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2023 DIGILAW 418 (UTT)

Deepak Gupta v. State of Uttarakhand

2023-07-24

PANKAJ PUROHIT

body2023
JUDGMENT : This criminal revision is directed against the judgment and order dated 05.07.2013, passed by learned Sessions Judge, Champawat in Criminal Appeal No.22 of 2012, Deepak Gupta vs. State of Uttarakhand, whereby the learned Appellate Court affirmed the judgment and order dated 10.10.2012 passed by learned Chief Judicial Magistrate, Champawat in Criminal Case No.540 of 2009, State vs. Deepak Gupta, convicting the revisionist-accused under Section 3/7 of the Essential Commodities Act, 1955 and sentencing him with an imprisonment of two years’ simple imprisonment with a fine of Rs.5,000/- with default stipulation of four months’ additional imprisonment. It was further directed that the period spent by the revisionist-accused in jail in connection with the case shall be set-off. 2. The case of the prosecution starts from the raid allegedly laid on 17.06.2009 along with other shops and establishments in the go-down of revisionist-Deepak Gupta, owner of Deepak Khad Bhandar situated in front of his establishment at Banbasa near N.H.P.C. Road. According to the prosecution, in the said raid, the following fertilizers and seeds were found in the go-down of revisionist-accused:- (i) D.A.P. 18: 46, 118 bag (50 Kg.) (ii) N.P.K. 20 : 20 : 0 : 13, 17 bag (50 Kg.) (iii) N.P.K. 12 : 32 : 16, 14 bag (50 Kg.) (iv) Tarai Gold 15 bag (5 Kg.) (v) Aquim 03 in number (12 Kg.) (vi) Open fertilizers/seeds 14 in number (02 quintal). 3. As per the recovery memo, the revisionist could not produce the documents, so called for by the raiding party consequently, the shop was sealed. The first information report (Ext.Ka.1) was lodged in Police Station Banbasa, District Champawat with the allegation that from the establishment of the revisionist-accused “Deepak Khad Bhandar”, illegal fertilizers were found, which was an offence under Sections 3/7 of the Essential Commodities Act, 1955, Fertilizer (Control) Order 1985, and Seeds Act, 1966. 4. On the basis of the aforesaid first information report, Case Crime No.968 of 2009 under Section 3/7 of the Essential Commodities Act, 1955, State vs. Deepak Gupta was registered in the Police Station Banbasa, District Champawat. A sanction under section 11 of the Essential Commodities Act, 1955 (UP amendment vide UP Act No.9 of 1974 w.e.f. 24.04.1974) was sought by the prosecution against the revisionist-accused. The District Magistrate, Champawat vide order dated 20.06.2009 (Ext.Ka-2) granted the sanction. The charge-sheet was submitted after investigation. A sanction under section 11 of the Essential Commodities Act, 1955 (UP amendment vide UP Act No.9 of 1974 w.e.f. 24.04.1974) was sought by the prosecution against the revisionist-accused. The District Magistrate, Champawat vide order dated 20.06.2009 (Ext.Ka-2) granted the sanction. The charge-sheet was submitted after investigation. The cognizance was taken by learned Magistrate and Criminal Case No.540 of 2009, State vs. Deepak Gupta was registered in the court of Chief Judicial Magistrate, Champawat. After supplying the prosecution documents under Section 207 of Cr.P.C., the trial proceeded. The charges were framed against the revisionist-accused under Section 3/7 of the Essential Commodities Act, 1955 on 13.01.2010 by learned Chief Judicial Magistrate; the revisionist pleaded not guilty and claimed to be tried as per law. 5. The prosecution in order to prove its case examined 13 witnesses and the documentary evidence were also adduced and proved by the prosecution witnesses and exhibited during the trial. 6. The learned Chief Judicial Magistrate after prosecution evidence, recorded the statement of accused under Section 313 Cr.P.C., in which, he came up with a case of complete denial and expressed his unwillingness to give any evidence in defence. The learned Chief Judicial Magistrate by reason of the judgment and order dated 10.10.2012 convicted the revisionist-accused as stated above in para 1 of this judgment. 7. Feeling aggrieved by the aforesaid conviction and sentence, revisionist took this matter in the appeal before learned Sessions Judge, Champawat which was registered as Criminal Appeal No.22 of 2012, Deepak Gupta vs. State of Uttarakhand. 8. In appeal, the accused mainly challenged the recovery memo (Ext.Ka-3), inter alia, contending that the recovery memo was prepared only to falsely implicate him; in the recovery memo, there is cutting and use of different ink; the date mentioned in the recovery memo is of the year 2008, whereas the recovery memo, as per the case of the prosecution, was prepared on 18.06.2009; the recovery memo neither bears the signature of any prosecution witness nor that of the revisionist-accused; and of PW4-Kunwar Singh Mehar, who allegedly proved the recovery memo. 9. It was further submitted on behalf of the revisionist-accused in appeal that there were various contradictions in the prosecution evidence vis-a-vis the case of the prosecution. The conviction was also challenged on the ground that there was non-application of mind by learned Magistrate while convicting the revisionist-accused. 