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2012 DIGILAW 619 (MP)

Ramsahay v. State of M. P.

2012-06-27

TARUN KUMAR KAUSHAL

body2012
JUDGMENT : Thisappeal has been preferred against the judgment dated 03/01/1996 passed bySpecial Judge, Chhatarpur in Special Case No. 9/94(EC Act), convicting the appellant under section 3(2 )( c)read with Section 7(1)(a) (ii) of the Essential Commodities Act, 1955 (in shortAct of 1955) for black marketing of kerosene oil and sentenced to 6 months R.I.and fine of Rs.2000/-. 2.Facts of the case, in short, are that 16/06/1994 at about 1.30 p.m , (PW-4) made a complaint to Mahesh Kumar Sharma, FoodInspector (PW-2) that appellant has sold 5.500 litres of Kerosene to him in Rs.30/-. Appellant was a private dealer for free saledistribution of kerosene. In presence of Govind (PW-1) Panchnama Ex.P-1 was prepared by FoodInspector (PW-2). Signature of appellant was also obtained on Ex.P-1.Statements of Govind (PW-1) and Malla (PW-4) were recorded to that effect by PW-2. In fact, prescribed rate ofkerosene was Rs.2.75 paisa per litre and appellanthas charged excess amount from Malla (PW-4), therebyhe was found to be guilty of contravention of provision of Clause 4 ,5 and 6(3) of Kerosene (Market Price Determination) Order1970. Memorandum Ex.P-5 was also prepared by Food Inspector (PW-2) addressed toCollector Chhatarpur . On receiving report dated 29/07/1994 at Police Station- Naogoan , a case at Crime No. 174/1994 under section 3/7 ofAct of 1955 was registered against the appellant. 3.After completing investigation, police Naogoan submitted a charge sheet in the court of Special Judge. Having followed theprocedure of summary trial, substance of alleged offence has been prepared andplea of the accused was recorded. Appellant pleaded not guilty and entered intotrial. Statements of Govind (PW-1), Mahesh KumarSharma, Food Inspector (PW-2), Dharmraj Singh Raghuvanshi , ASI (PW-3), Malla (PW-4), and K.L. Berle , Assistant Food Inspector(PW-5) were recorded. 4.After appreciating aforesaid evidence, trial Court has convicted the appellantas above. 5.This appeal has been preferred by the appellant on the ground that appreciationof evidence is not proper. Evidence of Malla (PW-4)is suffering from material contradictions and omissions. Conviction has beenbased on insufficient discrepant evidence. Conviction is bad in law. Sentenceis harsh. On the other hand , learned Panel Lawyersupported the finding of conviction and sentence both. 6.On careful perusal of evidence of Malla (PW-4) it isrevealed that he purchased 5 litres of Kerosene oilfrom the appellant. Appellant took Rs.30/- from him. Prescribed rate ofkerosene at that time was Rs.3/- per litre . Conviction is bad in law. Sentenceis harsh. On the other hand , learned Panel Lawyersupported the finding of conviction and sentence both. 6.On careful perusal of evidence of Malla (PW-4) it isrevealed that he purchased 5 litres of Kerosene oilfrom the appellant. Appellant took Rs.30/- from him. Prescribed rate ofkerosene at that time was Rs.3/- per litre . Incross-examination, he has admitted that he did not remember how much payment hehas made to the appellant. In re-examination he has admitted that whileappellant was caught, he refunded Rs.15/- to him. He further stated that whileappellant took Rs.30/- from him he assured to give such amount back while hewill receive some loose change. It is pertinent to note that statement of Malla (PW-4) was recorded in one go only. He has given differentversion regarding the amount of money taken by appellant in Chief examination,cross-examination and re-examination. 7. Govind (PW-1) punch witness, did not support the prosecution and has been declared hostile. He has signed onthe papers under the influence of PW-2 in the impression of renewal of thedealership. Though K.L. Berle , Assistant FoodInspector (PW-5) proved price list of the Kerosene Ex.P-11 showing the rate tobe Rs.2.70 paisa per litre , but in Ex.P-1 Panchnama PW-2 did not mention the prescribed rate and alsodid not mention the fact that how much excess amount has been charged by theappellant. 8.In view of the fact that independent witnesses Govind (PW-1) did not support the prosecution and Malla (PW-4) has complainant is giving discrepant version in his statement recordedin the trial court in one go, evidence of PW-2 is required to be appreciatedvery carefully. It is true that there is no rule that evidence of Inspectorshould be corroborated but as a matter of precaution great careful appreciationof evidence is required. 9.Signature of the appellant on Ex.P-1 Panchnama isobtained in top corner only and there is no thumb impression of Malla (PW- 4) on it. Amount charged by the appellant forsale of kerosene has not been recovered from the appellant. 10.On perusal of evidence and particularly Panchnama Ex.P-1 it is not prima facie established that how much excess amount has beenreceived by the appellant and no record of sale of kerosene on the spot andcash received by him was recovered. Merely on the basis of oral complaint madeby Malla (PW-4) case was prepared against theappellant. 10.On perusal of evidence and particularly Panchnama Ex.P-1 it is not prima facie established that how much excess amount has beenreceived by the appellant and no record of sale of kerosene on the spot andcash received by him was recovered. Merely on the basis of oral complaint madeby Malla (PW-4) case was prepared against theappellant. PW-4 did not support the prosecution with full force in the trialCourt. In such situation, on the basis of evidence of Food Inspector (PW-4)alone contravention of Control Order cannot be said to be proved beyond doubt. 11.PW-4 is giving discrepant version in his cross-examination, re-examinationregarding excess amount taken by the appellant. Panch witness PW-1 did not support the prosecution and was declared hostile. Soletestimony of Food Inspector (PW-2) in this situation is not sufficient toestablish charge under section 3/7 of the Act of 1955. Conviction is notmaintainable and is hereby set aside. Appealis allowed. Appellant is acquitted.