IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 101 of 2003 Date of Decision : April 07, 2010 State of Himachal Pradesh Appellant Versus Suresh Kumar and another Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant. For the respondents : Mr. Rajesh Verma, Advocate, for respondent No.1. Mr. B. B. Vaid, Advocate, for respondent No. 2. Sanjay Karol, J. (Oral) This appeal by the State is directed against the judgment dated 1.10.2002 passed by the learned Special Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 11-ST/7 of 2002 whereby he acquitted the accused of having committed offences punishable under Sections 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) read with Sections 465 and 468 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? 2 As per the case of the prosecution on 29.11.2000 Sh. Devinder Aggarwal, Inspector Food & Civil Supplies, received a secret information that kerosene oil was being illegally transported from Kollar. The police at Police Post, Majra were duly informed of the same. A raiding party was constituted. The vehicle bearing No. HR-08-6955 which was coming from Kollar towards Paonta Sahib was stopped and on search two drums of kerosene were found loaded therein. The vehicle was being driven by Suresh Kumar (Accused No. 1) who on inquiry informed that the drums were loaded in the jeep by the depot holder of Kollar. Samples of kerosene oil were taken from the drums and the remaining kerosene oil and the samples were sealed with seal-T and taken into possession vide recovery memo Ext. PW 2/A. The statement made by accused Suresh Kumar was sent to Police Post, Majra and based thereupon F.I.R. (Ext. PW 11/A) was registered with Police Station, Paonta Sahib under Sections 3, 7 of the Act. Further investigation reveals that accused Shiv Kumar was actually indulging into the illegal sale of kerosene oil to persons other than the registered card holders. The ration card register (Ext. PW 7/C), sale register (Ext. PW 7/D) and stock register (Ext. PW 7/E) were also seized from the authorised sales depot managed by Sh. Shiv Kumar (accused No. 2). The sealed sample was sent for chemical analysis and as per the report of the chemical examiner (Ext. PW 11/E) the sample was kerosene oil. With the completion of the investigation challan was presented in the Court for trial. 3 The Trial Court charged accused Suresh Kumar for having transported two drums containing 440 litres of blue coloured kerosene oil in violation of the provisions of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1972 and thus having committed an offence punishable under Section 7 of the Act. Accused Shiv Kumar was charged for an offence punishable under Section 7 of the Act for having sold 440 litres of blue coloured kerosene oil in the open market, in violation of the provisions of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1972. He was also charged for having forged entries in the ration card and the stock register with respect to the sale of kerosene oil thus having committed offences punishable under Sections 465 and 468 of the Indian Penal code. Statements of the accused under Section 313 Cr. P.C. were also recorded. The trial Court acquitted the accused of the charged offences. In all the prosecution has examined twelve witnesses According to accused Suresh Kumar he was employed as a driver just 15 days prior to the incident. From the testimony of Sh. Kharak Singh (PW-6) and Sh. Tapender Singh (PW-12) it is apparent that the card holders had actually received their supplies of the kerosene oil. The prosecution could not prove that the kerosene oil was actually not supplied to the card holders by Shiv Kumar (accused No. 2). Accused No. 1 in his statement, which cannot be used against accused No. 2, had not named accused No. 2 as owner of the goods in question. He had only mentioned about the depot in 4 Kollar. It has come on record that in between the place where the vehicle was searched and Kollar there are three other authorised depot holders where kerosene oil is distributed. Records maintained by accused No. 2 were thoroughly checked and no discrepancy with regard to the same was found. Further, the vehicle in question or the seized product has not been proved to be owned by accused No. 2. As per the version of Sh. Mohan Singh (PW-3) the vehicle was sold by him to Sh. Virender Singh of Kollar. Now this Sh. Virender Singh has not been examined by the prosecution. There is nothing on record to link the accused Shiv Kumar with the seized kerosene oil. In so far as Suresh Kumar (accused No. 1) is concerned he is a mere driver. Nothing has been proved on record to show his complicity in the alleged offence. As noticed earlier it is not the case of the prosecution that both the accused persons were partners in the crime. In fact they were charged under the different provisions of the penal laws. As per the statement of Suresh Kumar (Ext. PW 7/B), recorded by PW-7 the owner of the goods was one Sh. Mohan Singh S/o Sh. Hari Singh R/o Kollar. Surprisingly the prosecution has cited this Sh. Mohan Singh as a witness rather than making him as an accused. The driver has been made an accused instead of a witness. Be that as it may be, from the record it could not be pointed out as to how the driver had violated the provisions of Section 3 of the Act. None of the statements of the prosecution witnesses link accused Suresh Kumar with the crime. 5 Even though from the report of the chemical analysis (Ext. PW 11/E) the prosecution has tried to prove that the seized sample and the goods were kerosene oil but however the prosecution has failed to prove that the sample was not tampered with between the time it was drawn and deposited with the laboratory for analysis. The link evidence in this case is weak. In fact it is a case of no evidence. The prosecution has not examined any witness to show that the sample was deposited in the Maalkhana or that it was not tampered with there or that the same was sent from the Maalkhana to the laboratory alongwith a road certificate. The Maalkhana register has not been proved to show that the sample deposited with the laboratory was the very same sample which was seized in the instant case. The Court below has therefore rightly acquitted the accused persons. No ground for interference is made out and the present appeal is consequently dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Sanjay Karol), Judge. April 07, 2010 (PK)