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2015 DIGILAW 40 (GUJ)

State of Gujarat v. Kamlesh Manharprasad Dave

2015-01-13

K.J.THAKER

body2015
ORDER : Kaushal Jayendra Thaker, J. 1. Heard learned Additional Public Prosecutor for the appellant - State and learned Advocate for the respondents. By way of this Appeal, the appellant - State has felt aggrieved by the judgment and order dated 14.12.1995 of the learned Special Judge, Ahmedabad City in Special Criminal Case No. 18/1994 wherein the accused No. 1 - Kamlesh Manharparasad Dave and accused No. 2 - Kishorkumar Mahipatray Acharya were acquitted of the charges and the accused No. 3 - M/s. Y.S. Syntex Project Ltd. was ordered to pay a fine of Rs. 5,000/- and in default, the same was ordered to be recovered from the assets of the Company. All the above offences were under Sections 3 and 7 of the Essential Commodities Act, 1955. (hereinafter referred to in short as 'the Act'). 2. The facts of the case in brief are as under:-- "The accused No. 1 was the Packing Supervisor and the accused No. 2 was the Factory Manager with the accused No. 3. All the above were taken to trial for the contravention of Clause 3(d) of Notification No. CER-18/88-CLB dated 07.03.1988 issued under Section 3 of the Act and thereby the accused had committed the offence under Section 3 of the Act, which is punishable under Sections 7 and 10 of the Act. The Textile Commissioner had issued Notification under Clause 17 of the order. The accused No. 3 was bound to comply with the provisions of the Notification. The Notification intended to protect the consumers against misleading markings and descriptions on cloth. According to Clause 3(d) of the Notification, the manufacturers were required to stamp the exact composition of the cloth expressed in percentage by weight of each of the individual constituents to the total yarn content if both warp and weft put together. On 01.09.1993, two Enforcement Inspectors (Technical) of the Regional Textile Commissioner's Office, Ahmedabad visited the Company on a regular inspection. The two inspectors opened Sort No. 3474 and took out 15 corns of yarn. Each corn was having stamping of cotton 52% - polyster 48%. Thereafter, three sets were prepared and were sealed after affixing signature of Panchas, both the Inspector and of one - Mr. P.K. Jain on behalf of the Company. The two inspectors opened Sort No. 3474 and took out 15 corns of yarn. Each corn was having stamping of cotton 52% - polyster 48%. Thereafter, three sets were prepared and were sealed after affixing signature of Panchas, both the Inspector and of one - Mr. P.K. Jain on behalf of the Company. One set was returned to the accused No. 3 (the Company) with a direction to produce the same whenever required whereas the other two sets of corn of yarn were taken away by the two Inspectors. The corn was thereafter, sent to the Textile Committee Laboratory, Coimbatore for testing. The report received showed that the sample cloth contained 56.04% cotton and 43.96% polyster as against 52% cotton and 48% polyster printed on the yarn. As there was variance of more than 3%, the Assistant Director filed an FIR, which was registered as an offence. The investigation was handed to the PSI. The PSI recorded the statement of the concerned and after collecting evidence, the chargesheet came to be filed against the accused. The learned APP filed an application under Section 319 of the Code of Criminal Procedure, 1973 to join the accused No. 3 as the co-accused, which was allowed." 3. To prove the case against the present accused, the prosecution has examined several witnesses, and the prosecution also relied on several documentary evidences which are:-- Particulars Exhibit PW No.1 – Sharadchandra Dattaray Dixit 17 Notification. 28 Letter written to the Textile Committee Laboratory, Coimbatore for testing of the sample 29 Panchnama. 44 PW No.2 – Gunjankumar Shrikrishan Mohan Sajai 45 PW No.3 – Ranjitsingh Devisingh Vaja. 47 4. In the above background of facts, learned Additional Public Prosecutor has submitted that the considering the position held by the accused No. 1 and 2 in the Company and their duties, the finding of the Court is such which requires interference by this Court. 5. At this stage, it is relevant to reproduce Paragraphs 15 and 17 of the judgment and order of the learned Special Judge, which reads as under:-- "15. The test report for the sample which sent to Regional Test House, Textile Committee, Coimbatore is on record at Exh. 30. As per the said report, the polyester is 43.96% and cotton is 56.04%. According to the Panchnama produced at Exh. 41, blend percentage on the sample was shown that of polyster 48% and cotton 52%. The test report for the sample which sent to Regional Test House, Textile Committee, Coimbatore is on record at Exh. 30. As per the said report, the polyester is 43.96% and cotton is 56.04%. According to the Panchnama produced at Exh. 41, blend percentage on the sample was shown that of polyster 48% and cotton 52%. In para 6 of the complaint at Exh. 31, there is a mention as under:-- "6. The test results of Textile Committee at Coimbatore indicates that the actual blend composition is Cotton - 56.04% and Poly - 43.96% against the stamped blend composition of fibres on the cloth made by the manufacturer, and which is beyond the tolerance limit of + 3 units according to relevant I.S.I. Specification as laid down in Clause 3(f) of the Notification." The prosecution has produced at mark 51/1 Indian Standard Specification for Blend Composition of Textiles. Below Column No. 2 of Requirements of Blend Composition of Textiles, at No. 2.2 which says about the tolerance, it is mentioned that it shall be permitted on individual component at 3%. 