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2016 DIGILAW 1946 (GUJ)

Mohanbhai @ Sunderbhai Kasiram Gupta v. Ashokbhai Shankarlal Rathod Supply Inspectoar

2016-09-06

G.B.SHAH

body2016
JUDGMENT : G.B SHAH, J. The present appeal has been filed by the appellant-original accused being aggrieved and dissatisfied with the judgment and order dated 22.7.1999 passed by the learned Special Judge, Court No. 15, Ahmedabad City, in Special Criminal Case No. 115 of 1994 whereby the appellant-accused has been convicted and sentenced to undergo RI for one year and to pay fine of Rs. 5,000/-, in default, to undergo further RI for two months for the offence under section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as “the said Act” for short) punishable under section 7 of the said Act. 2. Facts in short are that on a raid being conducted by the Officers of Food and Civil Supplies Department at the premises of M/s. R. Industrial Estate below Chamunda Bridge on receipt of a secret information on 17.8.1992 at about 8.00 p.m., liquid weighing 2610 liters purported to be of kerosene was stored without any valid license in the underground tanks. Thereafter, the investigating officer drew sample of 750 ml. each of the liquid and marked as “A”, “B”, “C” and “D” and they were properly sealed as per the prescribed provisions and they sent for FSL analysis. Upon receipt of report of FSL analysis, a complaint came to be filed against the accused for contravening and violatingp clause (3) of the Gujarat Essential Articles (licensing, Control and Stock Declaration) Order, 1981 (hereinafter referred to as “the Said Order” for short) and accused came to be charged under section 3 of the said Act which is punishable under section 7 of the said Act. He was produced before the Court where his plea was recorded. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. In order to prove the charge against the accused, the prosecution examined in all five witnesses and also produced various documentary evidence. At the end of trial, after hearing the learned advocates appearing for the respective parties, the impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to the present appeal by the original accused. 3. Heard learned advocate, Mr. K.I Kazi for learned advocate, Mr. Gulamrasul Shaikh for the appellant-original accused and learned Addl. Public Prosecutor, Mr. K.L Pandya for the respondent No. 2-State. 3. Heard learned advocate, Mr. K.I Kazi for learned advocate, Mr. Gulamrasul Shaikh for the appellant-original accused and learned Addl. Public Prosecutor, Mr. K.L Pandya for the respondent No. 2-State. Respondent No. 1 did not appear either personally or through advocate though duly served. 4. Learned advocate, Mr. Kazi for the appellant-accused, submitted that the impugned judgment and order is contrary to the law and evidence on record. Taking this Court through the statement given by the accused before the Inspector on 20.8.1992 recorded at Exh.21, he submitted that the ownership and possession of kerosene of 2610 liters of kerosene were not of the appellant. Drawing attention towards the Rent Agreement dated 1.8.1992 at Exh.26 and the incident alleged to have been occurred on 17.8.1992, he submitted that considering the said short span, it is practically impossible for the appellant-accused to indulge in any illegal activity. Moreover, in the Rent Agreement itself, it was shown that the said premises were hired by the appellant for stone and tile polishing business and yet the said process has not been initiated. He further submitted that if the panchnama of scene of incident is perused, it would appear that 2610 liters of kerosene were found from one iron tank and cement tank which would indicate that it is practically impossible to construct the said tanks within 17 days of taking the premises on rent and if at all the said activities are carried out, same must have been carried out by the landlord himself but no action has been taken against the said landlord. He took this Court through the statement of the landlord-Ramprakash Sukhvasilal Srivastav recorded at Exh.59 in order to substantiate the said aspect. Drawing attention of this Court on the mandatory provisions as stated in IS-1459-1974 (Indian Standard-Specification for Kerosene) for taking and sealing the sample bottles were not followed by the Civil Supplying Officers during the raid. He further submitted that the trial court has not properly appreciated the entire oral as well as documentary evidence on record and the reasons assigned for recording the finding of conviction are unjust, illegal and improper and therefore, it is requested that same requires to be quashed and set aside and the appellant-accused deserves to be acquitted by allowing this appeal. 5. Learned Addl. Public Prosecutor, Mr. 5. Learned Addl. Public Prosecutor, Mr. K.L Pandya, for the respondent No. 2-State submitted that the trial court has rightly appreciated the oral as well as the documentary evidence. Drawing my attention towards the panchnama at Exh.49, seizure order at Exh.22 and documents at Exhs.24 and 25 produced by the accused himself during the course of investigation, he submitted that possession of 2610 liters of kerosene at the premises in control of the appellant without any license or permit has been proved by the prosecution beyond reasonable doubt and, therefore, the accused is responsible for committing the offences alleged against him. He, therefore, urged to dismiss the present appeal. 6. I have gone through the impugned judgment and order passed by the trial court together with oral as well as documentary evidence and have also considered the rival submissions made by learned advocates for the respective parties. 7. In the present case, there is nothing on record to establish that the Department of Food and Civil Supplies had not followed the prescribed procedure while conducting raid and in seizing and sealing the samples till they were sent for FSL analysis. As regards the premises not in control of the appellant-accused as submitted by the learned advocate for the appellant is concerned, it is to be noted that the stamp for execution of the Rent Agreement was purchased on 22.6.1992 by the appellant herein and it was executed on 1.8.1992, but as disclosed by the landlord, there were all possibilities that before execution of the Rent Agreement, the appellant-accused must have initiated his work. Moreover, if at all the landlord had made the alleged construction of iron and cement tanks, then the appellant must have taken action against the landlord on coming to know of the said illegal activities. However, no action appears to have been taken by the appellant against the landlord. Neither any notice has been served nor has the Rent Agreement been terminated by the appellant. Instead, he himself has approached the concerned officials of the department and handed over the rent receipt as well as put his say in writing. Further, it is clear from the statement of Ramprakash Sukhvasilal Srivastav recorded at Exh.59 that the premises was in control of the appellant accused. Instead, he himself has approached the concerned officials of the department and handed over the rent receipt as well as put his say in writing. Further, it is clear from the statement of Ramprakash Sukhvasilal Srivastav recorded at Exh.59 that the premises was in control of the appellant accused. If the appellant was not in control of the premises, he should not have appeared before the Officers on 20.8.1992 when a public notice-cum-seizure order at Exh.50 was affixed on the main door of the said premises calling upon the person in possession to present himself before the Officers. Said voluntary presentation of the appellant-accused is indicative of the possession of the premises and his connection with the muddamal. Therefore, there is no doubt that on the day of raid, the premises was in control of the appellant. Apart from that, he could not produce any license, pass or permit to store or dealing with such large quantity of kerosene. In view of the above, this Court is of the opinion that the trial court was completely justified in convicting the accused of the charges leveled against him. The said findings are absolutely just and proper and no illegality or infirmity has been committed by it in the same warranting interference by this Court in this appeal and therefore, the appeal deserves to be dismissed. 8. In view of the above, the appeal stands dismissed. The judgment and order of conviction and sentence dated 22.7.1999 passed by the learned Special Judge, Court No. 15, Ahmedabad City, in Special Criminal Case No. 115 of 1994 is hereby confirmed. The accused is reported to be on bail and hence, his bail bond shall stand cancelled. He is directed to surrender before the jail authorities within twelve weeks from today to undergo the remaining period of sentence and if he is not reporting to jail authorities within the stipulated period, non-bailable warrant is ordered to be issued against the accused till he is arrested by the concerned police officials. Yadi to this effect be forwarded to the concerned trial court as well as the concerned Police Station. Record and proceedings shall be sent back forthwith to the trial court.