeal No. 1630-SB of 2002 the prosecution has failed to prove its case beyond reasonable doubt and this appeal, having arisen from the same judgment based on the same set of evidence also fails. 23. For the reasons mentioned above, both the appeals in hand are allowed. The judgment and order dated 30.09.2002 passed by the learned trial Court is set aside. The appellants, who are stated to be on bail, are acquitted of the charge against them. Their bail bonds shall stand discharged. 24. Since the main appeal is disposed of by this judgment, the misc. application pending, if any, shall also stand disposed of. Appeal disposed of.