9. It was further submitted on behalf of the revisionist-accused in appeal that there were various contradictions in the prosecution evidence vis-a-vis the case of the prosecution. The conviction was also challenged on the ground that there was non-application of mind by learned Magistrate while convicting the revisionist-accused. The submissions made on behalf of the revisionist did not find favour with the Appellate Court and accordingly, the appeal was dismissed by learned Sessions Judge, Champawat vide order dated 05.07.2013 affirming the judgment and order of conviction. 10. Heard learned counsel for the parties and perused the record of the case. 11. At the outset, it is submitted that this Court is sitting in the revisional jurisdiction which is very limited and the appreciation of the evidence cannot be done by this Court while exercising such jurisdiction. However, it has time and again been held by the Apex Court that the High Court, while sitting in revisional jurisdiction, can look into the impugned judgment and order where the findings recorded by learned trial court as well as appellate court are perverse. Perversity has been defined many times which, in a simple way, can be explained if (a) the evidence available on record has been ignored, (b) if the evidence available on record has been misread and (c) which resulted into miscarriage of justice to the party. In case of such perversities, being noticed, this Court can very well step in to do justice, with the parties by interfering into the judgments and orders passed by the trial court as well as the appellate court. 12. Learned counsel for the revisionist also attacks the recovery memo, which was the basis of launching of the prosecution against the revisionist under the provisions of the Essential Commodities Act besides violating the provisions of the Fertilizer (Control) Order, 1985. Attention of this Court is drawn to the recovery memo (Ext.Ka-3) and it has been argued that the recovery memo was prepared on 17.06.2009, when the raid was laid by the District Agriculture Officer in the establishment of the revisionist. 13. Attention of this Court is drawn to the recovery memo (Ext.Ka-3) and it has been argued that the recovery memo was prepared on 17.06.2009, when the raid was laid by the District Agriculture Officer in the establishment of the revisionist. 13. It is further submitted by learned counsel for the revisionist that from the record, it is clear that the raid was laid on 17.06.2009 at about 12:30 noon to 10:00 p.m., but the PW1 Shri Gopal Singh, S/o Jasram, a star witness of the prosecution, while deposing before the trial court, stated that the raid was laid on 17.06.2009 wherein illegal fertilizers and seeds were found from the establishment “Deepak Khad Bhandar” and Go-down and the recovery memo was prepared by him on 18.06.2009 at 04:45 p.m. 14. He further took this Court to the cross-examination of the witness (PW1) to suggest that there were material contradictions in the evidence of PW1. The evidence of PW12 was also referred to substantiate his arguments. PW12-Ramesh Singh Bora, the Senior Assistant of Chief Agriculture Officer, deposed that the recovery memo was prepared during the night of 17.06.2009 before him in a hotel in Tanakpur where they were staying. This witness PW12 further deposed that the recovery memo was written at 12 midnight in the hotel, where no persons other than PW1-Gopal Singh, PW3-Laxman Bohra, PW8-Harinandan Gahtorhi, PW10- D.N. Yadav and this witness (PW12) were present. The attention of this Court was also drawn to the evidence of PW7-Virendra Lal, who was one of the members of the raid team, and posted as Patwari Banbasa, District Champawat. He also deposed that the recovery memo was prepared on 17.06.2009. He was the signatory of the recovery memo and proved his signature thereon. However, he expressed his inability to say as to what was found/recovered from the shop and go-down of the revisionist. 15. Apart from challenging the veracity of the recovery memo, this Court’s attention is further drawn to the sanction for prosecution (Ext.Ka-2) awarded by the District Magistrate, Champawat which was a sine qua non, and it was argued that sanction was also defective since the same does not bear the seal of District Magistrate, Champawat; even the name and designation of post was not mentioned in the sanction letter. On the strength of these two documents, it is submitted by learned counsel for the revisionist that the prosecution completely failed to prove its case beyond all reasonable doubt against the revisionist-accused. 