CRA No.1163-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1163-SB of 2001 Date of decision : 22.11.2010 Balbir Singh and others ...Appellants Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Preet Inder Singh Ahluwalia, Advocate/Amicus Curiae, for the appellants. Mr. J S Bhullar, AAG, Punjab. JITENDRA CHAUHAN, J. (ORAL) 1. The present appeal is directed against the judgment and order dated 25.09.2001 (for short as ‘impugned judgment’) passed by the learned Special Judge, Patiala, (for short as `trial Court') whereby the accused– appellants have been convicted for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (for short as ‘the Act’) for having contravened the provisions of the Punjab Light Diesel Oil and Kerosene Dealers Licencing Order, 1978 (for short as ‘the Order’) and awarded the sentence to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months each. 2. The prosecution story, in brief, is that on 12.3.1992, DSP CRA No.1163-SB of 2001 -2- Rachhpal Singh received a secret information that Vijay Kumar and Naresh Kumar, both sons of Dwarka Dass and owners of M/s Dwarka Dass & Sons and Balbir Singh alias Kala were preparing spurious light diesel oil from kerosene oil after mixing some black material in the kerosene oil. On the basis of the said information, formal FIR was recorded. Thereafter, the Police party left to raid the premises of the accused persons. Kuldip Singh was joined as an independent witness. A tanker No.PB-02-9855 was seen coming from Gurdwara Dukh Niwaran Sahib side. The said tanker was stopped, which was being driven by Gurmeet Singh and its Conductor was Ram Parkash. Balbir Singh alias Kala was also with them. The tanker had four chambers. From one chamber, 4000 litres of black oil was recovered. From the second chamber 2000 litres of spurious light diesel oil was recovered. From the other two chambers, 3000 litres each oil was recovered. Samples were drawn from all the chambers. The tanker and the samples were sealed. Site plan was prepared. Relevant memos were prepared and statements of witnesses were recorded. On 14.3.1992, Subhash Chand made a statement that he was a tea-vendor and used to purchase kerosene oil from Naresh Kumar. He had gone to the godown of Naresh Kumar and Vijay Kumar to purchase kerosene oil and found that they were mixing some black material in the kerosene oil and put the same in the chambers of tanker No.PB-02-9855. The samples were sent for chemical examination. After completion of investigation, the challan was presented against the accused. 3. A notice containing the substance of accusations on the accused was served to which they pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined as many as seven CRA No.1163-SB of 2001 -3- witnesses. PW1-H.C. Jagdish Singh tendered in evidence his affidavit Ex.P1/A. PW2-Inspector Krishan Gopal Goel deposed that firm was in the name of M/s Dwarka Dass & Sons, however, the partnership deed was not produced on record. PW3-Constable Faquir Chand tendered in evidence his affidavit Ex.PW3/A. PW4-DSP Rachhpal Singh reiterated the prosecution version and further stated that after taking the case property in his possession, the same was handed over to the MHC on the same day. Remaining investigation was done by some other officer. He specifically deposed that nobody had tampered with the seals of the samples and other articles of the case property till the same were deposited with the MHC. The supardar did not produce the oil and the tanker in the Court. PW5-Ashok Kumar Walia deposed that as per their record, a licence under the Act was granted to M/s Dwarka Dass & Sons, Patiala, on 11.5.1978 as kerosene dealers which was got renewed from time to time. PW6-P.K. Chakrabarti deposed that he was working as a Scientific Officer (Chemical), in the office of Director, National Test House, Calcutta. On 21.9.1992, he had received four tin containers described as light duplicate diesel oil relating to this case from the SSP, Patiala. The samples were duly sealed and marked as A, B, C and D, respectively, for identification. The samples were tested as per Indian Standard 1459-1974 and the details thereof were mentioned in his report, Ex.PE. PW7-Subhash Chand did not support the prosecution case and CRA No.1163-SB of 2001 -4- was declared hostile. 5. In their statements u/s 313 Cr.P.C., accused-Naresh Kumar and Vijay Kumar stated that they are innocent and pleaded false implication. They stated that they were neither the owners of the tanker nor in possession of the tanker and the material contained therein. The driver was also not in their service. They had nothing to do with the tanker, driver and the material in the tanker. They were running the firm, namely, M/s Dwarka Dass & Sons under a valid licence and no complaint was there against them. Balbir Singh was not Manager of their firm. The accused did not lead any evidence in their defence. 6. After hearing learned counsel for both the parties, learned trial Court, acquitted the accused-Naresh Kumar, Vijay Kumar and M/s Dwarka Dass & Sons while accused-Balbir Singh, Gurmeet Singh and Ram Parkash, were convicted and sentenced for the offence and term as noticed at the outset of this judgment. 7. Feeling aggrieved against the judgment of conviction and order of sentence passed by the learned Trial Court, the appellants have preferred this appeal, which was admitted by this Court, vide order dated 10.10.2001. 8. Learned counsel for the appellants has submitted that the appellants have been charged for violating the provisions of the Order. However, from the perusal of the Order, it would reveal that adulteration of kerosene is not an offence. Moreover, no standard has been prescribed therein. 9. Learned counsel has further submitted that the secret information was received by DSP Rachhpal Singh, PW4. As per the secret information, adulteration was being done by Naresh Kumar and Vijay CRA No.1163-SB of 2001 -5- Kumar and Balbir Singh at their firm, M/s Dwarka Dass and Sons, accused No.6. Subsequently, the statement of one Subhash Chand was also recorded on 14.3.1992 to the effect that when he visited the accused-firm, Naresh Kumar and Vijay Kumar were mixing some black material in kerosene oil. 10. The learned counsel has further submitted that from the perusal of zimni orders, it is made out that the challan was straightaway presented to the designated Court of Special Judge, which is the Court of Sessions and not the Magistrate. The learned counsel has, thus, argued that in view of the provisions contained in Section 193 Cr.P.C., the entire prosecution stands vitiated. 