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2012 DIGILAW 722 (KAR)

Chako v. N. R. Police, By State Public Prosecutor

2012-08-28

A.N.VENUGOPALA GOWDA

body2012
Judgment 1. Challenge in this Criminal Revision Petition is to a Judgment and order dated 27.07.2010 passed by the learned Presiding Officer of Fast Track Court, Chickmagalur in Crl.A.No.60/2008, whereby, a Judgment and order dated 22.05.2008 passed In C.C.No.12/2008 by the JMFC, N.R. Pura, convicting the accused for the offences punishable under Ss.3(2) and 7(1)(a)(ii) of the Essential Commodities Act 1955 (for short 'Act') was confirmed. The petitioner has been sentenced to undergo simple imprisonment for 3 months and pay fine of Rs.500/-with default clause. 2. The prosecution case against the petitioner-accused was initiated on the basis of a report submitted by Hiremath/PW-4, alleging inter alia that, on 8.8.2007, at about 7.00 p.m., on credible information, when he conducted raid on the house of the accused, he was found in possession of about 51 liters of kerosene in 4 plastic cans, in his house situated at B.H. Kaimara, for sale, without any valid pass, permit or licence. Thereafter, PW-4 returned to the police Station, registered a case against the accused, under the provisions of the Act. Further investigation was taken over by the PSI/PW-6, who, upon completion of investigation filed charge sheet for the offences, noticed supra. 3. Summons having been served, the petitioner appeared in the Trial Court and vide order dated 7.2.2008, learned Magistrate put the accusation and the accused pleaded not guilty and therefore, trial was held. 9 witnesses were examined, 7 documents and 6 material objects were marked. After closure of prosecution case, accused was examined. Statement of accused under S.313 Cr. P.C, was recorded on 20.5.2008 and it is a case of mere denial. No defence evidence was adduced. Considering the rival contentions and the record of the case, the learned trial Judge found the petitioner guilty. Petitioner was convicted and sentenced, as noted earlier. An appeal filed there against did not bring any relief. 4. Sri Shivakumar Deshmukh, learned advocate, firstly, contended that, the evidence of prosecution witnesses is inconsistent and that the allegation against the petitioner has not been proved beyond all reasonable doubts. Secondly, the Courts below have committed illegality in holding that the burden is on the accused to rebut the evidence against him. 4. Sri Shivakumar Deshmukh, learned advocate, firstly, contended that, the evidence of prosecution witnesses is inconsistent and that the allegation against the petitioner has not been proved beyond all reasonable doubts. Secondly, the Courts below have committed illegality in holding that the burden is on the accused to rebut the evidence against him. Thirdly, the sentence imposed is irrational, in view of the decision in the case of Harivallabha and another Versus State of M.P., (2005) 10 SCC 330 and that the accused ought to have been dealt with under provisions of S.360 Cr. P.C. 5. Sri Vijayakumar Majage, learned HCGP, on the other hand, supported the Judgments and orders passed by the Courts below. 6. Perused the record. In view of the rival contentions, the point for consideration is: 7. PWs.1 and 2 are the witnesses to the mahazar/Ex.P1. Their evidence shows, the seizure of MOs.1 to 4, taking of samples of the oil there from and the accused not possessing any valid pass or permit to possess the seized oil. PW-3 has said that, he is running a shop at B.H. Kaimara and he came to know that the accused being in possession of kerosene oil illegally. PW-5 is the owner of the premises occupied by the petitioner. His evidence shows that the petitioner was in possession of seized kerosene oil, without any permit or licence. 8. PW-4/PSI has said that, on 8.8.2007, at about 7.00 p.m., he took panchas and other staff to the house of the accused and asked the accused to produce the licence or permit regarding the possession of the kerosene and the accused did not produce any licence and thereafter, he seized Mos.1 to 4 under a mahazar/Ex.P1, in the presence of the panchas and returned to the Police Station and registered a case against the accused. He has identified the accused. Nothing material has been elicited in the cross-examination to disbelieve the testimony of PW-4. Evidence of PW-9 corroborates the evidence of PWs.1, 2, 4 and 7. 9. PW-6 has deposed regarding production of the accused before the Court, recording of statements of witnesses, sending sample kerosene seized in the case for FSL examination, receiving of the order of the Deputy Commissioner and a Panchayat Extract of the house of the accused and thereafter handing over the seized kerosene to the Food and Civil Supplies Department. He has identified Mos.1 to 6. He has identified Mos.1 to 6. 10. PW-7 has said that, he accompanied PW-4 and another pancha to the spot and found that the accused was in possession of kerosene oil and was doing sale, without any permit or licence and the same was seized. He has identified the accused. 11. PW-8 / Mallesh is the Scientific Officer, who has given the report/Ex.P7, stating that the seized samples contains kerosene. 12. S.14 of the Act being material reads as follows: Whether the conviction and sentence imposed on the petitioner is justified? "Burden of proof in certain cases -Where a person is prosecuted for contravening any order made under Sec. 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit licence or other document shall be on him". 13. Seizure of kerosene as per MOs.1 to 4 from the house of the accused has been established. Recovery of kerosene oil and the quantity thereof, in view of the evidence noticed supra, cannot be doubted. Burden of proof with regard to lawful possession of seized kerosene was on the accused. He has not produced any permit, licence or other document with regard to his lawful authority to possess the seized kerosene. 14. In the circumstances, the Trial Court and the Appellate Court have rightly decided that there is contravention of the provisions of the Act by the accused. There is detailed consideration of the case by the Courts below. Hence, the concurrent findings, based on the evidence, noticed supra, cannot be found fault with. The conviction of the petitioner is justified. 15. In the case of Harivallabha (supra), the Apex Court has held that, in the facts and circumstances of the case, the appellant should have been dealt with under the provisions of S.360 Cr. P.C. The case has been decided with reference to the facts and circumstances appearing therein and hence the decision is of no assistance to the petitioner. 16. The petitioner was dealing with an essential commodity -kerosene. Parliament has provided for minimum sentence and the same should ordinarily be imposed. No exceptional case is made out to impose sentence of less than the minimum prescribed in the Act. 17. 16. The petitioner was dealing with an essential commodity -kerosene. Parliament has provided for minimum sentence and the same should ordinarily be imposed. No exceptional case is made out to impose sentence of less than the minimum prescribed in the Act. 17. In the case of Sunil Kumar Versus State of Haryana, (2012) 5 SCC 398 , the Apex Court has held as follows: "15. Even otherwise, the issue as to whether the benefit of the 1958 Act or Section 360 Cr. P.C can be granted to the petitioner is no more res integra. In Ishar Das versus State of Punjab, (1973) 2 SCC 65 , this Court dealt with the case under the provisions of the Prevention of Food Adulteration Act observing that the adulteration of food is a menace to public health and the statute had been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. The legislature thought it fit to prescribe the minimum sentence of imprisonment. Therefore, the court should not lightly resort to the provisions of the 1958 Act in case of an accused found guilty of offences under the Prevention of Food Adulteration Act". (Italicized by me for emphasis) Since petitioner has been found guilty for the offence under the Essential Commodities Act, he cannot claim the benefit of S.4 of the Probation of Offenders Act, 1958. For the reasons aforementioned, the petition is dismissed. The bail bonds are cancelled. The petitioner shall surrender before the learned Magistrate for serving the sentence.