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2010 DIGILAW 2750 (PNJ)

Madan Lal v. State of Haryana

2010-09-24

A.N.JINDAL

body2010
JUDGMENT Mr. A.N. Jindal, J.:- Out of the four accused, Hari Om and Dhir Singh were acquitted, whereas, the remaining two accused, namely; Madan Lal and Abhiney Kumar were convicted for the offence under Section 7 of the Essential Commodities Act and were sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-. 2. In nutshell, the allegations are that on 30.01.1996, Maya Chand Assistant Sub Inspector, Police Station City Gurgaon along with other police officials was present in connection with the patrolling at Bhuteshwar Mandir, Gurgaon, where, he received secret information that Madan Lal and Abhiney Kumar are smugglers of H.P.Gas and they bring gas cylinders from the agency and further transfer gas from full cylinders to empty cylinders in a room in Arjun Nagar. Believing the information to be reliable, he called upon M.P.Singla, Inspector, Food and Supplies over a telephone and joined him in the raiding party and raided the disclosed premises, whereupon they found accused Madan and Abhiney transferring gas from one cylinder to the other. They were arrested at the spot. It was further discovered that two cylinders were found in the three-wheeler parked outside the house while 19 cylinders were found inside the house. The seals of these cylinders had been broken. All 21 cylinders recovered at the spot were taken to Anand Gas Service, where, on weighment, two cylinders were found empty, while the others were having less gas to the extent of 800 gms to 4 kgs. All 21 cylinders, pipe used for transferring the gas, three wheeler bearing Reg.No.HYG-4822 were taken into possession and ruqa was sent to the Police Station, upon which formal First Information Report was registered against the accused for having contravened the provisions of Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. On completion of the investigation, challan against the accused was presented in the Court. 3. Finding a prima facie case against the accused, they were charged under Section 7 of the Essential Commodities Act read with Section 120-B of the Indian Penal Code, to which they pleaded not guilty and opted to contest. 4. On completion of the investigation, challan against the accused was presented in the Court. 3. Finding a prima facie case against the accused, they were charged under Section 7 of the Essential Commodities Act read with Section 120-B of the Indian Penal Code, to which they pleaded not guilty and opted to contest. 4. The prosecution in order to substantiate the charges examined Head Constable Bhanwar Singh (PW1), who registered the formal First Information Report; Sandeep Singh Jossan, Senior Sales Officer, Hindustan Petroleum (PW2), who proved the appointment letter of Dhir Singh and Hari Om as dealers of LPG for Gurgaon; M.P.Singla, Inspector, Food and Supplies (PW3), who was a member of the raiding party and he saw Madan and Abhiney Kumar transferring gas from one cylinder to another; and Maya Chand Assistant Sub Inspector (PW4), who is the Investigating Officer of the case. 5. When examined under Section 313 of the Code of Criminal Procedure, 1973, the accused denied all the incriminating circumstances appearing against them. Accused Dhir Singh admitted having been the dealer of the LPG of HP for Gurgaon, and having taken the LPG cylinders on ‘superdari’. However, he claimed his false implication. Accused Hari Om also took the identical plea. Both Madan Lal and Abhiney Kumar – accused also pleaded their false implication. The trial ended in conviction of Madan Lal and Abhiney Kumar, while accused Dhir Singh and Hari Om were acquitted. 6. Arguments heard. Record perused. 7. The prime contention raised by the counsel for the accused – appellant is with regard to the competency of the Assistant Sub Inspector Maya Chand to arrest the appellant. No doubt, ASI Maya Chand (PW4) had arrested the accused on 30.1.1996 when Section 10-AA of the Essential Commodities Act was invoked. Section 10-AA was deleted later on as the same was operative only for fifteen years of the commencement of the Essential Commodities (Special Provisions) Act, 1981, but this Section does not in any way create any hindrance over the competency of ASI Maya Chand (PW4) to arrest the accused. First of all, the appellant was not arrested only under Section 7 of the Act, but he was arrested along with other accused for the offence under Section 120-B IPC also. First of all, the appellant was not arrested only under Section 7 of the Act, but he was arrested along with other accused for the offence under Section 120-B IPC also. It is fundamentally clear that if the accused is arrested by a police officer for an offence, for which he is competent to do so, then he cannot be held to be incompetent for the other offences, which he (accused) had committed along with the first offence. Further more, Section 10-AA of the Act of 1989 reads as under:- “Section 10-AA. - Power to arrest – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no officer below the rank of an officer in charge of a police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of committing an offence punishable under this Act.” 8. The aforesaid Section deals with the arrest of the accused by a police officer, in-charge of the police station or any police officer authorised by him. It is pertinent to note that Section 10-AA starts with non obstante clause. Under Section 41 of the CrPC, any police officer may without an order from the Magistrate and without warrant