Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 49 (GUJ)

OMPRAKASH BABULAL AGRAWAL v. STATE OF GUJARAT

2015-01-16

K.J.THAKER

body2015
JUDGMENT 1. This is an appeal of 1995 arising out of the judgment in Special Case No.93 of 1992. However, this appeal remained in the cut-off board for very long time may be because of the fact that the accused is enlarged on bail. 2. By way of this appeal, the appellant, who was accused in Special Criminal Case No.93 of 1992 has challenged the conviction recorded by the learned Special Judge, Court No.2, Ahmedabad and sentenced him to suffer rigorous imprisonment for three months and to pay fine of Rs.1,000/-, in default to suffer rigorous imprisonment for 15 days vide judgment and order dated 24.10.1994. 3. It is the case of the prosecution that the accused, Omprakash Agrawal was running a grain and beans shop in the name of Agrawal Trading Company at Satyamnagar, Amraiwadi, Ahmedabad. On 11.5.1990, the Assistant Food Controller, Mr. Bhalkar, along with Supply Inspector, Mr. Kapadia and Mr. A.A. Shaikh inspected the shop of the accused. They reached the shop of the accused at 7.45 p.m. and found that no board was displayed outside the shop. The accused was present in the shop. Two panchas were called and in their presence inspection of the shop was carried out. It was found that in the shop, no record viz. the Stock Register and/or Bill Books were maintained. The accused did not possess the licence under the 1981 Order for carrying on the business of selling essential articles. The shop was having two shutters. In one part of the shop, 280 bags of wheat, 52 bags of rice each of 100 kg. and 89 bags of rice each of 50 kg., were found. The stock of rice was more than the maximum prescribed under the 1981 Order and therefore the accused was liable to obtain the licence for the same. As the accused did not possess the licence, bags of rice, 52 and 89 in number, were seized. The original seizure order was served on the accused and his signature was obtained on the copy of the seizure order. Statement of the accused was recorded with regard to irregularities found during the inspection of the shop. A detailed panchnama of the inspection of the shop was drawn in the presence of the panchas. 4. The original seizure order was served on the accused and his signature was obtained on the copy of the seizure order. Statement of the accused was recorded with regard to irregularities found during the inspection of the shop. A detailed panchnama of the inspection of the shop was drawn in the presence of the panchas. 4. On 14.5.1990, the Assistant Food Controller again inspected the shop of the accused in the presence of panchas and at that time, the shop of the accused was closed. Search for the accused was made at his residence but he was not found. Thereafter, in the presence of brother of the accused, Jagmohan Babulal Agrawal, the shutter of the shop was opened by breaking the lock. The stock of 295 bags of wheat, 50 kg. of peas (kathod) 25 kg. of Adad pulse, 50 kg. of mag pulses, 60 kg. of Masur pulses and 40 kg. of Tuvar pulses were seized and a seizure memo was served on the brother of the accused, Jagmohan. Said stock which was seized was handed over to the brother of the accused for keeping the same in safe custody on behalf of the Government. 5. By order dated 4.6.1990, the Additional Collector and the Food Supplies Controller, Ahmedabd city, by an interim arrangement directed to release the seized stock on a condition that the accused gives the bank guarantee of Rs.1,33,767/- or fixed deposit receipt or cash in the sum of Rs.1,33,767/- before the concerned authorities. Against that order, the accused preferred Special Civil Application No.4384/90 before this High Court. This Court by order dated 10.7.1990 modified the order of Food Controller directing the accused to furnish 50% of the said amount of bank guarantee and remaining 50% as surety. The accused was directed to furnish the bank guarantee and solvency certificate on 18.7.90. The accused did not furnish bank guarantee or solvency certificate and therefore it was decided to sell the seized stock by public auction. 6. On 17.8.1990, the Assistant Food Controller, S.M. Patel, Chief Supply Inspector, Kulkarni and Supply Inspectors, Kapadia, Patel and Shukla had gone for inspection of the shop of the accused. The accused was not present in the shop but his wife Premaben and the nephew of the accused were present. 6. On 17.8.1990, the Assistant Food Controller, S.M. Patel, Chief Supply Inspector, Kulkarni and Supply Inspectors, Kapadia, Patel and Shukla had gone for inspection of the shop of the accused. The accused was not present in the shop but his wife Premaben and the nephew of the accused were present. The wife of accused informed that accused was under detention and, therefore, she was running the shop in the name of Satyam Trading Co. and therefore outside the shop there was a board in the name of Satyam Trading Co. From Satyam Trading Co., the stock of 700 kg. of rice, 100 kg. of wheat, 50 kg. of Peas, 100 kg. of Mag Mogar (pulses) and 100 kg. of Mag Pulses was found. A detailed panchnama of the stock was drawn in the presence of panchas. The wife of accused also affixed her thumb impression in the panchnama. During inspection, it was found that stock which was seized by the Civil Supply Officers on 11.5.1990 was missing from the shop of the accused. As the accused had sold away the seized stock and violated the condition of seizure order, the Food Controller had decided to lodge a complaint against the accused and authorized the Supply Inspector, Shri Patel to file complaint at Amraiwadi Police Station. Civil Supply Inspector, J.G. Patel, therefore, lodged a complaint on 27.8.1990 at Amraiwadi Police Station against the accused being C.R.No.II-304/1992. 7. The investigation was carried out and charge-sheet came to be filed against the accused. The accused pleaded not guilty and claimed to be tried. 8. To bring home the charge, the prosecution has examined in all 13 witnesses. The prosecution also produced several documentary evidence in support of its case. 9. At the conclusion of the trial, learned trial Judge convicted the accused by passing impugned judgment. Being aggrieved by it, the appellant-accused has preferred present appeal. 10. Heard Mr. Joshi for Mr. Thakkar, learned advocate for the appellant and Ms. Shah, learned APP for the respondent-State. 