RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1345 OF 2001 (OLD NO.947 OF 1988) Shameem Ahmad S/o Abdul Hameed, R/o Mohalla Marglu Shah, Qasba Nazibabad, P.S. Nazibabad, Distt. Bijnore The State Versus ……… Appellant ……… Respondent Dated: June 20, 2008 Sri Pradeep Hairiya, learned counsel for the appellant Sri Harish Pujari, learned Addl. GA 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 07.04.1988 passed by Special Judge (Sessions Judge), Pauri Garhwal in Special Criminal Case No.6 of 1987, State Vs. Shameem Ahmad, whereby the appellant has been convicted of having committed offence punishable under Section 7 read with Section 3 of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) for violating the provisions of Clause-3 of U.P. Sugar & Gur Dealers Licensing Order 1962 and Clause-7 of the U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply and Distribution), Order 1977. Appellant Shameem Ahmad was sentenced to one year’s R.I. u/s 3/7 of the Act for having contravened the provisions of clause-7 of the U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution), Order 1977. The appellant was further sentenced to one day’s S.I. under Section 3/7 of the Act for having contravened the provisions of Clause-3 of U.P. Sugar & 2 Gur Dealers Licensing Order 1962. Both the sentences were directed to run concurrently. 2. I have heard Sri Pradeep Hairiya, learned counsel for the appellant and Sri Harish Pujari, learned Additional Government Advocate for the State and perused the entire material available on record. 3. In brief the prosecution case is that on 26.8.1986 at 4:45 P.M., Sri J.S. Pundir, Regional Food Officer along with Supply Inspectors Sri Rajendra Singh Pundeer and D.K. Goyal, inspected the stock and record of Kotdwar Branch of U.P. Food & Essential Commodities Corporation Ltd. At the time of inspection, appellant-Shameem Ahmad was found In- charge of godown. It was stated that in the shop/go-down at the time of inspection, rate and stock of 26.8.1986 was not exhibited on the Board hanging in the shop. On the inspection of record, as per stock register, 156 bags weighing 77.89 qtls. of non-levy sugar were found in the shop, however no licence as required under U.P. Sugar & Gur Dealers Licensing Order 1962 was found. It was also stated that for collection and sale for more than 10 qtls. of sugar, as per the said order, licence was required. It was also stated that from June, 1985 to 26.8.1986, In-charge Go-down collected 1040 bags of sugar on various dates and out of those bags, 884 bags were sold. Hence, the left 156 bags weighing 77.89 quintals of non-levy sugar were recovered from the go-down of which the appellant was the In-charge. The same was also given in the Supurdgi of the appellant with the order that he would not sale the same and will keep it safely until further orders. Thereafter, a Fard/Supurdginama was also prepared i.e. Ex.Ka-4. After that the sales record of the go-down was inspected by the Supply Inspector in which the following sales were found forged: - A. It was found that on 15.10.1985, one bag of sugar in the name of Negi Tea Stall, Kashirampur and on 3 9.12.1985, 14 bags of sugar through Cash Memo No.21 was shown to be sold. However, in the enquiry, P.W.2 Mohan Singh Negi and P.W.3 Sabar Singh Negi, who were the owners of the said shop, in their written statements, denied the purchase of sugar. They also denied their signatures in the cash memo and sales register. B. In the name of Gupta Tea Stall, Kashirampur, on 7.10.1985, 29.11.1985, 12.2.1986 and 15.3.1986, 2, 6, 7 and 2 bags of sugar respectively were shown to be sold. Sri Khoob Chand Gupta, owner of this shop also denied purchase of sugar and also denied the verification of his signatures in writing. C. Likewise, in the name of Barthwal Hotel near Roadways Kotdwar, on 31.10.1985, 4.11.1985 and 28.11.1985, 15, 18 & 5 bags of sugar were shown to be sold. However, Sri Yogeshwar Prasad Barthwal, owner of this hotel also denied purchase of the said sugar. D. In the sales register and cash memo, full addresses of most of the purchasers are not mentioned. In view of the above, it was stated that due to collecting and selling the sugar without valid licence, the appellant has committed clear