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Madhya Pradesh High Court · body

2014 DIGILAW 43 (MP)

Siddhmuni Yadav v. State of M. P.

2014-01-08

N.K.GUPTA

body2014
Judgment Both the matters are related with a common judgment, and therefore, the same are hereby decided with a common judgment. 2. Vide judgment dated 13.11.2003 passed by the Special Judge under Essential Commodities Act, Shahdol in Special Case No. 6/2002, the appellant Siddhmuni Yadav, was convicted for the offence punishable under Section 3/7 of the Essential Commodities Act (hereinafter referred to as “EC Act”) and sentenced with 6 months' R.I with fine of Rs.2,000/-, whereas the Tanker bearing registration No. MP19-A/3698, which was found involved in the crime was also confiscated. Being aggrieved with the aforesaid judgment, the appellant Siddhmuni Yadav, has preferred the present criminal appeal No.1936/2003 whereas the applicant Amar Kumar Verma has preferred the present petition M.Cr.C.No.8267/03 under Section 482 of Cr.P.C to quash the order of confiscation. 3. The brief facts of the case are that on 16.10.2002 one Harendra Singh (PW-2) informed Mahendra Singh (PW-1) that driver Lal Bihari of Tanker bearing registration No. MP19-A-3698 was getting kerosene oil in the compartment of the Tanker at shop of one Ram Lakahn situated at Budwa and therefore, Harendra and Mahendra took the control of that Tanker and also held the driver Lal Bihari. They informed ASI Udaybhan Sharma (PW-4) on telephone. In the meanwhile, the accused Siddhmuni Yadav, who was the cleaner of that Tanker took the Tanker and ASI Udaybhan Sharma found him along with the Tanker at Devlond Trivia. The Tanker was seized. It was found that 3000 litres of kerosene was filled up in the compartment No. 3 of that Tanker and it was seized vide seizer memo Ex.P-3. The sample of kerosene was taken and sent for it analysis to Forensic Science Laboratory. Further investigation of the case was handed over to Sub Inspector R.P.Singh (PW-6). After due investigation, the charge sheet was filed before the competent Court. 4. The accused Siddhmuni Yadav, abjured his guilt, however no special defence was taken and therefore, no defence evidence adduced. 5. The learned Special Judge Shahdol after considering the prosecution evidence acquitted the accused Lal Bihari and Ram Lakhan but convicted the appellant Siddhmuni Yadav, for the aforesaid offence and sentenced as mentioned above. Also the Tanker in question as well as kerosene was confiscated in the same judgment. 6. I have heard the learned counsel for the parties. 7. 5. The learned Special Judge Shahdol after considering the prosecution evidence acquitted the accused Lal Bihari and Ram Lakhan but convicted the appellant Siddhmuni Yadav, for the aforesaid offence and sentenced as mentioned above. Also the Tanker in question as well as kerosene was confiscated in the same judgment. 6. I have heard the learned counsel for the parties. 7. I would be apparent that the learned Special Judge acquitted the accused Ram Lakhan and Lal Bihari on the pretext that Mahendra Singh (PW-1) and Harendra Singh (PW-2) were turned hostile and it could not be established that the Tanker was filled up with 3000 litres of blue kerosene from the shop of Ram Lakhan and at the time of seizure it was not found that Lal Bihari had the possession of the Tanker or kerosene oil, however the learned Special Judge could not take the fact in consideration that witness Rama Shankar Shukla (PW-3) relating to seizure Ex.P-3 was also turned hostile. It was to be proved by ASI Udaybhan Sharma (PW-4) that the appellant Siddhmuni Yadav was in possession of the Tanker as well as kerosene. 8. According to the original intimation received by Udaybhan Sharma it was alleged that the Tanker was stationed before the shop Ram Lakhan and 3000 litres of blue kerosene was filled up in the compartment No. 2 of the Tanker and thereafter when the driver was held by the witnesses, the cleaner Siddhmuni Yadav took the Tanker away from the shop of Ram Lakhan. If most of the facts shown in the intimation could not be proved, because witnesses Harendra Singh (PW-2) and Mahendra Singh (PW-1) were turned hostile, then it was to be considered as to whether, the testimony of ASI Udaybhan Sharma could be relied for the seizure of the Tanker as well as the kerosene oil. According to the original intimation kerosene was filled up in the second compartment of the Tanker whereas according to Udaybhan Sharma kerosene was found in the third compartment. Also it is possible that kerosene from the Tanker may be transferred in various drums in a shop of some person but kerosene kept in the drum cannot be shifted in the Tanker without any proper pump. Also it is possible that kerosene from the Tanker may be transferred in various drums in a shop of some person but kerosene kept in the drum cannot be shifted in the Tanker without any proper pump. Shri Udaybhan Sharma could not find any pump in the shop of Ram Lakhan and, therefore, the entire fact that the kerosene was filled up at the shop of Ram Lakhan was found incorrect. Therefore, the accused Ram Lakhan was acquitted. The prosecution has proved that sample of kerosene was sent for analysis to the FSL by memo Ex.P-11 and a report Ex.P-8 was received to show that the sample sent to the Laboratory was found of blue kerosene, however Udaybhan Sharma has accepted that he did not give the sample of seal by which the various bottles of kerosene were sealed whereas it should have been given in the seizure memo Ex.P-3. He could not inform as to how he got four empty bottles to take the sample of the kerosene from the Tanker. One sample of kerosene was not handed over to the person from whom kerosene was recovered. ASI Udaybhan Sharma could get four bottles of blue kerosene by any other means and therefore, when the witnesses of seizure memo turned hostile and Udaybhan Sharma committed so many mistakes in seizure and taking the samples, a probable doubt appears that no blue kerosene was found in the Tanker and the Tanker was seized due to some enmity of ASI Udaybhan Sharma with Ram Lakhan. 