11. Mr. Joshi, learned advocate for the appellant submitted that the learned Judge has erred in not even referring to the evidence of the Investigating Officer, Mangalprasad B. Mishra, Exh.79. He also submitted that the complainant has not given any papers regarding the offence to the investigating officer, therefore, no inquiry was made by the investigating officer regarding muddamal. 11. Mr. Joshi, learned advocate for the appellant submitted that the learned Judge has erred in not even referring to the evidence of the Investigating Officer, Mangalprasad B. Mishra, Exh.79. He also submitted that the complainant has not given any papers regarding the offence to the investigating officer, therefore, no inquiry was made by the investigating officer regarding muddamal. He submitted that wife of the accused-appellant is also running a shop under the name of ‘Satyam Trading Co.’ which is beside the shop of the appellant. Hence, the complainant had visited the shop of the appellant’s wife and the panchnama was drawn. This coupled with the fact that the appellant was already detained under the Prevention of Black-marketing Act, there was no question of disposing of the goods which was seized. Therefore, it is clear that the Assistant Food Inspector had visited the shop of the appellant’s wife and had drawn a panchnama. He also submitted that panchas were declared hostile, coupled with the fact that during investigation nothing was borne out with regard to disposal of the goods which were seized, goes to show that the offence against the appellant is not proved. He submitted that the appellant had never hoarded rice beyond prescribed limit of 50 quintals. He submitted that the appellant was already detained under the Prevention of Black-marketing Act on 7.7.1990 and, therefore, he was not present at the time of second raid on 17.8.1990. He, therefore, submitted that the second raid was made in absence of the accused. He also submitted that since this is the first offence of the appellant, he ought to have been granted the benefit under the Probation of Offenders Act. He lastly submitted that the offence in question is 25 years old and the accused is now aged about 66 years, therefore also, he may be shown some mercy. In view of these submissions, he prayed that this appeal may be allowed and the impugned judgment may be quashed and set aside. 12. Per contra, Ms. C.M. Shah, learned APP for the State supported the impugned judgment. Ms. Shah submitted that when the shop of the accused was inspected, huge stock of wheat, rice, pulses and beans were found, which was meant for sale. She submitted that the accused was present at the time of inspection and he could not produce stock register, bill book etc. C.M. Shah, learned APP for the State supported the impugned judgment. Ms. Shah submitted that when the shop of the accused was inspected, huge stock of wheat, rice, pulses and beans were found, which was meant for sale. She submitted that the accused was present at the time of inspection and he could not produce stock register, bill book etc. She also submitted that the accused was not having licence as required under Clause 3 of 1981 order, and therefore, the food grains were seized. She also submitted that the prosecution witnesses have supported the case of the prosecution. She also submitted that after seizure of the stock, the accused approached this Honourable High Court by filing Special Civil Application No.4334 of 1990 and vide order dated 4.6.1990, this Honourable Court directed to release the seized stock on the accused furnishing 50% of the bank guarantee and 50% surety. The accused did not comply with this order and when shop of the accused was visited on 17.8.1990, it was found that in violation of the aforesaid order of this Court, the stocks were disposed. She also submitted that there is no infirmity in the impugned order. She submitted that the lower court has rightly appreciated the evidence on record and convicted the respondent of the charges levelled against him. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed and the appeal may be dismissed. 13. Having heard the learned advocates for the parties and having considered the evidence on record, it is clear that the shop of the accused was inspected on 11.5.1990 and huge stock of wheat, rice, pulses and beans were found. The evidence of the prosecution witnesses clearly show that the accused was dealer within the meaning of 1977 order and the accused had not maintained stock register, bill books. Similarly, the accused had not obtained licence under Clause 3 of the 1981 order as the stock of rice was beyond maximum limit prescribed under the said order. Even if the statement of the accused is ignored, there is sufficient evidence on record to show that the accused was a dealer and had not obtained licence under 1981 order. Considering the evidence on record, the learned trial Judge has rightly held that the accused had violated the directions given in the Seizure Order. Even if the statement of the accused is ignored, there is sufficient evidence on record to show that the accused was a dealer and had not obtained licence under 1981 order. Considering the evidence on record, the learned trial Judge has rightly held that the accused had violated the directions given in the Seizure Order. It is also found by the learned trial Judge that the prosecution has proved the case beyond reasonable doubt against the appellant-accused and, therefore, the learned trial Judge has rightly convicted the appellant-accused. 14. The factual background and the evidence on record would not permit this Court to take a different view than the one taken by learned Special Judge. Not only that, submissions advanced on behalf of the accused cannot be accepted as the evidence before the learned trial Judge was clinching. Therefore, judgment of the learned Special Judge is required to be confirmed and I do not find any reason to interfere with the impugned judgment. 15. In the result, the appeal is hereby dismissed. The impugned Judgment and order dated 24.10.1994 passed by learned Special Judge, Court No.2, Ahmedabad in Special Criminal Case No.93 of 1992, convicting the accused-appellant, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. FURTHER ORDER Mr. Joshi, learned advocate for the appellant states that his client is not responding to him and the letters written by him have returned back. Since this appeal is dismissed, the jail authority to take action so that the accused undergoes the sentence imposed by learned Special Judge, Court No.2, Ahmedabad in Special Criminal Case No. 93 of 1992.