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2013 DIGILAW 159 (CHH)

Chandan Das Bangali v. State of Chhattisgarh

2013-06-11

RADHE SHYAM SHARMA

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JUDGMENT This appeal has been directed against the judgment dated 19-7-2004 passed by Special Judge under the Essential Commodities Act (henceforth the Act), Surguja in Special Case No.1/2000. By the impugned judgment, the appellants/ accused persons Chandan Das Bangali and Shambhu Sarkar have been convicted under Section 3 read with Section 7 of the Act and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 25,000/- each, in default of payment of fine, to further undergo simple imprisonment for 3 months. 2. The case of the prosecution, in brief, is as under :- On the 10-2-1998 at about 3 p.m., R. R. Poya (PW-6), the Food Inspector, Surajpur along with Assistant Food Officer J. S. Tirki and Food Inspector S. P. Shrivastava, K. S. Nag and J. R. Thakur inspected the hotel of the appellants. During inspection, appellant Shambhu Sarkar was present there. Appellant Chandan Das Bangali was owner of the hotel and he was not present in the hotel during the inspection. In absence of appellant Chandan Das Bangali, appellant Shambhu Sarkar was conducting the business of hotel of appellant Chandan Das Bangali. During the search, 200 liters blue kerosene was found in a drum and in another drum 50 liters of blue kerosene was found, i.e. total 250 liters of blue kerosene was found stored by the appellant without license in violation of the clause 5 of the Kerosene Ke Upyog Par Nirbandhan Avam Adhiktam Mulya Nivartan Aadesh, 1993. During the investigation, panchnama (Ex. P/3) was prepared and kerosene was seized vide Ex. P/4 from appellant Shambhu Sarkar and detailed report Ex. P/19 was prepared by R. R. Poya (PW-6) and he submitted the said report to the Collector. After investigation, charge sheet was filed in the Court of Special Judge under the Act, Surguja (Ambikapur), who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Shri Shakri Raj Sinha, learned counsel for the appellants argued that the Special Judge erred in holding the appellants guilty for the offence under Section 7 of the Act. He further argued that the kerosene was not seized from the premises of the appellants. Food Inspector R. R. Poya (PW-6) specifically admitted that the kerosene was seized from premises which is adjacent to the hotel of the appellants. Therefore, exclusive possession of the appellants was not proved. He further argued that the kerosene was not seized from the premises of the appellants. Food Inspector R. R. Poya (PW-6) specifically admitted that the kerosene was seized from premises which is adjacent to the hotel of the appellants. Therefore, exclusive possession of the appellants was not proved. Evidence of R. R. Poya (PW-6) is not corroborated by the evidence of independent witnesses. The prosecution has not been able to make out any offence against the appellants, therefore, the appellants deserve to be acquitted of the charges framed against them. 4. On the other hand, Shri A. K. Singh, learned Panel Lawyer appearing for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellants to do not call for any interference by this Court. 5. I have heard learned counsel for the parties at length and have also persused the record of Special Case No.1/2000 with utmost circumspection. 6. R. R. Poya (PW-6) deposed that on 10-2-1998, he was posted as Food Inspector at Surajpur. On that date, he inspected the hotel of appellant Chandan Das Bangali along with Asstt. Food Officer J. S. Tirki, Food Indpector S. P. Shrivastava, K. S. Nag and J. R. Thakur. During the inspection, appellant No.1 Chandan Das Bangali, owner of the hotel was not present in the hotel. Appellant No.2, who is brother-in-law of appellant No.1, was present in the hotel. During the inspection, he found that a drum of blue kerosene was kept in a room which was adjacent to the hotel of the appellants. The drum was filled with blue kerosene. In other container, 50 liters of blue kerosene was also found and 2 empty jaricane of 30 liters and 35 liters were found in the said room. He further deposed that blue kerosene was only used for preparation of food and it can- not be used for commercial purposes and the appellants illegally stored 250 liters blue kerosene for commercial purposes, which was prohibited. The appellants violated Clause III of the Kerosene Upyog Par Nirbandhan Avam Adhiktam Mulya Nivartan Aadesh, 1993. 7. Shivcharan (PW-2), A. B. Yadav (PW-3) and Suklal (PW-5) did not support the case of the prosecution. Other Food Officers i.e. J. S. Tirki, Food Inspector S. P. Shrivastava, K. S. Nag and J. S. Thakur were not examined by the prosecution. 8. 7. Shivcharan (PW-2), A. B. Yadav (PW-3) and Suklal (PW-5) did not support the case of the prosecution. Other Food Officers i.e. J. S. Tirki, Food Inspector S. P. Shrivastava, K. S. Nag and J. S. Thakur were not examined by the prosecution. 8. Now, I shall examine whether the evidence of Food Inspector R. R. Poya (PW-6), is reliable and can be based for conviction. 9. In Ex. P/4, it is mentioned that the kerosene was seized from Keshav Tha Line Hotel, Madanpur, but in the cross-examination, R. R. Poya (PW-6) deposed that it is true that the kerosene was recovered from the premises which was adjacent to the hotel. It is also true that 250 liters kerosene was recovered from the room which was situated backside of the said premises. He further deposed that he did not enquire regarding ownership of the said premises from the revenue authorities. He further deposed that he did not enquire regarding the ownership of the premises from persons who were present during the inspection proceedings also. It appears that the premises from which 250 liters kerosene was recovered was not in possession of the appellants. The prosecution has not been able to prove that the premises where the kerosene was seized was in possession of the appellants or the appellants were owner of the said premises. The kerosene was not seized from the hotel but from the backside room of the house which was situated adjacent to the hotel of the appellants. 10. In the instant case, the evidence of the Food Inspector R. R. Poya (PW-6), is not reliable and cannot be based for conviction without corroboration. The prosecution has failed to prove that the appellants stored 250 liters of blue kerosene in their hotel in violation of Clause III of the Kerosene Upyog Par Nirbandhan Avam Adhiktam Mulya Nivartan Aadesh, 1993. 11. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellants under Section 3/7 of the Essential Commodities Act are set aside. The appellants are acquitted of the charges framed against them. Presently, they are on bail, their bail bonds are continued for a period of 6 months. Appeal allowed.