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2014 DIGILAW 3776 (ALL)

Shyam Behari Singh v. State of U. P.

2014-12-18

ANIL KUMAR SHARMA

body2014
JUDGMENT Anil Kumar Sharma, J. 1. Challenge in this appeal is to the judgment and order dated 31.8.1987 passed by Sri Sushil Kumar Pandey the then Special Judge, Ballia in Criminal Case No. 43 of 1985 [State v. Shyam Behari Singh arising out of Crime No. 151/85 P.S. Sukhpura District Ballia whereby the appellant had been found guilty for the offence punishable u/s. 3/7 E.C. Act and had been sentenced to undergo one year's R.I. 2. Facts germane to the appeal are that on 3.5.1985 at about 7.45 a.m. Sri Mohd. Hasnain along with Supply Inspectors R.D. Singh and S.P. Yadav conducted raid on the kerosene fair price shop of accused Shyam Behari Singh situated in village Bramhain P.S. Sukhpura and found that the shop was in the residential house of the accused and there was no stock board, rate list or any sign-board. In the month of April, 1985 out of 800 litres of kerosene taken by the accused 400 litres was not brought at the shop and the accused did not cooperate in the enquiry and made his escape good from the spot and thereby he committed breach of the provisions of U.P. Essential Commodities Display of Price & Stocks and Control of Supply & Distribution Order, 1977, and the terms of licence issued under U.P. Kerosene Control Order, 1962 which is punishable u/s. 3/7 Essential Commodities Act. Statement of Gauri Shanker S/o. Ramjit was recorded and thereafter written report of the incident duly signed by the DSO and the two Supply Inspectors was sent to S. O., Sukhpura, on the basis whereof case at crime No. 151/85 u/s. 3/7 E.C. Act was registered against the accused-appellant. The case was investigated by S. I.A.K. Mishra, who recorded the statements of witnesses, inspected the place of incident and prepared site plan. He had also seen the sale register of M/s. Gorakh Prasad & Sons, Railway Crossing, Ballia from where the accused-appellant had taken delivery of 400 litres of kerosene each on 26.4.1985 and 29.4.1985 for distribution and prepared memo. After completing the investigation charge-sheet was submitted and sanction for prosecution of the accused was accorded by the District Magistrate, Ballia on 2.9.1985. 3. The learned Special Judge conducted summary trial of the accused-appellant and on his denial of the contents of the FIR, the prosecution had examined DSO-Mohd. After completing the investigation charge-sheet was submitted and sanction for prosecution of the accused was accorded by the District Magistrate, Ballia on 2.9.1985. 3. The learned Special Judge conducted summary trial of the accused-appellant and on his denial of the contents of the FIR, the prosecution had examined DSO-Mohd. Hasnain PW-1, SI Ashok Kumar Mishra PW-2 and Vijay Krishan Agarwal PW-3. 4. The accused-appellant in his statement u/s. 313 Cr.P.C. has stated that in order to show good work, he had been falsely challaned. In defence he has examined Kedar Tewari as D.W.-1. He has also filed stock register, sale register, copy of challani ;report dated 24.3.1983, extract khatauni of his village for the year 1390 fasli as Ex. Kha-1 to Kha-4 respectively. 5. The learned trial Court after hearing the parties' counsel has convicted and sentenced the accused-appellant as indicated in para-1 of the judgment above. 6. I have heard arguments of learned counsel for the appellant and learned AGA for the State and also perused the original record of the trial Court carefully. 7. On perusal of the trial's Court record it transpires that the accused-appellant had been tried summarily by the learned Special Judge as provided in Section 12-AA(1)(f) of the Essential Commodities Act, which reads as under: "(f) all offences under this Act shall be tried in a summary way and the provisions of Secs. 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial. Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years." 8. Section 264 Cr.P.C. provides that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. Thus, the learned trial Court was not required to record statement of witnesses verbatim and write detailed judgment. 9. The raid in question has been conducted by the District Supply Officer Mohd. Hasnain PW-1 himself along with his two Supply Inspectors. It has been specifically noted in the FIR signed by all the above three, that the accused-appellant did not cooperate in the inspection and made his escape good. 9. The raid in question has been conducted by the District Supply Officer Mohd. Hasnain PW-1 himself along with his two Supply Inspectors. It has been specifically noted in the FIR signed by all the above three, that the accused-appellant did not cooperate in the inspection and made his escape good. The record of the case has been maintained as per provisions of Section 263 Cr.P.C. and precise allegations of the prosecution have been put to him, which reads as under: 10. Indisputably the accused-appellant was the licence-holder of fair price shop for sale of kerosene in village Birahman. He has not filed his licence, which contained the approved boundaries of his shop and that was the best document to rebut the charge of running the shop from his house. The investigating officer Ashok Kumar Mishra PW-2 has proved the site plan wherein the shop had been shop in the residential house of the accused-appellant. Thus, it is proved that the accused-appellant was running the shop from his residential house. 11. Learned counsel for the appellant has argued that the time of inspection of the shop had been shown as 7: 45 a.m. on 3.5.1985, which is not the opening time of the shop, as the working hours were from 10: 00 a.m. to 5: 00 p.m. This argument is devoid of any force. As stated earlier the accused-appellant has not filed his licence, which might have contained the working hours of the fair price shop. Further, in cross-examination PW-1 has categorically stated that the time of opening of the shop is not mentioned in the licence and in rural area there are no timings of opening and closing of the shop. It can be opened at the time of sun-rise up to sun-set. The accused neither in his statement u/s. 251 Cr.P.C. nor u/s. 313 Cr.P.C. has stated a single word about it. Therefore, the prosecution allegations in this regard stood proved beyond any reasonable doubt. 