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2013 DIGILAW 1204 (PNJ)

S. S. Bhalotia v. State of Haryana

2013-09-06

INDERJIT SINGH

body2013
Judgment Inderjit Singh, J. This judgment shall dispose of two connected cases i.e. CRA No.S-1146-SB of 2001 arising out of judgment of conviction dated 25.09.2001 and order of sentence dated 27.09.2001 and CRA No.S-1147-SB of 2001 arising out of the judgment of conviction dated 25.09.2001 and order of sentence dated 27.09.2001, both passed by learned Special Judge, Panipat, whereby, the accused-appellant S.S. Bhalotia, in both the appeals, was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- under Section 7 of the Essential Commodities Act, 1955 and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months in both the above-said cases separately. The facts, being almost similar in nature in both the above-stated case, are taken from CRA No.S-1146-SB of 2001. The brief facts of the prosecution case are that on 17.02.1994, the then Quality Control Inspector (Fertilizer Inspector) Hari Singh filed a complaint alleging that he was authorized to file a complaint with respect to violation of the provisions of the Fertilizer (Control) Order, 1985 (hereinafter referred to as the 'Order'). It was stated in the complaint that on 25.09.1993 complainant inspected the premises of M/s Ashish Enterprises (whereas in CRA No.S-1147-SB-2001, the complainant inspected the premises of M/s Chaudhary Khand Bhandar on 25.11.1993) and drew a sample of Single Super Phosphate (Anapurana Brand) 16% P2 05 water soluble given on the bags of 50 kgs. each and that there were only 42 bags (7 bags in connected appeal) in the stock at the time of sampling and said fertilizer was manufactured by M/s Jay Shree Chemicals and Fertilizer, New Delhi as written on the bags and they were found stitched in original stitching. This sample was drawn as per the procedure laid down in Schedule-II Part-A of the Order and form 'J' was inserted with sample in the cloth bags in the presence of accused dealer. Three samples were prepared. One was given to the dealer along with copy of form 'J'. The remaining two samples were handed over in the office of Deputy Director of Agriculture, Panipat, for further onward submission to the State Quality Control Laboratory (Fertilizer), Karnal. Three samples were prepared. One was given to the dealer along with copy of form 'J'. The remaining two samples were handed over in the office of Deputy Director of Agriculture, Panipat, for further onward submission to the State Quality Control Laboratory (Fertilizer), Karnal. Its one part was sent to the said Laboratory, for analysis by Deputy Director of Agriculture, Panipat and remaining part of the sample remained with Deputy Director, who kept it in safe custody for producing the same in the Court. As per report of Analytical Chemist Quality Control Laboratory, Karnal, the sample was found nonstandard. Show cause notice was issued and both the accused as dealer and manufacturer by manufacturing and selling non-standard fertilizer committed violation of clause 19(1)(a) of the Fertilizer (Control) Order, 1985, punishable under Section 7 of the Essential Commodities Act, 1955. The accused were summoned. Copies of documents were supplied to them. Accused were charge-sheeted under Section 19(1)(a) of the Fertilizer (Control) Order, 1985, to which they pleaded not guilty and claimed trial. The complainant examined PW-1 Kapoor Singh Kadiyan, Analytical Chemist who mainly deposed regarding testing of the sample. Hari Singh, complainant examined himself as PW-2 and deposed the same facts as stated in the complaint. PW-3 Ram Mehar Mudgil, Steno to Deputy Director, who mainly deposed that samples were handed over to him and same were deposited in the Laboratory by him. At the close of prosecution evidence, the accused-appellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. In defence, accused Vinay Kumar examined DW-1 B.L. Grover, Ram Mehar as DW-2 and Abhekar Rai, Assistant as DW-3. DW-1 B.L. Grover, proved the bill Ex.D1, so issued by their firm and deposed that he was distributor of M/s Jay Shree Chemicals accused No.3 and 4. On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the learned Special Judge, Panipat in both the cases separately. At the time of arguments, learned counsel for the appellant in both the appeals argued that there is no cogent evidence produced by the complainant on the record to connect appellant S.S. Bhalotia or accused No.3 M/s Jay Shree Chemicals with the fertilizers which were found