17. So far as the responsibility of accused Nos. 1 and 2 is concerned, there is nothing on record to show that they are in any way responsible for the day-to-day working of accused No. 3 Company. Accused No. 1 is a Packing Supervisor whereas accused No. 2 is Factory Manager of accused No. 3 Company. The position held by accused Nos. 1 & 2 itself suggests that they are liable for packing as well as general administration of the factory respectively. Accused No. 2 has clarified in his further Statement that over and above his work of general administration, he was looking after labour matters of accused No. 3 Company. It has also not come on record that both the accused Nos. 1 & 2 were present when the Technical Investigator Mr. Sahay alongwith Shri. G.R. Mina visited the premises of accused No. 3 on the contrary, one Shri. P.K. Jain was present at the factory premises who signed the Panchnama as well as certain other documents. It has also not come on record that both the accused Nos. 1 & 2 were present when the Technical Investigator Mr. Sahay alongwith Shri. G.R. Mina visited the premises of accused No. 3 on the contrary, one Shri. P.K. Jain was present at the factory premises who signed the Panchnama as well as certain other documents. Earlier Shri Jain appeared on behalf of accused No. 3 Company, but as he was cited as one of the witnesses, he withdrew his appearance on behalf of the Company and accused No. 1 again appeared on behalf of the Company and accused No. 1 appeared again on behalf of the accused No. 3 Company. In any case, the prosecution has failed to prove that the present accused Nos. 1 & 2 are personally liable for any offence committed by accused No. 3 Company. I find cogent and plausible evidence against accused No. 3 Company for the variance that has been found by the Textile Committee, Coimbatore's report produced at Exh. 30. The variance is more than 3% and therefore, I find accused No. 3 guilty for the offence with which it has been charged." 6. In the aforesaid circumstances, I concur with the judgment and order of the learned Special Judge of the Special Civil Court which has elaborately discussed the letter on the complaint in Paragraph 15 of the judgment. More particularly, Paragraph 17 of the said judgment and order cannot be found fault with as the grounds urged by the Appellant are considered in extenso by this Court. 7. At this stage, it is relevant to refer to the latest decision of the Apex Court reported in the case of Phula Singh v. State of Himachal Pradesh reported in AIR 2014 Supreme Court 1256. Relevant paragraphs of the judgment reads as under:-- "8. The accused has a duty to furnish an explanation in his statement under Section 313, Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313, Cr.P.C. is being recorded. If the accused has been given the freedom to remain silent during the investigation as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313, Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357 ; Munish Mubar v. State of Haryana, AIR 2013 SC 912 ; and Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan, AIR 2013 SC 3150 ). In the instant case, we fail to understand as under what circumstances the appellant could maintain complete silence particularly, in view of the fact that he did not deny his visit to the house of the complainant or that his shirt was found hanging on the beg in the wall and that his hands turned pink on being washed with sodium carbonate water. We do not find any force in the submission advanced by Shri. D.K. Garg that it was not a fit case where the High Court ought to have reversed the well reasoned judgment of acquittal as it was based on evidence on record. We are fully aware of limitations of the appellate Court to interfere with an order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate Court can interfere with the order of acquittal. The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 11. In the instant case, there is no perversity in the judgment of the High Court as it cannot be said that the judgment is not based on evidence or the evidence on record has not properly been reappreciated by the appellate Court, which may warrant interference by this Court." 8. On going through the above decision, I am of the view that even on a second reading, it cannot be said that there are two views possible and only one view is possible. 9. On going through the above decision, I am of the view that even on a second reading, it cannot be said that there are two views possible and only one view is possible. 9. In view of the above, the judgment and order dated 14.12.1995 of the learned Special Judge, Ahmedabad City in Special Criminal Case No. 18/1994 is confirmed. The Appeal is devoid of merits and stands dismissed. Record and proceedings shall be sent back to the Trial Court forthwith.