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2014 DIGILAW 851 (BOM)

Ramdas Waman Bagad v. State of Maharashtra

2014-04-01

SADHANA S.JADHAV

body2014
JUDGMENT The appellant herein is convicted for offence punishable under Section 3 sub-section 2 read with Section 7 sub-section 1 clause (a)(ii) of the Essential Commodities Act, 1955 and sentenced to suffer S.I. for 6 months and to pay fine of Rs. 2000/- i.d. to suffer S.I. for one month by the Special Judge under E.C. Act, Nashik in E.C. Case No. 24 of 1994 vide Judgment and Order dated 9th August, 1995. Hence, this appeal. 2. Such of the facts necessary for the decision of this appeal are as follows : PSI S.S. Neve (PW 1) was attached to Vadner Khakurdi Police Station. On 27th October, 1994 when he was on patrolling duty, at about 6.45 p.m. he received a secret information that the present appellant who happens to be the proprietor of a grocery shop, run in the name and style of "Dinesh Grocery Shop" was selling diesel without valid permit or licence at a high rate near hotel Shiva. On receipt of the said information, PW 1 requested a passerby to act as decoy. The said person agreed. Thereafter, PSI requisitioned the services of two persons working as waiters in Shiva Hotel to act as panchas and decided to raid the premises. PSI had handed over a note of Rs. 50/- denomination to the decoy and also provided one canister for the purpose of purchasing diesel from the accused. The number of the denomination was noted down and had further marked the said note as "W.K." He had given instructions to decoy to give a signal after purchasing diesel. Accordingly, the decoy witness went to the shop of the accused and purchased diesel, thereafter, flashed the torch light as a signal that the job was accomplished. The police and panchas went to the shop alongwith the decoy. PSI interrogated the accused who disclosed his identity as Ramdas Bagad i.e. the present appellant. The facts were verified and confirmed through decoy witness. 3. The decoy had purchased diesel and had paid the marked denomination towards the said purchase. The appellant had returned Rs. 5/-. Panchanama was drawn. The PSI had seized the note of Rs. 50/- and 15 ltrs of diesel which was stored in the shop of the accused, alongwith two empty drums and a funnel. The copy of the panchanama was handed over to the accused and his signatures were obtained. The appellant had returned Rs. 5/-. Panchanama was drawn. The PSI had seized the note of Rs. 50/- and 15 ltrs of diesel which was stored in the shop of the accused, alongwith two empty drums and a funnel. The copy of the panchanama was handed over to the accused and his signatures were obtained. The PSI then reported the said raid to Khakurdi Police Station on 28th October, 1994. On the basis of the said report, Crime No. 10 of 1994 was filed against the accused. After completion of investigation, charge-sheet was filed on 28th October, 1994. 4. The prosecution examined 3 witnesses to bring home the guilt of the accused. P.W.1 is Subhash Neve who had received the secret information and had carried out the raid. He has deposed before the Court that he had received the information and had conducted raid after following due procedure. According to him, the complaint was filed on 28/10/1994. The first information report is at Exh. 8. It is elicited in the cross-examination that there are 5 to 6 shops near shop of the accused at Aghar-Phata. House of the police patil is adjacent to the shop of the accused. He has admitted in the cross-examination that he had not noted down the number on the denomination note, which was handed over to the decoy witness. According to him, the number was noted in the panchanama. He has admitted that they had not informed the police patil of village Aghar. It is further admitted that he had not gone to the police station personally to lodge the FIR. He had reduced down the complaint at Ravalgaon Police Chowky and thereafter handed over to the constable Jadhav for the purpose of registration of crime. He had sent all the relevant papers alongwith the FIR. It is admitted that muddemal article No. 2 and 5 do not bear signature of anybody. He has admitted that he and raiding party had not given personal search to the accused. 5. P.W.2 Ramdas Shinde is the decoy witness. He has deposed before the Court that he was given Rs. 50/- and was requested to purchase diesel from the shop of Wani i.e. the present appellant. He had purchased 5 ltrs of diesel and paid Rs. 50/-. The accused appellant had returned Rs. 5/-. He had given the signal. 