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Madhya Pradesh High Court · body

2011 DIGILAW 1157 (MP)

Ramnaresh v. State of M. P.

2011-10-11

RAKESH SAKSENA

body2011
JUDGMENT 1. Appellants have filed this appeal against the judgment dated 15.1.l996 passed by learned Special Judge, Satna in Special Case No. 52/1995 convicting them under section 3 (2) (d) read with section 7 (1) (a) (i) of Essential Commodities Act and sentencing them to rigorous imprisonment for 3 months with fine of Rs.1,000/- on each count, respectively. In default of payment of fine further rigorous imprisonment for 3 months. 2. In short, the prosecution case is that station officer of police station Kothi, Satna. on the information received from an informer. checked the Dhaba in control and possession of appellants situated at Chitrakoot road. On inspection before witnesses namely Raji (PW-l) and Santram (PW-2), he found appellants m possession 75 liters of kerosene in a drum and 80 liters of diesel in jerry can. This kerosene and diesel was stored by the appellants for the purpose of sale. Since storage and sale of kerosene was prohibited under the provisions of M.P. Kerosene Dealers Licensing Order, 1979, the stock of kerosene and diesel was seized. Appellants were arrested. First Information Report Ex. P/6 was recorded and the appellants were put up for trial before the learned Special Judge. 3. Trial Court framed the charge under section 3/7 of the Essential Commodities Act for contravention of clause 3 of M.P. Kerosene Dealers Licensing Order. Appellants pleaded false implication. No specific defence was put nor any defence evidence was tendered by them before the trial Court. 4. Trial Court after appreciating the evidence of Sub Inspector Umashankar Singh Baghel (PW -3) and after perusal of record, held the appellants guilty and convicted and sentenced them as aforementioned. 5. Learned counsel for the appellants submitted that the evidence of Sub Inspector Umashankar Singh Baghel (PW-3) was not reliable. Independent witnesses namely Raji (PW-1) and San tram (PW-2) did not support the prosecution case. In the alternative, learned counsel for the appellants submitted that the incident had occurred in the year 1995 since then about 16 years have elapsed and the appellants, who have now grown old and settled in their lives. deserve leniency in the matter of sentence awarded to them. 6. Learned Panel Lawyer for the State on the other hand, Justified the impugned judgment of conviction and also sentence awarded to the appellants. 7. deserve leniency in the matter of sentence awarded to them. 6. Learned Panel Lawyer for the State on the other hand, Justified the impugned judgment of conviction and also sentence awarded to the appellants. 7. It is true that Raji (PW-1) and Santram (PW-2), before whom Sub Inspector Umashankar (PW-2) inspected the Dhaba and seized kerosene and diesel. did not support the prosecution version. They were declared hostile. Though they were confronted with their police statements Ex. P/2 and Ex. P/3, but they denied of having made the statements as mentioned in the aforesaid police statements. 8. Now the question before this Court is whether the evidence of Sub Insepctor Umashankar Singh Baghel (PW -3) is trustworthy and reliable. 9. Umashankar Singh Baghel (PW-3) categorically stated that on 15.5.1995 when he was posted as station officer of police station, Kothi, he received information from an informer that proprietors of Dhaba situated near the petrol pump on Chitrakoot road were storing kerosene and diesel in large quantity for' the purpose of sale. They were selling the aforesaid commodities at higher price. When he went at the Dhaba, appellants were present there. Santram Tiwari and Raji were also present there for the purpose of purchasing diesel. In front of them he seized 75 liters of kerosene kept in a drum and 80 liters of diesel kept in jerry can. He also found a small pipe used for taking out kerosene and diesel from the drum and also a measurement mug of 5 litres. He drew seizure memo Ex. P/1 Seizure memo was signed by the appellants as well as by the witnesses, Santram (PW-2) admitted his signatures on the seizure memo, however, he stated that he signed Ex. P/0 at this police station. On demand of licence appellants could not produce the licence. They were arrested vide seizure memo Ex. P/5. He recorded first information report Ex. P/6 and drew spot map Ex. P/7. Though this witness was cross-examined at length, but nothing material could be elicited out to discredit his testimony. Merely by the fact that he could not state about the ownership of the premises on which the Dhaba was constructed. it cannot be held that he made false recovery and seizure of the commodities. Merely because of this witness being a police officer, in absence of any allegation of animus against the appellants, his evidence cannot be discarded. Merely by the fact that he could not state about the ownership of the premises on which the Dhaba was constructed. it cannot be held that he made false recovery and seizure of the commodities. Merely because of this witness being a police officer, in absence of any allegation of animus against the appellants, his evidence cannot be discarded. After perusal of the evidence of Pw-3, I am of the opinion that his evidence is reliable and trustworthy. In my opinion. trial Court committed no error in relying on the evidnce of Umashakkar (PW -3). 