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2017 DIGILAW 649 (KAR)

Pushparaj v. State of Karnataka

2017-03-24

B.A.PATIL

body2017
ORDER : B. A. Patil, J. The present revision petition has been filed by the accused-petitioners assailing by the judgment of conviction and sentence in Criminal Appeal No.45/2010 dated 30.11.2010 passed by IV Additional Sessions Judge, Gulbarga, where under the judgment of conviction and sentence passed by I Additional JMFC Gulbarga in CC No. 959/2007 dated 18.06.2010 has been confirmed under sections 3(f) and 7 of Essential Commodities Act. 2. The gist of the allegation as per the complaint are that on 23.01.2006 respondent police received credible information about illegal possession and storage of gaslet (kerosene) near Gandorinala. Immediately along with panch witnesses and his staff made a raid. They found accused Nos. 1 and 2 were present there possessing four cans containing 50 liters of each kerosene and two plastic cans containing 20 liters of kerosene. On enquiry the accused persons did not produce any permit or a licence for having held the said kerosene in their possession. It is further alleged that they were selling the said kerosene at the rate of Rs.25/- per liter. The same was seized by drawing a mahazar and accused persons were also apprehended. On the basis of police report, a case has been registered in Cr.No.8/2006. After investigation the charge-sheet came to be filed. 3. The Trial Court after securing the accused persons after following the procedure laid down u/S. 207 of Cr.P.C. and thereafter hearing, the plea was recorded. Since accused denied and claimed to be tried, as such trial was fixed. 4. The main contention of the learned counsel for the petitioners is that both the Courts below have not properly appreciated the evidence on record and have not considered admissions, contradictions and omissions occurred in the cross-examination. He would further contend that the prosecution has not examined the investigating officer, which will be fatal to the case of prosecution. He would also further contend that the seized articles have not been produced before the Court and have not got marked. He would also further contend that the prerequisites of the Essential Commodities Act has not been proved. He would further contend that the prosecution has not examined the investigating officer, which will be fatal to the case of prosecution. He would also further contend that the seized articles have not been produced before the Court and have not got marked. He would also further contend that the prerequisites of the Essential Commodities Act has not been proved. He would further contend that it is necessary for the prosecution to place on record the order which according to them was the foundation for taking action against the accused/petitioners, failing which the entire proceedings is going to vitiating and as such the order of the Trial Court is not sustainable in law. In order to substantiate his contention he relied upon a decision in the case of Prakash Babu Raghuvamshi v. State of Madhya Pradesh reported in 2004(4) KCCR S.N. 438. Further he would contend that the plea which has been recorded does not disclose what order has been violated by the accused/petitioners. As such, the entire proceedings is going to vitiate. On these grounds, he prayed for allowing the petition and thereby to set aside the impugned judgment and conviction passed by both the Courts. 5. Per contra learned Government Pleader would contend by supporting the impugned judgment and order of conviction of both the Courts. He would also further contend that the trial Court after considering the evidence on record and after proper appreciation, has come to a right conclusion and has rightly imposed the sentence. He would further contend that FSL report Ex.P-3 and the evidence of PWs 1 and 4 prove the seizure of 240 liters of kerosene from the possession of the accused. When once the said fact is proved, the Court can presume that the accused persons were in illegal possession of the said kerosene, unless it is rebutted by cogent and acceptable evidence. He would also further contend that the prosecution has proved the guilt of the accused beyond all reasonable doubt, the defence of the accused does not probabalise in any manner. On these grounds he prays for dismissal of petition. 6. On perusal of records, PW 1 the complainant has deposed by reiterating the contents of the complaint that he made a raid and seized MOs 1 to 4 and also apprehended the accused persons on the spot. On these grounds he prays for dismissal of petition. 6. On perusal of records, PW 1 the complainant has deposed by reiterating the contents of the complaint that he made a raid and seized MOs 1 to 4 and also apprehended the accused persons on the spot. Even though the said witness was cross-examined at length, nothing has been elicited to disbelieve the evidence of such witness. PWs. 2 and 3 are the seizure mahazar panchas, they have not supported the case of prosecution and they have been treated as hostile. PW 4 is the ASI who accompanied PW 1 at the time of raid, he has also reiterated the evidence of PW 1 and even during the course of cross-examination nothing has been elicited so as to disbelieve his evidence. 