RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1747 OF 2001 (OLD NO.350 /1994) Raghunath Prasad Jindal ……… Appellant Versus The State ……… Respondent Dated: June 17, 2009 Sri Sandeep Tandon, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 22.2.1994 passed by Special Judge (E.C. Act), Dehradun in Criminal Case No.4/1991, State Vs. Sanjay Kumar & others, whereby the learned Special Judge (E.C. Act) convicted the accused/appellant Raghunath Prasad u/s 3/7 of The Essential Commodities Act, 1955 (hereinafter to be referred as the Act) and was sentenced to two years’ R.I. and a fine of Rs.10,000/-. and in default of payment of fine further three months’ S.I. was awarded. However, the co-accused persons, namely, Sanjay Kumar, Shoorvir Singh and Ambedkar Kumar were acquitted of the charge levelled against them by the trial court. 2. I have heard Sri Sandeep Tandon, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 2 3. In brief, the prosecution case is that Sri S.P. Shukla, D.S.O., Dehradun lodged the F.I.R. at Police Station, Dalanwala with the averments that on 31.1.1991 at about 02:00 P:M he received the information that Sanjay Kumar, Salesman of the fair price shop of Raghunath Prasad Jindal have sold one barrel of Kerosene oil in unauthorized way and that the residents of Nai Basti, Chandar Road have caught hold the retailer. On getting this information, he accompanied with Supply Inspectors reached at Himani Gas Chauraha and from the spot he recovered one barrel of 220 Ltrs. Kerosene oil loaded on the three-wheeler bearing No. UGA 9406 of Shoorvir Singh. The statements of Shoorvir Singh were recorded on the spot. The statement of Shoorvir Singh was supported by Ambedkar Kumar. Munna Teli, Naushad, Farukh Ahmed and Munish Kumar also signed on the statement as witnesses. Meanwhile, the inspection of the fair price shop of Raghunath Prasad Jindal was done in presence of Sanjay Kumar, Salesman. Three bags of super fine rice weight 2.50 quintals, 16 bags of common rice weight 14.43 quintals, one bag of sugar weight 19 kg and one stock register valid upto 31.1.1991 was recovered from the shop. Two sales register which had the entries from 17.12.1990 to 30.1.1990 were also found. Thereafter the inspection note, recovery memo and supardginama was prepared which is Ext.Ka-1. In the stock register, the opening balance on 31.1.1991 was shown 260 Ltrs. Kerosene oil but no sale of kerosene oil was entered in the register on that day. Thus, the retailer and his salesman by not giving kerosene oil to the ration card holders, Sanjay Kumar, Salesman has sold 220 Ltrs. Kerosene oil to Shoorvir Singh in an unauthorized way. By doing this act, the accused/appellant Raghunath Prasad Jindal and his salesman Sanjay Kumar have violated the provisions contained under The U.P. 3 Scheduled Commodities Distribution Order, 1990, which is punishable u/s 3/7 of the E.C. Act. On the spot, three samples were taken into three phial from the said kerosene oil, out of which one sample was given to Sanjay Kumar. According to the recovery memo prepared on the spot, the commodities recovered from the shop was given in the supardgi of Pooran Singh Bisht, Fair price shop dealer. The three-wheeler bearing No. UGA 9406 alongwith one barrel of 220 Ltrs. Kerosene oil and Sanjay Kumar, Shoorvir Singh and Ambedkar Kumar were taken to the Police Station. With the above-said averments, Sri S.P. Shukla, District Supply Officer, Dehradun lodged the F.I.R. on 31.1.1991 at 05:30 P:M at P.S. Dalanwala. That F.I.R. is Ext.Ka-3. On the basis of that F.I.R., Chik F.I.R. (Ext.Ka-4) was prepared. The necessary entries were also made in the G.D., copy of which is Ext.Ka-7. The investigation of this case was entrusted to Sub Inspector S.N. Sharma. The receipt of register of ration card is Ext.Ka-2. During the course of investigation, the I.O. inspected the spot and prepared the site-plans, which are Ext.Ka-8 and Ka-10. On 25.3.1991, the then District Magistrate, Dehradun accorded the sanction to launch prosecution against the accused persons. That sanction order is Ext.Ka-9. After completing the investigation, the I.O. submitted the charge sheet against the accused/appellant Raghunath Prasad Jindal and the co-accused Sanjay Kumar, Shoorvir Singh and Ambedkar Kumar (acquitted by the trial court). That charge sheet is Ext.Ka-5. 4. Particulars of offence were stated to each of the accused persons in question form, who have denied the particulars of offence made against them and wishes to face the trial. So the case was fixed for the prosecution evidence. 4 5. In order to prove its case, the prosecution has examined P.W.1 S.P. Shukla, D.S.O., Dehradun. 