11. On the other hand, the learned counsel for the State has submitted that recovery of the adulterated kerosene was affected from the appellants who were the driver (Gurmit Singh) and conductor (Ram Parkash) and another (Balbir Singh) who was accompanying them. The appellants were not known to the Police officials earlier and there is no allegation of any enmity with the appellants. 12. I have heard learned counsel for the parties and perused the record with their able assistance. 13. The appellants were tried and sentenced for contravening the Order, however, from the perusal of Clause 3-Licensing of Dealers, it is made out that adulteration of kerosene oil is not an offence thereunder. Moreover, no standard of purity has been prescribed under the Order. Clause 3 of the Order reads thus:- “3. Licensing of dealers:- No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted under this Order by the District Magistrate. CRA No.1163-SB of 2001 -6-  Now, therefore, in exercise of powers conferred by clause 17 of Punjab Light Diesel Oil And Kerosene Dealers Licensing (First Amendment) Order,1978 , I, hereby exempt from the provisions of clause 3 of said order, (i) All persons engaged in the business of sale or storage for sale of kerosene oil at govern- ment Fair Price Shops who are authorized to do so by the government or by any officer empowered by it in this behalf; and (ii) All persons engaged in the business of sale or storage of kerosene oil on behalf of (a) Coop- erative Agricultural Service Societies and (b) Co- operative Thrift And Credit Societies. [Added by endorsement no. 9603-4s-(19)-78/51153- A,Chandigarh Dated 08-11-1978, Published in the Punjab Government Gazette Dated the 17th November 1978] Sub-clause (i) above has been substituted by following clause by Endorsement No. 490-4S-(69)-86/3585, Dated Chandigarh The 29 th January, 1986 Published in the Punjab Government Gazette,(Extra) Dated the 29-01-1986 vide No.S.O. 4/P.L.D.O.&K.D.L.O. 78/CI.17/Amd./86. (i) All retailers who have subsisting agreements with the state government for sale or storage of Kerosene oil in accordance with the terms of such agreements; and” 14. The raid was conducted in pursuance of the secret information received by DSP Rachhpal Singh. As per the case of the prosecution, adulteration was done by Naresh Kumar and Vijay Kumar, who are the CRA No.1163-SB of 2001 -7- partners of the firm-M/s Dwarka Dass & Sons arrayed as accused No.6 by the learned trial Court. However, said Naresh Kumar and Vijay Kumar along with the firm were acquitted by the learned trial Court, who as per the case of the prosecution, were seen mixing the black material in kerosene oil. 15. The solitary independent witness, namely, Kuldeep Singh, was not examined in the instant case. Subhash Chand, who, as per the case of the prosecution, furnished information of his being at the depot, also did not support the case of the prosecution. 16. In the instant case, it is established from the reading of the zimni orders that the challan was straightaway presented to the designated Court of Special Judge. This, in my opinion, is contrary to the spirit of Section 193 of Cr.P.C. In a similar situation, Hon’ble the Supreme Court in Jagdish Prasad Gupta V. State of Rajasthan and others, 1995 Supp (3) SCC 386, has held as under:- “5. That apart, having examined the provisions of the Essential Commodities Act, we are satisfied that the Special Court constituted under Section 12-A of the Act is to be presided by a Single Judge who is qualified for appointment as a High Court Judge or he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge. In the instant case admittedly, the Special Court is presided by an additional Sessions Judge and as provided under Section 193 of the Code of Criminal Procedure, the Court of Session cannot take cognizance of any offence directly except as expressly provided by the Code of Criminal Procedure or by any other law for the time being in force. The section further CRA No.1163-SB of 2001 -8- lays down that no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the Code. That being the legal position, the Additional Sessions Judge who is presiding over the Special Court cannot get jurisdiction by a mere transfer of a case by the High Court. We may also point out that the High Court has not referred to any of these provisions before ordering such transfer. In the result, the impugned order is set aside and all the cases which are transferred by virtue of the impugned order dated 30.7.1993 are sent back to the Judicial Magistrate for CBI cases, Jaipur for being tried and disposed of in accordance with law.” 17. Furthermore, Hon’ble the Apex Court, in Moly and another V. State of Kerala, 2004(4) SCC 584, has held as under:- “5. Pristine question to be considered is whether the Special Judge could take cognizance of the offence straightaway without the case being committed to him. If the Special Court is a Court of Session, the interdict contained in Section 193 of the Code of Criminal Procedure, 1973 (for short the “Code”) would stand in the way. It reads thus: “193. Cognizance of offences by Courts of Session – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been CRA No.1163-SB of 2001 -9- committed to it by a Magistrate under this Code.” 18. In the circumstances, I am of the considered view that the entire trial is vitiated on account of violation of the provisions embodied under Section 193 Cr.P.C. Moreover, except PW4-DSP Rachhpal Singh, no other witness has supported the case of the prosecution. 19. Consequently, the present appeal is allowed and the impugned judgment and order dated 25.09.2001 passed by the learned Special Judge, Patiala, is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) 22.11.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No