in the shop of dealer/sub-dealer. At the time of arguments, learned counsel for the appellant in both the appeals argued that there is no cogent evidence produced by the complainant on the record to connect appellant S.S. Bhalotia or accused No.3 M/s Jay Shree Chemicals with the fertilizers which were found in the shop of dealer/sub-dealer. Learned counsel for the appellant further argued that stock was found in the shop of dealers from where the sample was taken. No notice has been given to the appellant. There is nothing on the record to show that these dealers have purchased the fertilizer manufactured by M/s Jay Shree Chemicals directly from the manufacturer. There is also no cogent evidence on the record to show that the distributor M/s Mohan Enterprises purchased the fertilizer from M/s Jay Shree Chemicals. He further contended that there is no such bill produced on the record. The only bill Ex.D1, which is produced in the appeal CRA No.S-1146-SB of 2001 was regarding purchase by the dealer from M/s Mohan Enterprises distributor. This bill also nowhere shows batch number, year of manufacturing or licence number of the manufacturer etc. So, these fertilizer bags in the absence of any cogent evidence on record, cannot be connected with the appellant. Learned counsel for the appellant further contended that in the Order, a specific form 'M' has been given, according to which a bill has to be issued. In this form, the name of the manufacturer, packing size, batch number, date of manufacturing, expiry date etc. is to be given and only the purpose of the bill on this form 'M' is to show that this fertilizer is manufactured by M/s Jay Shree Chemicals or some others. The complainant in cross-examination has stated that on the bags M/s Jay Shree Chemicals manufacturer has been written. Only from this name written on the bag, it cannot be held that these are manufactured by accused No.3 M/s Jay Shree Chemicals. Only appellant S.S. Bhalotia was working as Works Manager. Learned counsel for the appellant, therefore, argued that both the appeals having merits should be allowed. On the other hand, learned Addl. Advocate General, Haryana for the respondent-State argued that there being no merit, both the appeals should be dismissed. I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned Addl. Advocate General, Haryana for the respondent-State. On the other hand, learned Addl. Advocate General, Haryana for the respondent-State argued that there being no merit, both the appeals should be dismissed. I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned Addl. Advocate General, Haryana for the respondent-State. From the evidence on record, I find merit in the arguments of learned counsel for the appellant. Firstly, in the present case, distributors have not been made as accused in the complaint. Secondly, dealer/sub-dealer have already been acquitted by the learned Special Judge, Panipat. There is no bill on the record to show the sale of these fertilizer bags by M/s Jay Shree Chemicals and Fertilizers to the distributor or to the dealer/sub-dealer. The mere fact that on the bags M/s Jay Shree Chemicals and Fertilizers was written, it cannot connect appellant with the offence. There is nothing in the statement of the complainant that any batch number, date of manufacturing or other particulars have been written on that bags. As per bill Ex.D1, this has been issued by M/s Mohan Enterprises distributor in favour of dealer and even in this bill Ex.D1, there is nowhere mentioning of batch number or date of manufacturing or regarding the fact who is the manufacturer. There is also no mention in the bill nor any other evidence has been produced to show that distributor has purchased these fertilizer bags from the accused M/s Jay Shree Chemicals and Fertilizers. Therefore, the bags from which the sample was taken, cannot be connected with the manufacturer. Link evidence is missing to connect these fertilizer bags with the manufacturer. Therefore, complainant had failed to prove the same by producing cogent evidence beyond reasonable doubt. Therefore, from the above, I find that a reasonable doubt exists in the complainant's version and benefit of doubt is to go to the appellant. Hence, giving benefit of doubt, the appellant is acquitted of the charges framed against him. Both the impugned judgments of conviction and orders of sentence are set aside. Resultantly, both the appeals i.e. CRA No.S-1146-SB of 2001 and CRA No.S-1147-SB of 2001 stand allowed. Since, the appellant is on bail, his bail bonds stand discharged.