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2013 DIGILAW 70 (PAT)

Ramesh Panjiyar v. State Of Bihar

2013-01-16

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT 1. Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 06.01.2001 passed by Sri Devi Dayal Prasad, Special Judge, Darbhanga in Trial No. 68 of 2001/G.R. No. 2509 of 1996 by which and whereunder he convicted the appellant for the offence under Section 7 of Essential Commodities Act and sentenced him to undergo rigorous imprisonment for six months for the above stated offence. 3. The prosecution case, in brief, is that Block Development Officer, Ghanshyampur gave a written report to officer in charge of Ghanshyampur Police Station on 05.12.1996 stating therein that on the same day, the business premises of the appellant was raided and two bags of Hara Bahar fertilizer and four bags of Sufla fertilizer were found in his business premises. The appellant fled away from his business premises. The aforesaid seized bags were handed over to Bindeshwar Nayak (P.W.1.) on Jimanama. No board was displayed showing the stock and price list and no document showing licence, stock register, cash memo was found in the aforesaid shop and appellant was found selling fertilizer without having any valid license and, accordingly, he committed the offence punishable under Section 7 of Essential Commodities Act. 4. On the basis of aforesaid written report, Ghanshyampur P.S. Case No. 148 of 1996 for the offence punishable under Section 7 of Essential Commodities Act was registered against the appellant. The matter was investigated and after investigation, police submitted charge sheet. 5. The cognizance of the offence was taken and accordingly, the appellant was put on trial. The substance of accusation was explained to him and prosecution examined, altogether, four witnesses. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he stated that he had kept the seized fertilizer in his house for agricultural purposes and the aforesaid seized fertilizer had been purchased by him. 6. The learned trial court having scrutinized the evidences available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 7. Learned counsel appearing for the appellant submits that P.W.1., Bindeshwar Nayak and P.W.2., Raghunath Prasad admitted in their depositions that appellant had no shop and the alleged recovery was made from his house. 7. Learned counsel appearing for the appellant submits that P.W.1., Bindeshwar Nayak and P.W.2., Raghunath Prasad admitted in their depositions that appellant had no shop and the alleged recovery was made from his house. He further submits that although, P.W.1., Bindeshwar Nayak has been declared hostile by the prosecution but only on this ground his entire deposition cannot be discarded. He further submits that Fertilizer Control Order, 1985 was not applicable against the appellant as he had purchased the aforesaid seized fertilizer for agricultural purposes and he was not selling the aforesaid seized fertilizer but learned trial court without considering the aforesaid facts passed the impugned judgment of conviction and sentenced the appellant. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W.3. has proved the factum of recovery from the business premises of the appellant and, therefore, there is no ground for this Court to interfere into the impugned judgment of conviction and sentence order. 9. On perusal of record, it is evident that altogether four prosecution witnesses have been examined in this case. P.W.1., Bindeshwar Nayak has been declared hostile though he has admitted that the alleged recovery was made from the house of the appellant. P.W.2., Raghunath Prasad has also admitted this fact that on the alleged date of occurrence P.W.3. and other officials had gone to the house of the appellant and the alleged recovery was made from the house of the appellant. This witness has proved the signature of seizure list witnesses. P.W.3., Bodh Narain Choudhary stated that the alleged recovery was made from the business premises of the appellant but at para 5 of his cross-examination he admitted that all the seized bags were packed and he did not seize weigh and measurement from the place of occurrence. 10. It would appear from perusal of the entire materials available on the record that prosecution could not succeed to prove this fact that the alleged recovery had been made from the business premises of the appellant and appellant had kept the seized fertilizer for selling rather it appears that the alleged recovery was made from the house of the appellant. Therefore, I am of the opinion that the learned trial court has committed an error in convicting and sentencing the appellant and the appellant is liable to get the benefit of doubt. 11. Therefore, I am of the opinion that the learned trial court has committed an error in convicting and sentencing the appellant and the appellant is liable to get the benefit of doubt. 11. On the basis of aforesaid discussions, this criminal appeal is allowed and, accordingly, impugned judgment of conviction and sentence order dated 06.01.2001 is, hereby, set aside. The appellant is acquitted. He is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.