RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.285 OF 2001 (OLD NO.675 OF 1993) 1. Nem Chand Sagar S/o Udai Ram 2. Pothe Ram S/o Udai Ram Both R/o Khunsara, P.S. Sitarganj ……… Appellants Versus The State ……… Respondent Dated: April 10, 2009 Sri S.K. Aggarwal, Sr. Adv. assisted by Km. Krishi Shukla, Adv. for the appellants Sri M.A. Khan, learned Brief Holder for the State/Respondent HON. DHARAM VEER, J. This appeal, preferred under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.04.1993 passed by Special Judge (E.C. Act), Nainital in Special Trial No.4 of 1988, State through Khandsari Inspector Vs. Nem Chandra Sagar & Pothi Ram, whereby the appellants-accused have been convicted under Section 7(1)(a)(ii) r/w Section 3(2)(a) of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) and each of them was sentenced to undergo three months’ simple imprisonment with fine of Rs.2,000/- each. In case of default of payment of fine, it was directed that the defaulter or defaulters shall undergo six months’ further simple imprisonment. 2. I have heard Sri S.K. Aggarwal, learned senior advocate assisted by Km. Krishi Shukla, advocate for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 2 3. In brief the prosecution case is that P.W.4 K.P. Srivastava, Khandsari Inspector filed a complaint against the appellants-accused Nem Chand and Pothi Ram with the permission of the then Collector/District Magistrate, Nainital with the allegations that the inspection of Khandsari Unit or Crusher of Firm Sagar Sugar Industries situated in Village Khunsara, Post Nakatpura of P.S. Sitarganj was done during the crushing season 1986-87 on different dates by various officers of Khandari Department and it was found that the proprietor or Licence Holder of aforesaid Khandsari Unit were producing Gur by using machinery different than that mentioned in their licence. As such they have contravened Condition No.3 of the licence granted to them under U.P. Khandsari Sugar Manufacturers Licensing Order, 1967 and thus they have committed an offence punishable under Section 3/7 of the Act. Thereafter, P.W.4 K.P. Srivastava obtained the sanction for prosecuting the appellants/accused. The sanction granted by R.K. Sharma, District Magistrate, Nainital is Ex.Ka.3. Inspection reports/notes prepared by the Inspection Team are Exs.Ka-1, Ka-2 and Ka-5 to Ka-17. Thereafter, the complaint was filed by P.W.4 K.P. Srivastava in the court on 29.3.1988, i.e. Ex.Ka-4. 4. Thereafter, on 25.1.1990, learned Special Judge, Nainital framed the charge against the appellants-accused Nem Chand and Pothi Ram u/s 3/7 of the Act. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Harishankar Prasad, Assistant Sugar Commissioner, P.W.2 Prithvi Singh, Khandsari Inspector, P.W.3 R.S. Pathak, Khandsari Officer and P.W.4 K.P. Srivastava, Khandsari Inspector. 3 6. Thereafter, the statements of appellants-accused were recorded u/s 313 of Cr.P.C. and the oral and documentary evidence was put to each of them in question form. 7. After hearing counsel for the parties and appreciating the material on record, learned Special Judge (E.C. Act), Nainital vide judgment and order dated 27.4.1993 convicted and sentenced the appellants-accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the present appeal has been preferred. 8. To prove its case the prosecution has examined P.W.1 Harishankar Prasad who has stated that from July, 1986 to May, 1989 he was posted as Assistant Sugar Inspector, Haldwani. He inspected the Khandsari Unit of appellants-accused Nem Chandra Sagar and Pothi Ram Sagar on 6.1.1987. He was accompanied by R.S. Pathak, Khandsari Officer (P.W.3) and Prithvi Singh, Khandsari Inspector (P.W.2). For the year 1986-87, appellants- accused were granted licence on 30.12.1986 to run a power crusher having size 28 x 35.5. cms, three roller hydraulic non-sulphitation along with 7-boiler of Meerut type. However, on the date of inspection at the spot, a power crusher 28 x 35.5. cm, three roller non-hydraulic non- sulphitation along with 4 boiler of Meerut type was found being used. Likewise on 6.2.1987, he along with R.S. Pathak, Khandsari Officer and Prithvi Singh, Khandsari Inspector conducted the inspection of the said unit in the presence of appellant-accused Pothi Ram and at that time also, a power crusher having size 28 x 35.5. cm, three roller non-hydraulic non-sulphitation along with 4 boilers of Meerut type were found installed and being used. With regard to the aforesaid inspection dated 6.1.1987 and 6.2.1987, inspection notes Ex.Ka-1 and Ka-2 respectively were prepared and appellant-accused Pothi Ram also 4 signed on those notes. He also stated that for any change in unit, prior sanction of Licensing Authority is required. He also proved the sanction obtained from D.M. Sri R.K. Sharma for prosecuting the appellants-accused, i.e. Ex.Ka.3. He also proved the charge sheet submitted by P.W.4 K.P. Srivastava, the then Khandsari Inspector, i.e. Ex.Ka-4. 