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Madhya Pradesh High Court · body

2017 DIGILAW 112 (MP)

Munnalal Prajapati v. State of M. P.

2017-01-19

G.S.AHLUWALIA

body2017
ORDER : Shri Sanjay Bahirani, counsel for the applicant. Shri Girdhari Singh Chauhan, Public Prosecutor for the respondent/State. 2. This revision has been filed under sections 397 and 401 of Criminal Procedure Code against the judgment dated 28-6-2011 passed by XIIIth Additional Sessions Judge (Fast Track Court), Gwalior in Criminal Appeal No. 295/2011 by which the judgment dated 10-5-2011 passed by the JMFC, Gwalior in Criminal Case No. 8986/2008 has been affirmed. 3. By judgment dated 10-5-2011, the applicant has been convicted under sections 3, 7(1)(a)(ii) of Essential Commodities Act, 1955 for violating provisions of Clause 3(1)(c) of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. 4. The necessary facts for the disposal of this revision are that a written complaint was made on 19-5-2008 by one Ramesh Saxena to the effect that the applicant is running a Gajak manufacturing factory and is using LPG cylinders which are meant for domestic purposes. The Assistant Supply Officer was sent along with party to verify the complaint. On inspection, it was found that the applicant was using LPG cylinder, which was meant for domestic purposes, for roasting ground-nuts. Two empty LPG cylinders and one filled LPG cylinder were found. Punchnama was prepared on 19-5-2008. Two empty and one filled LPG cylinders were seized which were handed over to the Bharat Gas Agency. On the basis of Punchnama, FIR was lodged. The police, after completing the investigation, filed the charge-sheet. 5. The trial Court, by order dated 17-11-2008, framed the charges under sections 3, 7 of Essential Commodities Act. 6. The appellant abjured his guilt and pleaded not guilty. 7. The prosecution, in order to prove its case, examined Ramesh Saxena (PW/1), Sonu Shrivastava (PW/2), Rakesh Dubey (PW/3), S. S. Tomar (PW/4), Bhagat Singh (PW/5), R. M. Shrivastava (PW/6) and Satyaprakash Tiwari (PW/7). 8. The applicant did not examine anybody in his defence. 9. Ramesh Saxena (PW/1) has stated that the applicant manufactures Chikki by using LPG cylinder meant for domestic purposes and he had made a complaint (Exhibit P/1) that from the factory which is run by the applicant, foul smell spreads. This witness has further stated that he had seen the different agencies supplying him LPG gas cylinders which are meant for domestic purposes. 10. Sonu Shrivastava (PW/2), who is the seizure witness, has not supported the prosecution case and has turned hostile. This witness has further stated that he had seen the different agencies supplying him LPG gas cylinders which are meant for domestic purposes. 10. Sonu Shrivastava (PW/2), who is the seizure witness, has not supported the prosecution case and has turned hostile. He has simply stated that his signatures on blank papers were obtained. 11. Rakesh Dubey (PW/3) has also not supported the prosecution case, although he admitted his signatures on punchnama (Exihibit-P/2), Seizure Memo(Exhibit-P/3) and supurdagi nama (ExhibitP/4). 12. S. S. Tomar (PW/4) has stated that he had received the case diary for investigation and he had recorded the statements of Food Inspector Anil Dubey, Sonu Shrivastava, Ramesh Chandra Saxena and Satyaprakash. On 23-7-2008, he had arrested the applicant. 13. Bhagat Singh (PW/5) has stated that on the basis of the written complaint, sent from the office of Collector, Gwalior, he had recorded the FIR. 14. Rasik Mohan Shrivastava (PW/6) has stated that he along with S. P. Tiwari, Assistant Supply Officer, had gone to the house of the applicant at the time of inspection. The applicant was roasting ground-nuts and was using LPG cylinder of Bharat Petroleum Company which was meant for domestic purposes. Thus, the applicant was using the domestic LPG cylinder for the commercial purpose. The applicant could not produce any license or relevant documents and thus, the applicant had violated the provisions of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. He has further stated that two empty and one filled LPG cylinders were seized from the possession of the applicant which were subsequently handed over on supurdagi to one Anil Sharma who was working in Raja Gas Agency. Seizure Memo is Annexure P/3. Supurdagi memo is Annexure P/4. Thereafter, he sent an enquiry report which is Exhibit-P/11. A letter was received by him from the office of Collector, Gwalior by which he was directed to lodge a FIR against the applicant which is Exhibit-P/9 and accordingly, FIR was lodged by him which is Exhibit-P/10. 15. This witness was cross-examined in detail but nothing could be elicited from the evidence of this witness to make his evidence unreliable. 16. Satyaprakash Tiwari (PW/7) has also stated that when the house of the applicant was inspected, it was found that the applicant was using LPG cylinders which are meant for domestic purposes. 15. This witness was cross-examined in detail but nothing could be elicited from the evidence of this witness to make his evidence unreliable. 16. Satyaprakash Tiwari (PW/7) has also stated that when the house of the applicant was inspected, it was found that the applicant was using LPG cylinders which are meant for domestic purposes. As the provisions of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 were violated, therefore, the cylinders were seized by Shri Rasik Mohan Shrivastava (PW/6) and punchnama (Exhibit-P/2) was prepared which bears his signatures. 