violation of clause 3 of U.P. Sugar & Gur Dealers Licensing Order 1962. The appellant also by not exhibiting the rate and stock in the go-down and also by preparing forged cash memos, has contravened the provisions of Clause 3,4 and 7 of U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution), Order 1977. In view of the above, the appellant has committed an offence punishable u/s 3/7 of the Act. With the same averments, Sri J.S. Pundir, Regional Food Officer gave the report to S.O. Kotdwar, i.e. Ex.Ka-5 on 29.8.1986. On the basis of the said report, a Chik F.I.R. was prepared by 4 Head Moharrir Sri Shambhu Prasad, i.e. Ex.Ka.6. The investigation of the case was entrusted to P.W.5 S.I. J.L. Shah. During the course of the investigation, the Investigating Officer inspected the place of occurrence and prepared the site plan i.e. Ex.Ka.7. Ex.Ka-8 is the sanction accorded by District Magistrate, Garhwal for prosecution of the case against the appellant/accused Shameem Ahmad. During the course of the investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant, i.e. Ex.Ka.9. 4. The prosecution in order to prove its case got examined P.W.1. Yogeshwar Prasad Barthwal, P.W.2 Mohan Singh Negi, P.W.3 Sabar Singh Negi, P.W.4 Jagat Singh Pundir, Regional Food Officer & P.W.5 S.I. G.L. Sah/I.O. of the case. 5. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form. He has admitted that he worked as salesman-cum-In-charge Godown. He also stated that he was merely a servant and was acting under instructions of his Officers. He issued correct receipts and he was falsely implicated due to enmity. 6. After hearing the counsel for the parties and appreciating the entire material available on record, the learned Special Judge (Sessions Judge), Pauri Garhwal vide his judgment and order dated 7.4.1988 has convicted the appellant of having committed offence punishable under Section 7 read with Section 3 of the Act for violating the provisions of Clause-3 of U.P. Sugar & Gur Dealers Licensing Order 1962 and Clause-7 of the U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply and Distribution), Order 1977. The appellant was sentenced to one year’s R.I. u/s 3/7 of the Act for having contravened the 5 provisions of clause-7 of the U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution), Order 1977. The appellant was further sentenced to one day’s S.I. under Section 3/7 of the Act for having contravened the provisions of Clause-3 of U.P. Sugar & Gur Dealers Licensing Order 1962. Both the sentences were directed to run concurrently. Feeling aggrieved by the said judgment and order dated 07.04.1988, the appellant has preferred the present appeal. 7. To prove its case prosecution has examined P.W.1 Yogeshwar Prasad Barthwal who has stated that he has not purchased the sugar in the years 1985 or 1986 from Kashirampur Go-down of U.P. State Food & Essential Commodities Corporation Ltd. He also stated that on Ex.1/1 cash memo dated 4.11.1985, Ex.1/2 cash memo dated 28.11.1985 and cash memo Ex.1/3 cash memo dated 31.10.1985 which are the cash memos of cash memo book i.e. Ex.1, neither he nor his agent nor any servant has made any signatures and even no sugar was purchased. He also stated that Supply Inspector also enquired him about the purchase of sugar and he also gave his statement which was marked as Ex.Ka-1. 8. P.W.2 is Mohan Singh Negi who has stated that he is having a shop in the name of Negi Tea Stall at Kashirampur, Nazibabad Road, Kotdwar. He also stated that from the year 1983 up till 15.10.1985 and on 9.12.1985, he has not purchased sugar from U.P. State Food Corporation, Kotdwar nor he got purchased the same either through his agent or servant. He also denied his signatures on Ex.1/4 cash memo dated 15.10.1985 and Ex.1/5 cash memo dated 9.12.1985, which are the cash memos of cash memo book i.e. Ex.1. He also denied of having purchased sugar through those cash memos. He also denied his signatures in the entry dated 9.12.1985 encircled by Ex.2/1 in the Sales Register Ex.2. He 6 also denied his signatures in the entry dated 15.10.1985 encircled by Ex.2/2 in the Sales Register Ex.2. He also proved the statement given by him to Supply Inspector i.e. Ex.Ka-2. 