arrest any person if one of the clauses thereunder are attracted which includes Clause (a), which provides who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists, of his having been so concerned. Notwithstanding the fact that a Gazette Notification dated 11.4.1967 came into force, vesting the power of investigation to Sub Inspector and other officers above the Sub Inspector under the Act, yet this fact cannot be lost sight of as the offence under Section 120-B IPC being cognizable, any police officer could arrest the accused. Therefore, his arrest qua the offence under Section 7 of the Essential Commodities Act is not illegitimate for which he has not been caused any prejudice by the arrest so made. 9. The counsel for the appellant has further urged that the accused were merely servants and the main accused are acquitted; no independent witness was associated during raid and there are contradictions in the statements of the witnesses, therefore, the appellant deserves to be given the benefit of doubt. 10. 9. The counsel for the appellant has further urged that the accused were merely servants and the main accused are acquitted; no independent witness was associated during raid and there are contradictions in the statements of the witnesses, therefore, the appellant deserves to be given the benefit of doubt. 10. Having given my thoughtful consideration to the rival contentions, I do not find merit in the aforesaid submissions. M.P.Singla (PW3) Inspector, Food and Supplies and Assistant Sub Inspector Maya Chand (PW4) are quite consistent in their statements qua the time, place and the manner in which the occurrence had taken place. The Trial Court has appreciated the evidence in right perspective. By re-analysing the evidence, it is observed that both the witnesses have stated that the accused were found transferring the gas from one cylinder to other cylinder, as such, the cylinders recovered were found containing lesser gas than the standard gross weight. Minor discrepancies are bound to occur in the statements of the truthful witnesses. The Investigating Officer made best efforts to join the independent witnesses, but none was ready to join and it has been specifically stated that they expressed their helplessness in the matter. Not even a suggestion was given to the aforesaid two witnesses that they were in any way having any animus or enmity against the accused for falsely implicating them in the case. 11. Assistant Sub Inspector Maya Chand (PW4) may be interested in the success of the case, but M.P.Singla (PW3) had no axe to grind by getting the accused convicted, therefore, the statements of the witnesses are reliable. The Trial Court has rightly acquitted Hari Om and Dhir Singh as they were not found present at the place of the occurrence and no sufficient evidence could be led by the prosecution, which could enable the Court to hold them guilty, but the common intention of these two accused appears to be writ large. 12. The prosecution has proved on record the notification dated 3.8.1993 issued by the Ministry of Petroleum and Natural Gas (Ex.PE) notifying Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993. Having gone through the said order, it transpires that the accused have contravened the provisions of sub-Section (3) and (4) of the Order. The Section 3 of the order reads as under:- “3. Restriction on possession, supply and consumption of liquified petroleum gas:- (1) and (2) ... Having gone through the said order, it transpires that the accused have contravened the provisions of sub-Section (3) and (4) of the Order. The Section 3 of the order reads as under:- “3. Restriction on possession, supply and consumption of liquified petroleum gas:- (1) and (2) ... ... ... (3)No person shall fill any cylinder with liquified petroleum gas or transfer liquified petroleum gas from one cylinder to another cylinder or from one container to another container unless authorised by the Chief Controller of Explosives. (4)No transporter or delivery person shall deliver or cause to be delivered liquified petroleum gas either in cylinders or in bulk to any person other than the consumer for whom the liquified petroleum gas is meant for.” Section 4(c) of the Orders further reads as under:- “4. Restriction on storage and transport of liquified petroleum gas. No person shall – (a) and (b) ... ... ... (c) remove the seal prior to use of the cylinder: provided that the distributor or his authorised representative or the delivery person may remove such seal with the consent of the consumer either for testing, checking or fitting the cylinder;” 13. In the instant case, at the time of the raid, the accused were found in possession of 21 cylinders. On examination of the cylinders, 19 gas cylinders were found with broken seals, two were found empty and one pipe meant for the purpose of transferring the gas from one cylinder to another was also recovered. The quantity in the gas cylinders was short by 800 gms to 4 kgs. There is no such evidence that the accused were authorised to transfer the gas from one cylinder to the other, or they could break the seals of the cylinders. All this appears to have been done to cheat the general public, as the price for full cylinder was recovered in lieu of supply of cylinder with lesser quantity of gas. As such, this Court could make no exception to the view expressed by the Trial Court, whereby, the appellant has been convicted for the offence for which he was charged. No grounds to interfere. Dismissed. Copy of the order be sent to Chief Judicial Magistrate, Gurgaon for compliance. ------------