9. It was shown that Harendra and Mahendra held the Tanker along with the driver, then it was not possible for the cleaner Siddhmuni Yadav to take the Tanker away from the spot. Secondly, in those days no facility of mobile phone was available, and therefore on intimation received from Harendra and Mahendra, ASI Udaybhan Sharma should have visited to the shop of Ram Lakhan. He could not get any information about the direction in which Siddhmuni Yadav took the Tanker and therefore, it was not possible for Udaybhan Sharma to recover the Tanker from Siddhmuni Yadav. After considering the conduct of ASI Udaybhan Sharma, it appears that a false case was created by ASI Udaybhan Sharma with the help of information received from Mahendra and Harendra and after preparation of the case Mahendra and Harnedra turned hostile. 10. After considering the conduct of ASI Udaybhan Sharma, it appears that a false case was created by ASI Udaybhan Sharma with the help of information received from Mahendra and Harendra and after preparation of the case Mahendra and Harnedra turned hostile. 10. In this connection the learned counsel for the applicant has placed his reliance upon the order passed by the Single Bench of this Court in the case of “Ram Singh Vs. State of Madhya Pradesh”, [2009(III) MPJR 38] in which it was found that three drums of kerosene were shown to be seized from the possession of the accused, but neither the seized kerosene measured by Seizing Officer nor the sample was sent for its chemical examination, and therefore it was not proved that the seized article was kerosene oil as defined in the Essential Commodities Act. In the light of the aforesaid order, if the facts of the present case are examined, then prima facie seizure memo indicates that no proper sealing of the sample was done and possibility cannot be ruled out that the samples sent to the FSL were not of the kerosene which was found in the Tanker, but those samples of blue kerosene were obtained otherwise. 11. Under such circumstances when the learned Special Judge acquitted the accused Ram Lakhan and Lal Bihari, then the testimony of ASI Uday Bhan Sharma should have been discarded. By his testimony it was not established that blue kerosene was found in the Tanker driven by the appellant Siddhmuni Yadav. A doubt is created that the Tanker was recovered from the possession of the appellant Siddhmuni Yadav, the Tanker had blue kerosene oil in it, ASI Udaybhan Sharma could get four bottles of blue kerosene and sent such bottles for analysis, hence the testimony of ASI Udaybhan Sharma was not believable and the appellant Siddhmuni Yadav was entitle to get the benefit of doubt, therefore he could not be convicted for the offence punishable under Section 3/7 of the EC Act. 12. So far as the confiscation of the Tanker in question is concerned, it appears that neither the learned Special Judge gave an opportunity to defend the applicant Amar Kumar Verma that the Tanker registered in his name was to be confiscated. 12. So far as the confiscation of the Tanker in question is concerned, it appears that neither the learned Special Judge gave an opportunity to defend the applicant Amar Kumar Verma that the Tanker registered in his name was to be confiscated. Secondly, for confiscation of the Tanker, it was to be established that the Tanker was used for the offence with consent and connivance of the registered owner of the Tanker. If entire prosecution story is considered as it is, then it is not established that the driver Lal Bihari or Cleaner Siddhmuni Yadav was permitted by the applicant Amar Kumar Verma to fill up some kerosene oil from the shop of Ram Lakhan and to transport such kerosene oil to any other place. Under such circumstances, when the applicant Amar Kumar Verma was neither made an accused nor the overt-act is established that he was involved in the crime, then the Tanker belonging to the applicant Amar Kumar Verma could not be confiscated. However, now each of the accused is acquitted from the charge of Section 3/7 of the E.C.Act, and therefore it was not established that the Tanker was used for any crime, and hence it cannot be confiscated. Under such circumstances, the order of confiscation passed by the learned Special Judge cannot be maintained. 13. On the basis of the aforesaid discussion, the appeal filed by the appellant Siddhmuni Yadav is hereby allowed. The conviction and sentence directed by the Special Judge, Shahdol against the appellant Siddhmuni Yadav are hereby set aside. He is acquitted from the charge of offence under Section 3/7 of the Essential Commodities Act by giving him a benefit of doubt. He is entitled to get the fine amount back if he has already deposited the same before the trial Court. Similarly, the petition filed by the applicant Amar Kumar Verma under Section 482 of Cr.P.C. is hereby allowed. The impugned order relating to confiscation of the Tanker is hereby set aside. The Tanker in question of the applicant is discharged from the order of confiscation. The said Tanker is no more required in the case, therefore the Supardiginama of the Tanker may also be discharged from its liability. 14. A copy of this judgment be sent to the trial Court along with its record for information and compliance.