Criminal Appeal No. 787-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 787-SB of 1996 Date of decision: 6th February, 2008 Hari Chand ... Petitioner Versus State ( U.T.) Chandigarh ... Respondent Present: Thakur Kartar Singh, Advocate for the appellant. Mr. Hemant Bassi, Advocate for respondent-UT Chandigarh. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 22.11.1996 rendered by the Court of learned Special Judge, Chandigarh, whereby he convicted and sentenced Hari Chand accused to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one month under Section 7 of The Essential Commodities Act, 1955 ( for brevity, 'the Act' ). Criminal Appeal No. 787-SB of 1996 2 Shorn of all unnecessary details, the facts of the prosecution case are that on 18.9.1992, Sunil Kapur, Inspector Food and Supplies, in the company of P.K.Dhawan, Narinder Kumar and Sushil Kumar Gupta, also Inspectors of the aforesaid department, conducted a raid on the business premises of M/s. Sharma and Company situated in Shop No. 1034, Sector 22-B, Chandigarh, where the accused was found present, being the Proprietor of the aforesaid firm. He was found in possession of Exercise Books, Candles, Edible Oil, Cold Drinks etc. for the purpose of sale in his shop premises but without having displayed any price list of the above mentioned articles in his shop premises. Thus, he was found contravening the provisions of the Act. On receipt of telephonic message from sunil Kapur Inspector, the police party headed by SI Sarwan Singh reached there. A written complaint, Ex. PA was presented by Sunil Kapur before SI Sarwan Singh, who made his endorsement on it and sent the same to the Police Station, where on its basis, formal F.I.R was recorded. Then, Sunil Kapur produced three packets of Candles, 3 dozen of Exercise Books, 12 Containers of Mustard Oil, 12 Packs of Dhara brand Refined of one litre each, on crate of mixed Cold Drinks, one rate list before SI Sarwan Singh, who seized these articles vide Memo. Ex. PD. The statement,Ex.PE of accused Hari Chand was also produced before the aforementioend Sub Inspector, who prepared the rough site-plan showing the place of recovery, recorded the statements of witnesses and on return to the Police Station, deposited the case property in the Malkhana. At the time the Sub-Inspector reached the aforesaid premises, the accused was not found present there and he was formally arrested on 24.9.1992. The specimen signatures and handwriting of the accused were obtained before Mr. P. K. Sharma, Criminal Appeal No. 787-SB of 1996 3 Executive Magistrate on 26.8.1993. The same were got compared with the specimen handwritng and signatures of the accused from the handwriting expert. After completion of investigatin, the charge sheet was laid in the Court of Special Judge, Chandigarh. The accused was charged under Section 7 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined Baldev Singh PW-1, Jaswant Singh PW-2, Swaran Singh Badhawan PW-3, Sunil Kapur Inspector PW-4, R. K. Dhawan Inspector PW-5, P.K.Sharma PW-6, Santokh Singh, Government Examiner of questioned documents PW-7, R.C.Bhalla, Junior Assistant PW-8, Sant Ram PW-9, Harjinder Singh PW-10, Sukhdyal Singh MHC PW-11, Sarwan singh SI PW-12 and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. He examined Constable Mohinder Singh of Police Station, Sector 17, Chandigarh as DW-1 in his defence. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the same, he has preferred this appeal. I have heard Thakur Kartar Singh, Advocate, learned counsel for the appellant as well as Mr. Hemant Bassi, Advocate, counsel for the Union Territory, Chandigarh. Mr. Thakur Kartar singh, Advocate, on behalf of the appellant, Criminal Appeal No. 787-SB of 1996 4 valiantly urged that the shop premises of the appellant being situated just opposite Bus Stand, Sector 17, Chandigarh, there could be no dearth as to the availability of independent witnesses, but as transpires from the prosecution evidence, no such witness was attempted to be joined and, thus, there is no corroboration from the independent source to the evidence tendered by the official witnesses, who being interested in the success of the case, their evidence ought to be discarded. He further pressed into service that as emanates from the evidence of Sarwan Singh, Sub Inspector PW-12, the accused could not be arrested being not present in the shop at that time and that in the absence of the appellant or proof of ownership of the shop, he cannot be held liable for the alleged offence. It is further argued that as would be apparent from the evidence of Mohinder Singh consable No. 2284 examined as DW-1, he had taken the photographs of the shop premises in question at the asking of SI Sarwan Singh, Investigating Officer and as per the photogaph Ex.D-5, the rate list was duly displayed on the pillar of the shop premises which falsifies the entire prosecution story. Mr. Thakar Kartar Singh, Advocate further canvassed at the bar that according to Sunil Kapur PW-7, they reached the shop at 10.00 A.M. whereas it is in the evidence of P.K.Dhawan PW-5 that they reached the shop at 1.15 P.M. and, thus, obviously these P.Ws are discrepant and contradict each other on a very material point. To overcome these submissions, Mr. Hemant Bassi, Advocate, on behalf of Union Territory, Chandigarh, agitated at the bar that the voluminous evidence produced by the prosecution nullifies the statement of Constable Mohinder Singh DW-1 and as regards the evidence of the official witnesses, it is as good as of other witnesses. Criminal Appeal No. 787-SB of 1996 5 On giving a deep and thoughtful consideration to the rival contentions, I am disposed to hold that the contentions raised by Mr. Hemant Bassi are unsustainable for the