7. I have gone through the evidence cautiously and carefully. Though no eye-witnesses have been examined before the Court, but the evidence of PWs 1 and 4 appears to be trustworthy and reliable. Even there is corroboration in their evidence to the contents of complaint Ex.P-1. Merely because PWs 1 and 4 are the police officials, that their evidence cannot be brushed aside and the Court cannot start with presumption that their evidence and record are untrustworthy, but the preposition of law is that there is a presumption that the act done by the police in the ordinary course of business is trustworthy and reliable. This preposition of law has been also upheld in case of Borayya alias Pujari Borayya v. State of Thalak Police Challikere taluka, reported in ILR 2004 Karnataka 2531 : (2004 AIR Kant R 247). Keeping in view the above preposition of the law, on careful perusal of evidence of PWs 1 and 4, their evidence cannot be discarded and no such material is also there to disbelieve such evidence. 8. Be that as it may. By going through the records, the plea was came to be recorded by the trial Court on 29.01.2009. On careful consideration of the said plea there is no specific mention about the order which according to section 3 has been violated by the accused persons. Though it contains that the accused persons have committed the offences under sections 3 and 7 of Essential Commodities Act. On perusal of the records it indicates that there is mention about the order which has been violated by the accused petitioners. Though it contains that the accused persons have committed the offences under sections 3 and 7 of Essential Commodities Act. On perusal of the records it indicates that there is mention about the order which has been violated by the accused petitioners. In the records it is mentioned that the accused have committed the offences punishable under sections 3 and 7 of E.C. Act and also under Ka.L. Order 1986. K.K. December 1969 and the Distribution Control Order 1992 and section 406 r/w 34 of IPC. When there is a specific mention about the violation of the order which was the foundation for taking action against the accused/petitioners, but the Trial Court failed to mention the same while recording the plea. According to section 2(c) of Essential Commodities Act notify the order means, an order notified in the official gazette and it also includes direction issued there under. By going through the above order, there is a direction. Without proper plea if the trial has been held it is going to vitiate the entire proceedings. Because of the reason that the accused will not be having any opportunity to know actually what is violation which has been committed by him and he will not be in a position to properly defend himself in the absence of the gist of the order in the plea. It will also affect the principles of natural justice and audi alteram partem i.e., no man should be condemned unheard. This aspect has also not been considered and appreciated by both the Courts. 9. I am aware of the fact that the case is of the year 2006 and already more than 11 years have been lapsed. But when material is there to show that there is violation of the order under the Essential Commodities Act and the same has not been put into the plea, then under such circumstances in order to give an opportunity to both prosecution as well as the accused, the matter requires to be remitted back to the trial court. Be that as it may. It is also the specific contention of the petitioners that the Investigating Officer has not been examined before the trial Court. Be that as it may. It is also the specific contention of the petitioners that the Investigating Officer has not been examined before the trial Court. No doubt the non-examination of the Investigating Officer is not fatal to the case, but anyhow the matter requires to be remitted back, then under such circumstances, the Court below can consider this aspect and after giving full opportunity to both the parties after recording the proper plea, the case may be disposed off in accordance with law. Keeping in view of the above aspects I proceed to pass the following: ORDER 1. The Revision petition is allowed. The judgment dated 30.11.2010 passed in Criminal Appeal No. 45/2010 by the learned IV Additional Sessions Judge, Gulbarga and the judgment and sentence dated 18.06.2010 passed in C.C.No.959/2007 by the learned I Additional JMFC, Gulbarga are hereby set aside. 2. The matter is remitted back to trial Court with a direction that a fresh plea has to be recorded by properly mentioning all the ingredients of the offence ordering and thereafter, after giving full opportunity to both prosecution as well as accused, the case may be disposed off expeditiously within outer limit of four months from the date of receipt of the records. Since the parties are before this Court, they have to appear before the trial Court on 18.04.2017 at 11.00 a.m. without further notice. 3. Registry is directed to send the records and the copy of this order to trial Court forthwith.