16. Per contra, learned Brief Holder for the State submitted that there is no illegality in the raid conducted by the officers of the Agriculture Department, and the recovery memo and sanction letter are legal and there is no defect in these two prosecution documents. 17. So far as the argument of learned counsel for the revisionist regarding the date of recovery memo is concerned, it is submitted by learned Brief Holder that the recovery memo itself suggests that the raid proceedings continued from 17.06.2009 to 18.06.2009 and, therefore, even in the statement of PW1, if it has come that the recovery memo was prepared on 18.06.2009, it hardly makes any difference to the case of the prosecution. But from the recovery memo (Ext.Ka-3) it is shown that raid was conducted 12:30 p.m. to 10:00 p.m. Thus, the argument of the State Counsel does not commensurate with the record. 18. In reply to next argument regarding illegality in sanction letter, learned State Counsel contended that mere absence of seal of the office of District Magistrate does not cause much damage to the prosecution story. However, he admitted that the absence of name and designation of the District Magistrate would definitely make it highly doubtful as to whose signature was available on the sanction letter. 19. From a perusal of the record, it appears that the trial Court failed to appreciate the evidence of prosecution in right perspective and ignored the part of evidence, which was available on record favouring the revisionist. A bare perusal of the recovery memo makes it abundantly clear that the prosecution of the revisionist-accused was made in a very casual and cursory manner. The public witnesses-Sanjeev Kumar Kashyap and Ram Kumar who put their signatures in the recovery memo were witnesses of the recovery, had neither been made the witness in the charge-sheet nor was any attempt made to produce them before the witness box to prove the recovery memo. The evidence of prosecution witnesses are very shaky. So far as the date and time of the recovery memo is concerned, the statements of PW1, PW7 and PW12 all gave a different story regarding the recovery memo. 20. The evidence of prosecution witnesses are very shaky. So far as the date and time of the recovery memo is concerned, the statements of PW1, PW7 and PW12 all gave a different story regarding the recovery memo. 20. Even the prosecution miserably failed to prove conclusively as to on which date, the recovery memo was prepared either on 17.06.2009 or on 18.06.2009. Nail in the coffin is the statement of PW12-Ramesh Singh Bora, member of raid team, who made a categorical statement in his evidence that the recovery memo was prepared in hotel Tanakpur where the team was staying, at about 12 midnight to 01:00 a.m. on 18.06.2009. From this evidence, it is explicitly clear that the recovery memo was not prepared at the scene of alleged crime, which was the requirement of law and the same cannot be believed for inflicting conviction upon the revisionist. 21. The sanction letter also reflects that the sanction for prosecution was not given with application of mind and it appears that the sanction which was a sine qua non was given in a very cursory manner. I find force in the arguments submitted by learned counsel for the revisionist that the sanction letter even did not bear the seal of the office of District Magistrate nor did it mention the name or the designation of the District Magistrate, and in this situation, it cannot be said that the sanction was granted by the District Magistrate as per law. It was the duty of the prosecution, in such a situation, to produce a witness who could identify the signature of the District Magistrate and who had seen the writing of the District Magistrate. But the PW1 who has exhibited the sanction letter (Ext.Ka-2) only said ^^bl ij esjh eqgj o gLrk{kj vafdr gS rFkk Mh-,e- ds gLrk{kj gSA^^ This is not such a statement which would suffice that the signature of the District Magistrate was proved. 22. In this view of the matter, I find substantial force in the argument submitted by learned counsel for the revisionist, the revision is allowed. Resultantly, the impugned judgments and orders dated 10.10.2012 and 05.07.2013 passed by the trial court as well as the appellate court are hereby set-aside. The conviction and sentence awarded to the revisionist is also hereby set-aside. Revisionist is on bail. His bail bonds are cancelled. Resultantly, the impugned judgments and orders dated 10.10.2012 and 05.07.2013 passed by the trial court as well as the appellate court are hereby set-aside. The conviction and sentence awarded to the revisionist is also hereby set-aside. Revisionist is on bail. His bail bonds are cancelled. He needs not to surrender unless required in any other case. 23. Let the lower court record be sent back.