9. P.W.3 is Sabar Singh Negi who has stated that since last 5-6 years, he is having a tea stall in the name of Negi Tea Stall at Nazibabad Road, Kotdwar. He has also stated that in the year 1985 or 1986, he has never purchased sugar from U.P. State Food Corpn. Ltd., Kotdwar. He also denied his signatures on Ex.1/4 and Ex.1/5 which are cash memos of cash memo book i.e. Ex.1. He also denied of having purchased sugar through those cash memos. He also denied his signatures in the entry dated 9.12.1985 i.e. Ex.2/1 and entry dated 15.10.1985 i.e. Ex.2/2 made in Sales Register Ex.2. He also proved the statement given by him to Supply Inspector i.e. Ex.Ka-3. 10. P.W.4 is Jagat Singh Pundir who has stated that in August 1986, he was posted as Regional Food Officer. On 26.8.1986 at about 4:45 P.M., he along with R.S. Pundir & D.K. Goyal, Supply Inspectors inspected the Kotdwar Branch of U.P. Food & Essential Commodities Corporation Ltd. In the inspection, 156 bags weighing 77.89 quintals of non-levy sugar were found, for which no licence for storing and selling the same, was found. On a perusal of Stock Register, Sales Register & Cash Memo, it emerged out that in June, 1985, irregular sale of sugar was done. Hence, he sealed the sugar available in go-down after sealing it and gave the same in the Supurdgi of appellant. He also stated that when he got the enquiry done by Supply Inspector Rajendra Singh Pundir, then he came to know that the sugar was shown to be sold to three persons, who have in fact not purchased any sugar. Thereafter, he submitted his report in the police station on 29.8.1986. Supurdginama/recovery Fard was also prepared i.e. Ex.Ka-4 in which he and other witnesses have also signed. 7 He also stated that Report Ex.Ka-5 was also written by Rajendra Singh Pundir before him and he also signed on it. 11. P.W.5 is S.I. G.L. Sah, I.O. of the case, who has stated that on 29.8.1986, he was posted as S.I. Kotdwar. Chik FIR of this case was prepared by Head Constable Shambu Prasad i.e. Ex.Ka-6. The investigation of this case was entrusted to him and after receiving the orders and relevant documents, he started the investigation of the case on 30.8.1986. On 1.9.1986, he recorded the statement of J.S. Pundir and on his pointing out, he prepared site plan i.e. Ex.Ka-7. During the course of investigation, he also obtained the sanction for prosecution from District Magistrate, Pauri against the appellant-Shameem Ahmad i.e. Ex.Ka-8. He also recorded the statements of the witnesses during the investigation and after completing the investigation, he submitted the charge sheet in the court i.e. Ex.Ka-9. 12. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form. He has admitted that he worked as salesman-cum-In-charge Godown. He also stated that he was merely a servant and was acting under instructions of his Offices. He issued correct receipts and he was falsely implicated due to enmity. 13. Sri Pradeep Hairiya, learned counsel for the appellant submitted that the case against the appellant is not proved by the prosecution beyond reasonable doubt. The argument advanced by learned counsel for the appellant has no force. As per the evidence discussed above, it is proved that on 26.8.1986 at 4:45 P.M., P.W.4 J.S. Pundir, Regional Food Officer along with Supply Inspectors Sri Rajendra Singh Pundeer and D.K. Goyal, inspected the stock and record of Kotdwar Branch of U.P. Food & Essential Commodities Corporation Ltd. At the time of inspection, appellant-Shameem 8 Ahmad was found In-charge of godown. It was stated that in the shop/go-down at the time of inspection, rate and stock of 26.8.1986 was not exhibited on the Board hanging in the shop. On the inspection of record, as per stock register, 156 bags weighing 77.89 qtls. of non-levy sugar were found in the shop, however no licence as required under Clause 3 of U.P. Sugar & Gur Dealers Licensing Order 1962, was found. It was also stated that for collection and sale for more than 10 qtls. of sugar, as per the said order, licence was required. It was also stated that from June, 1985 to 26.8.1986, In-charge Go-down collected 1040 bags of sugar on various dates and out of those bags, 884 bags were sold. Hence, the left 156 bags weighing 77.89 quintals of non-levy sugar were recovered from the go- down of which