9. P.W.2 is Prithvi Singh, Khandsari Inspector who has stated that on 15.1.1987, 24.1.1987, 21.2.1987, 29.3.1987, 16.4.1987, 16.5.1987, 22.5.1987, 7.6.1987 and 17.10.1986, he inspected the unit of appellants-accused and during the aforesaid period, he was posted as Khandsari Inspector, Rudrapur. In the inspection note dated 17.10.1986, signatures of appellant-accused Nem Chand are there. On 15.1.1987, at the time of inspection, 59.50 quintals Gur was mentioned in the record, however 200 quintals of sugarcane and 60 quintals of Gur was found there. On 24.1.1987, 200 quintals of sugarcane was found. On 21.2.1987 at the time of inspection, 30 quintals sugarcane was found. On 29.3.1987, 100 quintals of sugarcane was found. On 16.5.1987, 30 quintals sugarcane and 4 quintals Gur was found at the time of inspection. He also proved the inspection notes prepared by him at the time of inspection, which are Exts.Ka-5 to Ka.13. He also stated that on 15.1.1987, 16.4.1987, 16.5.1987 and 22.5.1987, he conducted the inspection in the presence of appellant-accused Nem Chand and he also got the signatures of appellant-accused Nem Chand. In the inspection notes dated 21.2.1987 and 29.3.1987, appellant-accused Pothi Ram had signed and he also proved the same. On 6.1.1987 and 6.2.1987, he along with Hari Shankar Prasad, Assistant Sugar Commissioner and R.S. Pathak, Khandsari Officer inspected the Khandsari Unit of appellants-accused and he also signed on the 5 inspection notes prepared on those dates, i.e. Exs.Ka-1 and Ka-2 respectively. On 6.1.1987 at the time of inspection, 60 quintals of juice in the boilers and 200 quintals of sugarcane was found. On 6.2.1987 at the time of inspection, 50 quintals of sugarcane was found. On 6.4.1987 at the time of inspection, 20 quintals of sugarcane was found. He also proved the inspection note Ex.Ka-14. On 10.3.1987 and 8.11.1986 at the time of inspection, he was accompanying R.S. Pathak. On 10.3.1987, 40 quintals of sugarcane was found on the spot and inspection note Ex.Ka-15 was prepared. He also proved the inspection note dated 8.11.1986, i.e. Ex.Ka-16. Appellants-accused were granted licence to run a power crusher 28 x 35.5. cm, three rollers hydraulic non-sulphitation, 7 boiler of Meerut type. However, the appellants/accused were using power crusher 28 x 35.5 cm, three rollers non-hydraulic, non- sulphitation, 4-boiler of Meerut type, and thus they have contravened Condition No.3 of the licence, thus thereby committed offence punishable under the aforesaid Act. He further stated that before prior sanction, no change could be made in the conditions mentioned in the licence of Khandsari Unit. 10. P.W.3 is R.S. Pathak, Khandsari Officer who has stated that in the season 1986-87, he was posted as Khandsari Officer, Haldwani Circle. The inspection of Khandsari Unit of appellants-accused was conducted by him on 8.11.1986, 10.3.1987, 6.4.1987 and the inspection reports are Exs.Ka-14 to Ka-16. Report with regard to the inspection made on 27.5.1987 is Ex.Ka-17. At the time of inspection, a power crusher having size 28 x 35.5. cm, three rollers, non-hydraulic non-suplhitation was there and at the time of inspection, aforesaid power crusher and boilers were found having been used. However, the licence 6 was granted to run a power crusher having size 28 x 35.5. cm., three rollers, hydraulic. 11. P.W.4 is K.P. Srivastava who has stated that in the year 1988, he was posted as Khandsari Inspector, Rudrapur. The inspection notes with regard to the Khandsari Unit of appellants-accused viz. Ex.Ka-1 and Ka.2 and Exs.Ka-5 to Ka-17 were received by him. He also obtained the sanction for prosecuting the appellants- accused by Sri R.K. Sharma, the then District Magistrate, i.e. Ex.Ka-3. On 29.3.1988, he submitted the charge sheet against the appellants/accused, i.e. Ex.Ka-4. 