IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 261 of 2001 (Old No. 965 of 1993) Yogesh Kumar & Another. .…. Appellants/Accused Versus State of U.P. …………… Respondent July 7, 2009 Smt. Indu Sharma, Advocate holding brief of Mr. Jagdi Bisht, Advocate for the appellants. sh Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 20.5.1993 passed by the Special Judge, Pauri Garhwal in Special Criminal Case No. 1 of 1989, State v. Yogesh Kumar & Anr., whereby each of the appellants/accused, viz., Yogesh Kumar and Sunil Kumar has been held guilty for the offence under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (for short, the Act) and each of them has been convicted and sentenced to pay a fine of Rs. 2,000/- and in default to undergo R.I. for three months. 2. I have heard learned Counsel for the parties and have perused the entire material available on record. 3. The prosecution case, in brief, is that Sri Gaya Prasad, Deputy Collector along with some other persons inspected the Firm M/s Garhwal Vanaspati Store on 27.2.1988 on the orders of District Magistrate, Pauri Garhwal. The said Firm was dealing in wholesale vegetable oil at Lower Bazar, Pauri. Appellant no. 1 Yogesh Kumar 2 was the owner of the firm. The inspection was made in the presence of Sunil Kumar, Mahesh and Rajendra Kumar. During the inspection it was found that the wholesale licence was not displayed at the proper place. The sale register was not duly filled in and, therefore, there was breach of Order and Licence, which was punishable under Section 3/7 of the Act. The registers of the firm were taken into custody for inspection. The goods in the Firm were seized and were given in the Supardgi. The Board was sealed on the spot and was taken into possession. After inspection a detailed report was filed by Sri Gaya Prasad, Dy. Collector at P.S. Pauri, in which it was alleged that there was oral complaints that the firm was charging higher price than fixed and cash memos were given of less amount or the cash memos were not even issued. The statements of the witnesses were taken by Sri D.P. Badola, Supply Inspector. The said persons admitted that higher price was charged from them. It was also alleged that in the cash memos there were names of the persons to whom allegedly the goods were sold but no such persons were in existence at the alleged place. On the basis of the said report a case was registered against the appellants/accused and after obtaining sanction for prosecution the chargesheet was submitted against them. 4. The appellants/accused admitted before the trial court that they were dealing in wholesale vegetable oil in the name of Firm M/s Garhwal Vanaspati Store. It was also admitted that Firm was inspected on 27.2.1988 at 2 PM by Sri Gaya Prasad, Dy. Collector and others. The appellants/accused, however, denied the allegations made against them and stated that there was no breach of Order or Licence. 3 5. To prove its case, the prosecution has examined PW1 Pitamber Datt; PW2 D.P. Badola, Supply Inspector; PW3 Mahabir Singh; PW4 S.I. R.C. Lohani, the I.O. of the case; PW5 Anand Singh; PW6 Sadanand; PW7 S.I. Ramesh Chandra Sharma, the I.O. of the case and PW8 Gaya Prasad, S.D.M. 6. Thereafter, statement of each of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any oral or documentary evidence on record. 7. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Special Judge, Pauri Garhwal vide his judgment and order dated 20.5.1993 convicted and sentenced to the appellants/accused as discussed above. Against the aforesaid judgment and order dated 20.5.1993, the appellants/accused have preferred the present appeal. 8. To prove its case, the prosecution examined PW1 Pitamber Datt, who did not support the prosecution case and was declared hostile. 9. PW2 D.P. Badola has stated that on 27.2.1988 he was posted as Supply Inspector and at the time of inspection on that day he was accompanied Sri Gaya Prasad, S.D.M (PW8). He has stated that wholesale licence was not displayed. He has further stated that stock register, sale register and cash memos were taken into possession and after inspection it was found that in the sale register, no sale was entered from 8.12.1987 to 4 2.2.1988 and from 23.2.1988 to 26.2.1988. There were oral complaints against the aforesaid Firm that vegetable oil was being sold at a premium. Goods and the Board were seized and were given into the possession of Mahesh Kumar. Fard Supardginama was prepared on the spot. The inspection of the registers was made by him in the presence of the S.D.M. It was also found that the quantity which was shown to be sold were not entered in the records. From the enquiry it was also found that the price which was mentioned in the cash memo, more than it was charged and the some persons were not found in the same address in which the cash memo were issued. The complaint Ex. Ka-1 was received from PW1 Pitamber Datt and PW6 Sadanand. This witness has proved the Fard Supardinama Ex. Ka-3 and Ka-4. In the cross- examination, he has stated that **gekjs ekaxus ij eqfYte lquhy us Fkksd dk ykbZlasl vius tsc ls fudkydj gesa fn;k FkkA og ykbZlsal lgh FkkA** 10. PW3 Mahabir Singh also did not support prosecution case and was declared hostile. 11. PW4 R.C. Lohani, the I.O. of the case has stated that in 1988, he was posted in police station Pauri as Sub Inspector. FIR Ex. Ka-2 was received in the police station. Constable Sri Ram had prepared the Chick FIR Ex. Ka-5. Necessary entries were made in the GD. Copy of GD is Ex. Ka-6. Investigation of this case was initially done by the Officer In-charge Prem Singh. On 1.6.1988, investigation was transferred to Chetan Swaroop. Since 15.6.1988, the investigation was started by S.I. Indra Datt, who recorded the statement of PW2 D.P. Badola, Supply Inspector. He has further stated that he started the investigation of this case from 26.7.1988. He has also proved the site plan Ex. Ka-7. During the course of investigation, he recorded the 5 statement of the witnesses and proved copy of order Ex. Ka-8. He has also taken the specimen signatures and handwriting of the appellants/accused by the order of the Court and sent the same to the handwriting expert. He has proved the report of the handwriting expert Ex. 1. Thereafter on 7.2.1989, the investigation of this case was transferred to S.I. R.C. Sharma (PW7), who obtained the sanction of the District Magistrate to prosecute the appellants/accused and the sanction was proved as Ex. Ka-9. After completing the investigation, the chargesheet Ex. Ka-10 was filed by PW7 R.C. Sharma. 