reasons to be recorded hereinafter. Constable Mohinder Singh DW-1 has stated as under :- ''On 18.9.1992 I was posted in Photo Section PS Central, Chandigarh. On that day as per the facts mentioned in DDR No.29 dated 18.9.1992 I took the photographs of the place of occurrence of FIR No.282 in Sector 22, Chandigarh at the instance of ASI Sarwan Singh, I.O. of that case. I have brought the negatives of those photographs and also two sets of the enlarged photographs as per direction given to me on the summons. The same are Ex. D-1 to Ex.D-5 and the negatives are Ex.D-6 to Ex.D-10. '' It is in the cross-examination of Sub Inspector Sarwan Singh PW-12 that '' I do not remember the number of photogaphs taken. There is one Mohinder Singh Police Photographer, who might have taken photos of the spot. I reached the shop at 10.30 A.M. '' It is in his further cross- examination that '' There is a pillar in front of the said shop and there is a paint on the pillar. '' Palpably, he has not denied the taking of photographs by Mohinder Singh DW-1 of the spot. It is abundantly clear from the above referred statement of Mohinder Singh DW1 that at the instance of the Investigating Officer, he took the photogaphs of the shop premises. He has proved the photographs, Ex. D-1 to Ex. D-5 along with their negatives, Criminal Appeal No. 787-SB of 1996 6 Ex.D-6 to Ex.D-10. A glance through the photograph, Ex. D-5 would reveal that on the pillar, the rate list of Dhara,Copy,Candle, Match, Soap,Fruti, Thums-up, Limca, Soda etc. with their rates was found displayed. The learned trial Court has osberved in paragraph no.11 of the judgment as under :- '' True that the photographs were not produced and relied upon by the prosecution at the time of leading the evidence despite the fact that the same were taken at the instance of the then Investigating Officer of the case by Constable Mohinder Singh, but that fact will not mean that the photograph, Ex. D-9 negative of which is Ex.D-5 was also taken along with the other said photographs. The perusal of Ex. D-9 reveals that the rates of commodities including Dhara refined, Candles, Exercie Books, Mustard Oil, Soft Drinks and others were written with chalk on some pillar near the shop of the accused. It does not appeal to reason that any Investigating Officer will get the photographs of such like rate lists even if it is admitted for the sake of arguments that the same existed there. '' A careful delving into the record would reveal that, as a matter of fact, Ex. D-5 is a photograph whereas the negative is Ex. D-9. The reason Criminal Appeal No. 787-SB of 1996 7 obviously assigned by the learned trial Court for discarding the photographs is that it does not appeal to reason that the Investigating Officer would have got photographed such like rate lists. This reasoning is nullified by SI Sarwan Singh PW-Investigating Officer as he has stated in no uncertain terms in his above extracted cross-examination that Mohinder Singh Constable might have taken the photographs of the spot. It does not stand to the logic that Mohinder Singh, a police official would have taken the photographs of the spot of his own nor there could have been any occasion for him to indulge into such an activity. More so, the Investigating Officer has not categroically denied the taking of photographs by the above mentioned defence witness at his instance. So, it boils down that the photographs in question were taken by Mohinder Singh DW-1 at the asking of the Investigating Officer. The photograph, Ex.D-5 nullifies the accusation against the appellant. As observed by a Division Bench of this Court in Malkiat Singh v. State of Punjab, 2007 (1) Recent Criminal Reports (Criminal) 626, the credibility and trustworthiness of defence witness ought also to be attributed to the defence witness at par with that of prosecution. The Hon'ble Supreme Court in State of Haryana v. Ram Singh, 2002 (1) Recent Criminal Reports (Criminal) 443 has also laid down that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. In view of this ratio decidendi, the credibility and trustworthiness of Constable Mohinder Singh, DW-1 has to be treated at par with the prosecution evidence as the same outweighs the prosecution evidence. As per the evidence of Sunil Kapur PW-4, on 18.9.1992 when they raided the business premises of M/s. Sharma and Company, the Criminal Appeal No. 787-SB of 1996 8 accused Hari Chand was present there, whereas according to SI Sarwan Singh PW-12, the accused could not be arrested as he was not present at the shop when he reached there and that the accused was formally arrested on 24.9.1992 after he had obtained anticipatory bail from the Court on 23.9.1992. Sunil Kapur, has no where stated as to how the accused managed to escape if he was in attendance at the moment when they arrived in his shop premises. Further, according to this witness, they reached the shop around 10.00 A.M. whereas it is in the statement of P.K.Dhawan, PW-5 that they reached the shop premises at 1.15 P.M. Thus, obviously both these witnesses are not in unison on the point of time at which they reached the shop premises of the accused. Further, Sunil Kapur PW has stated that no witness was joined from the public. He or the Investigating Officer has not assigned any reason for non-joining of an independent witness. There is no denying the fact that the shop premises of the appellant is situated just opposite General Bus Stand, Sector 17, Chandigarh, where there could be no scarcity of members of the public to join the proceedings. In view of the foregoing discussion, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. The bail bonds shall stand discharged. ( HARBANS LAL ) JUDGE 6th February, 2008 Note: Whether to be referred to the Reporter ? Yes/No RS