the appellant was the In-charge. Even, when P.W.4 Jagat Singh Pundir got the enquiry done by Supply Inspector Rajendra Singh Pundir, then he came to know that the sugar was shown to be sold to three persons, who have in fact not purchased any sugar. These three persons were examined as P.W.1 Yogesh Prasad Barthwal, P.W.2 Mohan Singh Negi & P.W.3 Sabar Singh Negi, who have stated that they have not purchased any sugar and the receipts issued in their names and also the stock register do not bear their signatures. The above-said fact is also proved by the evidence of P.W.4 Jagat Singh Pundir. Thus, in this way, it is ample clear that the appellant had violated the provisions of Clause 3 of U.P. Sugar & Gur Dealers Licensing Order, 1962 and Clause 7 of U.P. Essential Commodities (Display of Prices & Control of Supply & Distribution) Order, 1977, and as such, he has committed an offence punishable u/s 7 r/w Section 3 of the Act as held by the trial court. 14. Learned counsel for the appellant further submitted that as per Clause 2(f) of U.P. Sugar & Gur Dealers Licensing Order, 1962 and as per Section 2(e)(i) of the Essential Commodities Act, 1955, the prosecution has not proved that 9 the sugar being sold by the appellant was having more than 90% sucrose, therefore, the sugar recovered from the appellant does not come within the definition of sugar. The argument advanced by learned counsel for the appellant is not sustainable, as the appellant himself has admitted that he was dealing in sugar and sugar being sold by him was non-levy sugar. Besides this, the appellant himself has admitted in his statement recorded u/s 313 Cr.P.C. that he had applied for issue of licence on 28.8.1986 and in the present case, the raid was conducted on 26.8.1986. Hence, it is clear that the appellant had applied for issue of licence after two days of the raid. Thus, the appellant has admitted that the sugar being sold by him was ‘sugar’ as defined in Clause 2(f) of U.P. Sugar & Gur Dealers Licensing Order, 1962 and also in Section 2(e)(i) of the Essential Commodities Act, 1955. Thus, the argument advanced by learned counsel for the appellant that the prosecution has not obtained the report that there was more than 90% sucrose in the sugar recovered from the appellant, is not at all helpful to the appellant. 15. Learned counsel for the appellant lastly argued that the sentence of one year R.I. as awarded by learned trial court is too severe and the lenient view may be taken and the sentence awarded to the appellant may be reduced. He further submitted that the appellant is 53 years of age and he is a married man and having children also and after the aforesaid offence, he has not committed any offence and this was his first offence in his life and now the period of 22 years has been elapsed after the incident. 16. After considering the aforesaid facts and circumstances of the case and the nature and seriousness of the offence, the Court is of the view that it would be just and proper to reduce the sentence of the appellant to three months’ R.I. 10 17. For the reasons recorded above, the appeal preferred by the appellant is partly allowed. The conviction part of the appellant u/s 3/7 of the Act for violating the provisions of Clause 3 of U.P. Sugar & Gur Dealers Licensing Order, 1962 and Clause 7 of U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution) Order, 1977, is hereby affirmed. The sentence of the appellant for one year R.I. u/s 3/7 of the Act for violating the provisions of Clause 7 of U.P. Essential Commodities (Display of Prices & Stocks and Control of Supply & Distribution) Order, 1977 is hereby reduced to three months R.I. However, the sentence of the appellant for one day S.I. u/s 3/7 of the Act for violating the provisions of Clause 3 of U.P. Sugar & Gur Dealers Licensing Order, 1962, is hereby affirmed. Both the sentences shall run concurrently. 18. The sentence already undergone by the appellant/ accused Shameem Ahmad in connection with the aforesaid crime during the period of trial or appeal, shall be adjusted after verifying from the records. 19. Let a copy of this order be sent back to the trial court concerned forthwith for compliance of the order. Rajeev Dang (Dharam Veer, J.) June 20, 2008