12. Thereafter, the statements of appellants-accused were recorded u/s 313 of Cr.P.C. and the oral and documentary evidence was put to them in question form. They have admitted that they were granted a licence to run a power crusher of 28 x 35.5. cm. with three rollers, hydraulic non-suplhitation 7-Meerut type boilers and one hand operated centrifugal pump for the crushing season 1986-87. It was further admitted by them that this licence was granted to them in the name of Firm Sagar Sugar Industries in Village Khunsara, P.S. Sitarganj. They further admitted that on 6.1.1987, 6.2.1987, 17.10.1986, 15.1.1987, 24.1.1987, 21.2.1987, 29.3.1987, 16.4.1987, 16.5.1987, 22.5.1987, 7.6.1987, 6.4.1987, 10.3.1987, 8.11.1986 and 27.5.1987, the inspection of their unit was done by Khandsari Officer/Inspector, for which inspection notes were also prepared. However, they have stated that they were running an undersized machine though licence for oversized machine was given to them. Thus, they did not commit any offence. Before two years, when the licence was not renewed, hydraulic machine was installed. 13. Sri S.K. Aggarwal, learned Sr. Advocate has argued that the prosecution has not proved its case against 7 the appellants-accused beyond reasonable doubt. I do not find any substance in this argument. From the evidence as discussed above, it is proved from the statements of P.W.1 Harishankar Prasad, P.W.2 Prithvi Singh, P.W.3 R.S. Pathak, and P.W.4 K.P. Srivastava, supported by the contents of the inspection notes (Exts.Ka-1, Ka-2, Ka-5 to Ka-17) which all relate to crushing season 1986-87 that though the appellants-accused Nem Chandra Sagar and Pothi Ram, Proprietors of M/s Sagar Sugar Industries, Village Sunkhara, Post Nakatpura, Distt. Nainital, now Distt. U.S. Nagar, were granted licence to run a power crusher having size 28 x 35.5. cms, three roller hydraulic non-sulphitation along with 7-boiler of Meerut type. However, on the date of inspection at the spot, a power crusher 28 x 35.5. cm, three roller non-hydraulic non- sulphitation along with 4 boiler of Meerut type was found being used, as is clear from the perusal of the inspection notes Ex.Ka-1 and Ka-2 as well as from the inspection notes Ex.Ka-5 to Ka-17. 14. Apart from above, even there is no explanation came forward from the side of the appellants-accused that they had installed the hydraulic power machine of the prescribed size and also that they had installed 7-Meerut type boilers according to the terms and conditions of the licence granted to them to run their Unit. Even the appellants-accused have admitted in their statements recorded u/s 313 Cr.P.C. that they were granted a licence to run a power crusher of 28 x 35.5. cm. with three rollers, hydraulic non-suplhitation 7-Meerut type boilers and one hand operated centrifugal pump for the crushing season 1986-87. It was further admitted by them that this licence was granted to them in the name of Firm Sagar Sugar Industries in Village Khunsara, P.S. Sitarganj. They further admitted that on 6.1.1987, 6.2.1987, 17.10.1986, 8 15.1.1987, 24.1.1987, 21.2.1987, 29.3.1987, 16.4.1987, 16.5.1987, 22.5.1987, 7.6.1987, 6.4.1987, 10.3.1987, 8.11.1986 and 27.5.1987, the inspection of their unit was done by Khandsari Officer/Inspector, for which inspection notes were also prepared. Both the appellants-accused further admitted that in Crl. Case No.8/1985, State Vs. Nem Chandra and others, they were released on probation of good conduct u/s 3/7 of the Act by executing a personal bond of Rs.2,000/- and by furnishing two sureties each in the like amount. Thereafter again in Crl. Case No.9/1986, State Vs. Nem Chandra & another, both the appellants- accused were released on probation of good conduct on 9.2.1989 on the same terms and conditions for the offence u/s 3/7 of the Act. 15. From the evidence as discussed above and as per the admissions of the appellants-accused and also after perusing the inspection notes aforesaid, it is proved beyond reasonable doubt that the appellants-accused Nem Chandra Sagar and Pothi Ram, Proprietors of Firm M/s Sagar Sugar Industries, Village Khunsara, Post Nakatpura, P.S. Sitarganj, violated the terms and conditions of the licence granted to them and, therefore, according to Order 8 of the U.P. Khandsari Sugar Manufactures Licensing Order, 1967, they committed an offence punishable u/s 7(1)(a)(ii) r/w Section 3(2)(a) of the Act. I concur the view taken by the trial court in convicting and sentencing the appellants-accused as discussed above. 16. For the reasons as recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 27.4.1993 passed by Special Judge (E.C. Act), Nainital in Special Trial No.4/1988, State through Khandsari Inspector, Rudrapur Vs. Nem Chandra Sagar & Pothi Ram, convicting and sentencing the appellants/accused as discussed above, is hereby affirmed. 9 The appellants are on bail. Let them be taken into custody forthwith to serve out the sentence as imposed against each of them. 17. A copy of this order shall be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) April 10, 2009 Rajeev Dang