12. PW5 Anand Singh also did not support the prosecution case and was declared hostile. 13. PW6 Sadanand has stated that he was Secretary of the cooperative society in 1988 and PW1 Pitamber Datt was salesman of that society and he had purchased the vegetable oil from the shop of the appellants/accused on 25.2.1988 and account of purchasing the said item is Ex. Ka-1. 14. PW7 S.I. R.C. Sharma, who subsequently investigated the case has stated in his deposition that he had obtained the specimen signatures of the appellants/accused and had sent the same to the Forensic Laboratory. He had also received the sanction from the District Magistrate on 5.4.1989 to prosecute the appellants/accused. After completing the investigation, he filed the chargesheet Ex. Ka-10 against the appellants/accused. 15. PW8 Gaya Prasad has stated in his deposition that on 27.2.1988, he was posted as Dy. Collector in Pauri Garhwal. On that day, he along with PW2 D.P. Badola, 6 Supply Inspector had inspected the Firm M/s Garhwal Vanaspati Store. At that time, appellant no. 2 Sunil Kumar, brother of appellant no. 1 Yogesh Kumar was present in the shop. The sale register, stock register and cash memos were taken into possession for examination. These papers are Ex. 2, 3 and 4 respectively. This witness has corroborated the statement of PW2 D.P. Badola. In the cross-examination, this witness has stated that **;g lgh gS fd HkkSfrd lR;kiu ij stock lgh ik;k x;k FkkA dS’k eSeks o foØ; jftLVªj nksuksa ds bUnzkt feykus ds ckn stock lgh FkkA** 16. After that, the statements of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In reply to question no. 2, appellant no. 1 Yogesh Kumar has stated that he was not present in the shop at the time of inspection and the inspection was done after forcibly getting the shop opened. In reply to question no. 3, he has stated that the stock register was in the Supply Office as the same was summoned by the D.S.O. Hence, sale was not entered for the period starting from 8.12.1987 to 2.2.1988 and from 23.2.1988 to 26.2.1988. However, in defence, they did not produce any oral or documentary evidence on record. 17. Learned Special Judge has held that the prosecution has totally failed to prove that appellants/accused were charging higher rate, rather the evidence of the prosecution is concocted and manipulated against the accused. However, appellants/accused were held guilty for having committed breach of certain terms of licence and thus committed offence under Section 3 read with Section 7 of the Act. Learned Special Judge has also held that it 7 was a mere technical fault on the part of the appellants/accused that licence was not displayed as everybody knew that accused were wholesale dealer in vegetable oil. Learned Special Judge has further held that the accused only failed to make entries in the sale register and there was no false sale or black marketeering and again it was a technical fault on the part of the appellants/accused. Considering these facts and circumstances, learned Special Judge while holding the appellants/accused guilty for the offence under Section 3 read with Section 7 of the Act, convicted and sentenced each of the appellants/accused to pay a fine of Rs. 2,000/- and in default to undergo R.I. for three months. 18. Learned Counsel for the appellants has argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellants/accused beyond reasonable doubt. I find substance in the argument of learned Counsel for the reasons that it has come in the evidence that shop was forcibly got opened for carrying out the inspection. It has also been stated by PW2 D.P. Badola that the wholesale licence was shown to the inspection team and the appellants/accused had a valid wholesale licence on the relevant date. Therefore, it is not the case of the prosecution that the appellants/accused were not having the valid licence. As regards the exhibition of the licence, it is very much clear that the shop was got forcibly opened by the inspection team and, therefore, licence was not displayed at the proper place, but the same was shown to the inspection team. Hence, in these circumstances, there was no breach of any term or condition of the licence on the part of the appellants/accused for having not displayed the licence. 8 19. Furthermore, no irregularity could be found in the sale as it has come in the deposition of PW8 Gaya Prasad, S.D.M. that on physical verification of the stock after comparing the entries in the sale register and cash memos, the same was found to be correct. Hence, there was no irregularity or difference in the sale mentioned in the register. Moreover, the stock register was summoned by the D.S.O. and hence, the entries for the alleged periods were not entered in the stock register. Therefore, for this mistake, the appellants/accused are not accountable. All the entries in the sale register and the cash memos were correctly made. There was no false sale or black marketeering on the part of the appellants/accused. Hence, there was no violation of any term of licence issued to the appellants/accused under Uttar Pradesh Vanaspati Dealers Licensing Order, 1969 and Uttar Pradesh Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977. 20. In view of my foregoing discussion and conclusion, offence under Section 3 read with Section 7 of the Act is not proved against the appellants/accused beyond reasonable doubt and they are entitled to get the benefit of the same. As such, the impugned judgment and order dated 20.5.1993 passed by the trial court is not justified and correct and the same are liable to be set aside. 21. Accordingly, the appeal is allowed. The judgment and order dated 20.5.1993 passed by the Special Judge, Pauri Garhwal in Special Criminal Case No. 1 of 1989, State v. Yogesh Kumar & Anr., convicting each of the appellants/accused, viz., Yogesh Kumar and Sunil Kumar for the offence under Section 3 read with Section 7 of the Act is hereby set aside. Consequently, sentence awarded 9 to each of the appellants to pay a fine of Rs. 2,000/- and in default to undergo R.I. for three months is also set aside. 22. Let the lower court record be sent back. (Dharam Veer, J.) 07.07.2009 PRABODH 10