17. On consideration of the entire evidence which has come on record, it appears that independent witnesses Sonu Shrivastava (PW/2) and Rakesh Dubey (PW/3) have not supported the prosecution case and were declared hostile. 18. It was submitted by the counsel for the applicant that since the independent witnesses have not supported the prosecution case, therefore, the applicant should have been acquitted. 19. In the considered opinion of this Court, the contention raised by the counsel for the applicant cannot be accepted. The counsel for the applicant could not point out as to why Rasik Mohan Shrivastava (PW/6) and Satyaprakash (PW/7) have stated against the applicant. These are the independent witnesses who had carried out an inspection on the instructions of the Collector, Gwalior and had found that the applicant was roasting ground-nuts by using domestic LPG gas cylinder. Even otherwise, according to the prosecution case, three gas cylinders were seized from the possession of the applicant. 20. The applicant had examined himself as his defence witness. 21. In the cross-examination, he admitted that the house, from which the three gas cylinders were seized, belongs to him. He further stated that he was having gas connection and the documents pertaining to the gas connection is Exhibit-D/2(c). The applicant further admitted that he sells groundnuts after roasting the same. He further admitted that he also sells ground-nuts chikki. 22. Thus, in view of the evidence of the applicant himself, it is clear that the factum of seizure of three gas cylinders has not been denied/disputed by the applicant also. He has further admitted that he roasts ground-nuts in the house itself. He further admitted that the roasted ground-nuts are sold by him in the open market. Thus, the use of domestic LPG cylinders for commercial purpose is proved beyond reasonable doubt. 23. He has further admitted that he roasts ground-nuts in the house itself. He further admitted that the roasted ground-nuts are sold by him in the open market. Thus, the use of domestic LPG cylinders for commercial purpose is proved beyond reasonable doubt. 23. Further from Ex.D/2(c), it is clear that applicant was having one Double Bottle Connection but three cylinders were seized which clearly means that he was in possession of an additional LPG cylinder for which he did not have any valid connection. This also clearly shows that he was unauthorizedly taking the LPG cylinders. 24. Accordingly, this Court is of the view that the trial Court did not commit any mistake by convicting the applicant for offences punishable under sections 3,7 of Essential Commodities Act. 25. So far as the question of sentence is concerned, the counsel for the applicant relied on the judgment passed in the case of Harivallabha and anr. vs. State of M. P. reported in (2005) 10 SCC 330 and submitted that as the applicant has been awarded three months' Rigorous Imprisonment with fine of Rs. 1,000/- and since he is the first offender having been convicted under sections 3, 7 of Essential Commodities Act, therefore, he can be released on probation of good conduct under section 360 of Criminal Procedure Code. 26. The Supreme Court in the case of Harivallabha (supra) has held as under :— “3. Learned counsel appearing on behalf of the appellants submitted that the appellants are first offenders and in the facts and circumstances of the case they should have been dealt with under the provisions of section 360 of the Code of Criminal Procedure, 1973 (for short “the Code”) and the High Court reduced the sentence of imprisonment from three years to three months without recording any reasons, as required under section 361 of the Code, which lays down that for special reasons to be recorded, a Court can refuse to release a person on probation of good conduct under section 360 of the Code. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of section 360 of the Code.” 27. Considered the submissions made by the counsel for the applicant. 28. There is nothing on record to show that the applicant is not the first offender. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of section 360 of the Code.” 27. Considered the submissions made by the counsel for the applicant. 28. There is nothing on record to show that the applicant is not the first offender. It is also apparent from the arrest memo dated 23-7-2008 that the applicant was aged about 51 years at that time. Eight and half years have passed thereafter. Thus, it can be safely inferred that now the applicant must be aged about 59 to 60 years. 29. Under these circumstances, it would be appropriate to extend the benefit of section 360 of Criminal Procedure Code as no previous conviction has been proved against the applicant and considering the age of the applicant and the manner in which the offence is alleged to have been committed, it would be in the interest of justice to release the applicant on probation of good conduct. 30. Accordingly, the applicant is directed to furnish a personal bond in the sum of Rs. 50,000/- (Fifty Thousand Rupees Only) with two sureties in the like amount to the satisfaction of the trial Court to appear before the trial Court and receive sentence when called upon during the next six months and in the meanwhile, he shall keep the peace and good behavior. 31. With the aforesaid directions, the criminal revision is finally disposed off. 32. Let a copy of this order be send to the trial Court for necessary compliance.