12. Now as regards sale of kerosene, the raiding team had inspected the shop of the accused-appellant after having the particulars of kerosene purchased by him during the month of April, 1985. There appears to be no dispute about the quantity of the kerosene obtained by the accused-appellant from whole-sale dealer Vijay Krishan Agarwal PW-3. 12. Now as regards sale of kerosene, the raiding team had inspected the shop of the accused-appellant after having the particulars of kerosene purchased by him during the month of April, 1985. There appears to be no dispute about the quantity of the kerosene obtained by the accused-appellant from whole-sale dealer Vijay Krishan Agarwal PW-3. He has deposed that the accused-appellant had taken 400 litres of kerosene each for sale from his shop on 26.4.1985 and 29.4.1985. The accused-appellant has placed reliance on the stock register and sale register Ex. Kha-1 and Kha-2 respectively, but neither these registers have come from proper custody nor they have been legally proved. They have been proved by Kedar Tiwari D.W.-1, who is not the scribe of the registers. He has admitted in cross-examination that they have not been written in his presence. He has also stated that the purpose for which these registers are maintained has not been written thereon. Surprisingly the accused-appellant has not stated any thing about these registers in his statements before the learned trial Court. Thus, the accused could not account for the kerosene taken by him from the shop of PW-3 in the month of April, 1985 for distribution to the card-holders. 13. It has been contended by the counsel for the accused-appellant that the accused had been falsely implicated due to election rivalry . In this connection Kedar Tiwari D.W.-1 has stated brother of Rama Shanker Pradhan is Gauri Shanker S/o. Ramji, who has lost in election from the father of the accused-appellant and so the tension prevailed between the two families. However, in cross-examination this witness has stated that it is his perception regarding differences between the two families. Thus, the plea of false implication on account of election rivalry has been rightly disbelieved by the learned trial. 14. The District Supply Officer is a district level officer of his department, so the accused was required to prima facie show or lead evidence which might have prompted PW-1 to falsely rope in the accused. He could not bring anything on record, which may even throw a shadow of doubt regarding the conduct of PW-1 to falsely implicate the accused-appellant, whose sole testimony is sufficient to prove the allegations of the prosecution, as contained in the FIR. 15. He could not bring anything on record, which may even throw a shadow of doubt regarding the conduct of PW-1 to falsely implicate the accused-appellant, whose sole testimony is sufficient to prove the allegations of the prosecution, as contained in the FIR. 15. In view of the above discussion, the inevitable conclusion is that the learned trial Court has not at all erred in convicting the appellant for the offence punishable u/s. 3/7 E.C. Act as he has violated the control orders mentioned in the FIR and in his statement recorded u/s. 251 Cr.P.C. 16. Learned counsel for the accused-appellant has vehemently argued that the incident is about 30-years' old, and the instant appeal is pending for more than 27-years, so lenient view in the matter of sentence would meet the ends of justice. He has further submitted that pursuant to cancellation of bail by this Court and issue of non-bailable warrant of arrest against the accused-appellant, he is in jail since 3.11.2014, so he may sentenced to period of imprisonment already under gone by him and for this purpose reasonable fine can be imposed on him. He has placed reliance on the case of S. Chinnasamy v. Seed Inspector, Coimbatore 2007 (57) ACC 565 (SC), wherein the Apex Court has reduced the sentence of three months awarded to the accused-appellant to period of imprisonment already gone (about one month), but fine of Rs. 1,000/- was maintained. I have perused the report carefully and find that there were several mitigating circumstances before the Apex Court to reduce the sentence apart from the concession on three counts given by the State counsel and the accused was on bail. In Section 7 (1)(a)(ii) of the E.C. Act for contravening any order except as mentioned in clause (h) or (i) of Section 3 (2) Essential Commodities Act, the accused can be imprisoned for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. The legislature has not provided that in a given case for recorded adequate reasons, the Court can reduce the period of imprisonment. The legislature has not provided that in a given case for recorded adequate reasons, the Court can reduce the period of imprisonment. In these circumstances, if the most lenient view is taken by this Court in favour of the accused-appellant, it cannot award lesser imprisonment then prescribed in the statute, particularly when the learned trial Court has awarded sentence of one years' R.I. and the accused is already in jail since 03.11.2014. 17. In view of what has been said and done above, the appeal is partly allowed. The conviction of the accused-appellant for the offence u/s. 3/7 E.C. Act is confirmed. However, sentence of one year's RI is substituted by three months' R.I. with fine of Rs. 1,000/-. In default of payment of fine, the accused-appellant would further undergo imprisonment for a week. The appellant is in jail and would serve out the remainder of the sentence. 18. Let copy of the judgment be transmitted to the Court concerned immediately for necessary compliance, which should be reported to the Court within 6-weeks.