10. In M.P. Kerosene Dealers Licensing Order, 1979, 'dealer' has been defined under section 2 (a) as follows: . (a) "Dealer" means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether is wholesaler, semi-wholesaler or retailer and whether in conjunction with any other business or not, and includes his representative or agent but does not include an Oil Company specified in the Schedule appended to this Order, Storage Depot or Installation wherefrom no sales are made to general public; Section 3 (1) Provides Licensing of Dealers. It is reproduced as under: 3. Licensing of Dealers. -(1) No person shall carryon business as a dealer in Kerosene except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing Authority. 11. A bare perusal of the above provisions clearly indicates that the appellants, stored kerosene for the purpose of sale without valid licence, as such they made themselves liable to be punished under section 7 of the Essential commodities Act, 1955. Trial Court committed no error in holding the appellants guilty under section 3/7 of the Essential Commodities Act, 1955. Accordingly, finding of conviction of the appellants is hereby affirmed. 12. As far as question of sentence is concerned, learned counsel for the appellants submitted that since the incident which took place in the year 1995. about 16 years have elapsed and the appellants who are agriculturists have settled in their lives. The sentence awarded to them by the Trial Court reduced. Per contra, learned Panel Lawyer submitted that under the provisions of section 7 (1) (ii) of Essential Commodities Act, 1955, mini mum sentence of three months have been provided, therefore, the sentence of appellants cannot be further reduced. 13. The sentence awarded to them by the Trial Court reduced. Per contra, learned Panel Lawyer submitted that under the provisions of section 7 (1) (ii) of Essential Commodities Act, 1955, mini mum sentence of three months have been provided, therefore, the sentence of appellants cannot be further reduced. 13. Learned counsel for the apellants drew my attention to the proviso attached to section 7 (1) (ii) which provides that "Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months". Learned counsel emphasizing the meaning of "special reasons" cited the law laid down by the apex Court in Bishno Deo Shaw v. State of West Bengal- AIR 1979 SC 964 where in the cotext of section 354 (3) and 360/361 CrPC Apex Court explained that the "special reasons" contemplated by section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. 14. It has been submitted by the learned counsel and also by the appellants, who are present today before this Court, that they are petty agriculturists. They were not the owners of Dhaba but for sometime they had taken it on hire. Now both of them are cultivating the lands and looking after their families. No other criminal case is pending against them. Though case of seizure of Ganja was registered against them but they have been acquitted in that case. 15. On due consideration of the facts and circumstances of the case, the fact that 16 years have elapsed after the occurrance, poor condition of appellants and the fact that there is nothing on record to indicate that they are the persons beyond reformation, I am of the opinion that sentence of imprisonment awarded by the trial Court deserves to be reduced. Accordingly, the sentence of three months rigorous imprisonment as imposed by the trial Court on appellants is reduced to the period of fifteen days. The sentence of fine is affirmed. The appellants are directed to surrender before the trial Court for undergoing the sentence on or before 15th November, 2011. 16. Appeal partly allowed. Accordingly, the sentence of three months rigorous imprisonment as imposed by the trial Court on appellants is reduced to the period of fifteen days. The sentence of fine is affirmed. The appellants are directed to surrender before the trial Court for undergoing the sentence on or before 15th November, 2011. 16. Appeal partly allowed. Sharad Verma and Hemant Sen for appellants; Pramod Kumar Chaurasiya, Panel Lawyer for respondent.