5. P.W.2 Ramdas Shinde is the decoy witness. He has deposed before the Court that he was given Rs. 50/- and was requested to purchase diesel from the shop of Wani i.e. the present appellant. He had purchased 5 ltrs of diesel and paid Rs. 50/-. The accused appellant had returned Rs. 5/-. He had given the signal. The police had taken search of the shop and the accused. A can was found containing diesel approximately 20 to 25 ltrs. The panchanama was drawn on the platform abutting the shop of accused. His statement was recorded by the PSI on the following day. He has identified the accused in the court. It is elicited in the course of cross-examination that there are 7 to 8 shops near the shop of the accused. The witness could not identify Rs. 50/- note that was given to him. He has admitted in the cross-examination that the police had taken out the can from the jeep and handed it over to him for the purpose of purchasing the diesel. The accused had not passed any receipt towards purchase of diesel nor he had requested the accused to give a receipt towards purchase of the diesel. The witness has further admitted that the residential house of the accused is near the shop. 6. P.W.3 Kautik Pawar who was working as a waiter in Hotel Shiva and had acted as a panch has been declared hostile by the prosecution. 7. The prosecution had placed on record the copy of the CA report which is at Exh. 9. The C.A. report shows that the can was containing diesel. In the statement under Section 313 of the Code of Criminal Procedure, 1973, the accused/appellant, in question No. 12 has stated that the can was containing kerosene and not diesel. However, the CA report has not been challenged. Rather it appears that the CA report was admitted under Section 294 of the Code of Criminal Procedure, 1973 and therefore, the answer to the said question would loose its significance. 8. The learned Counsel for the appellant has placed re1iance upon the Judgment of this Court in the case of Sunil Prem such Sancheti & ors. reported in 2007 B.C.R. 188. Learned Counsel for the appellant submits that the officer who lodged the complaint had no authority from Government for the purpose of search and seizure. 8. The learned Counsel for the appellant has placed re1iance upon the Judgment of this Court in the case of Sunil Prem such Sancheti & ors. reported in 2007 B.C.R. 188. Learned Counsel for the appellant submits that the officer who lodged the complaint had no authority from Government for the purpose of search and seizure. According to the learned Counsel for the appellant, search and seizure was not conducted by authorised officer and therefore, the trial is vitiated. The learned Counsel further submits that the prosecution has not placed on record the provisions of the order which was contravened and therefore, according to him the appellant herein deserves acquittal. 9. Section 3(2)(d) reads as follows : "Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity." In the present case, the appellant had signed the panchanama drawn pursuant to the seizure of diesel from his shop. Till the stage of recording of statement under Section 313 of the Code of Criminal Procedure, 1973, there was no challenge to the fact that what was seized was not diesel but was kerosene. It is clear that the appellant did not possess licence for storage and sale of diesel. The fact that P.W.2 had purchased diesel from the appellant and that the CA report confirmed that it was diesel, is sufficient to hold that the appellant had contravened provisions of Section 3(2)(d). 10. Section 7(1)(a)(ii) contemplates imprisonment 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; provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than three months. 11. This Court is of the opinion that the impugned Judgment and order is dated 9th August, 1995. The Court is inclined to uphold the conviction of the appellant for offence punishable under Section 3(2) read with Section 7(1)(a)(ii) of the Essential Commodities Act. The learned Counsel for the appellant submits that the appellant is an old aged person and therefore, he should not be sent to jail after 19 years of passing of the impugned Judgment. The Court is inclined to uphold the conviction of the appellant for offence punishable under Section 3(2) read with Section 7(1)(a)(ii) of the Essential Commodities Act. The learned Counsel for the appellant submits that the appellant is an old aged person and therefore, he should not be sent to jail after 19 years of passing of the impugned Judgment. Hence, although the conviction is upheld, the sentence is modified. He is sentenced to the period already undergone. 12. In view of the above mentioned circumstances, the Criminal Appeal is dismissed. The conviction of the appellant for offence punishable under Section 3 read with Section 7 of the Essential Commodities Act is upheld. However, since the conviction is of the year 1995 and the matter is being heard in the year 2014, the sentence is modified. The appellant is sentenced to the period already undergone. His bail bond stands cancelled. However, the fine amount is enhanced to Rs. 10,000/- in addition to the fine imposed by the Special Judge, Under Essential Commodities Act, Nashik vide Judgment and Order dated 9th August, 1995. The appellant to deposit fine amount within six weeks from the date of this order. Appeal dismissed.