6. Thereafter, the statements of the accused/appellant and the co-accused persons were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 7. P.W.1 S.P. Shukla, D.S.O has stated that on 31.1.1991 at 01:30 P:M residents of Chander Road complained that a drum of 220 Ltrs. Kerosene oil loaded in three-wheeler No. UGA 9406 is being sold in black market from the fair price shop of Raghunath Prasad Jindal and the residents of Chander Road has intercepted the said three-wheeler at Himani Gas Chauraha. On this information, he accompanied by Inspector Jareef Hussain and Senior Inspectors Sri Shukla and Sri Bahuguna reached on the spot. 220 Ltrs. Kerosene oil was loaded in the three-wheeler. He made enquiries from Shoorvir Singh, driver of the three-wheeler and recorded his statement, who told him that the said Kerosene oil was given to him by Sanjay Kumar, Salesman of Raghunath Jindal and that he (driver) was taking it to the Chips Factory of Sunil Jain. The statements of Sanjay Kumar, Salesman were also recorded on the spot. Thereafter, he inspected the shop of the accused/appellant Raghunath Prasad Jindal. On that date 260 Ltrs. Kerosene oil was shown out of which 40 Ltrs. Kerosene oil was short. Remaining 220 Ltrs. Kerosene oil should have been in the shop. The sale on that date was nil but there was no kerosene oil in the shop. 14.43 quintals common rice, 2.50 quintals super fine rice and 19 Kg sugar were found 5 in the shop, which were taken into possession. Later on which was given to shopkeeper. The inspection note, recovery memo and supardginama was prepared on the spot, which is Ext.Ka-1. He also signed on it. Two sale registers were also taken into possession which are Ext.1 and Ext.2. Besides this, ration card, register and stock register were also taken into possession. Apart from this, three ration cards, recovered from the shop, were also taken into possession, which are Ext.5, 6 and 7. The receipt of these documents were made which is Ext.Ka-2. Thereafter, the three-wheeler containing barrel of 220 Ltrs. Kerosene oil along with Salesman Sanjay Kumar, Ambedkar and Shoorvir Singh was taken to Police Station, Dalanwala and a written report was got prepared. That report is Ext.Ka-3. The case was registered in the police station. The accused and the case property were handed over to the Police Station. The case was registered for committing breach of The U.P. Kerosene Control Order and The U.P. Scheduled Commodities Distribution Order. 8. Thereafter, the statements of the accused/appellant and the co-accused persons (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 9. Sri Sandeep Tandon, learned counsel for the accused/appellant has submitted that he does not want to challenge the conviction of the accused/appellant as the conviction imposed upon the accused/appellant u/s 3/7 of the Act is correct and justified. As per the evidence of P.W.1 S.P. Shukla, District Supply Officer, Dehradun on 31.1.1991 at 01:30 P:M, residents of Chander Road 6 complained that a drum of 220 Ltrs. Kerosene oil loaded in three-wheeler No. UGA 9406 is being sold in black market from the fair price shop of Raghunath Prasad Jindal and the residents of Chander Road has intercepted the said three-wheeler at Himani Gas Chauraha. On this information, S.P. Shukla, D.S.O. alongwith Inspector Jareef Hussain and Senior Inspectors Sri Shukla and Sri Bahuguna reached on the spot. There they found that 220 Ltrs. Kerosene oil was loaded in the three-wheeler. He made enquiries from Shoorvir Singh, driver of the three-wheeler and recorded his statement, who told him that the said Kerosene oil was given to him by the Sanjay Kumar, Salesman of Raghunath Prasad Jindal and he (driver) was taking that kerosene oil to the Chips Factory of Sunil Jain. The statements of Sanjay Kumar, Salesman were also recorded on the spot. Thereafter, S.P. Shukla inspected the shop of the accused/appellant Raghunath Prasad Jindal. It was further deposed that on that date 260 Ltrs. Kerosene oil was shown out of which 40 Ltrs. Kerosene oil was short. Remaining 220 Ltrs. Kerosene oil should have been in the shop. The sale on that date was nil but he found no kerosene oil in the shop. 14.43 quintals common rice, 2.50 quintals super fine rice and 19 Kg sugar were found in the shop, which were taken into possession. Later on which was given to shopkeeper. The inspection note, recovery memo and supardginama was prepared on the spot, which is Ext.Ka-1. Thereafter, the three-wheeler containing barrel of 220 Ltrs. Kerosene oil along with Salesman Sanjay Kumar, Ambedkar and Shoorvir Singh was taken to Police Station, Dalanwala. After that the report (Ext.Ka-3) was lodged by S.P. Shukla, D.S.O. Thus, from the aforementioned discussion, it is proved that the accused/appellant has violated the provisions of The U.P. Kerosene Control Order, 1962 and The U.P. Scheduled Commodities Distribution Control Order, 1990 and has committed the offence punishable u/s 3/7 of the Act. 7 10. From the above said facts and circumstances, the prosecution has established it case beyond reasonable doubt against the appellant u/s 3/7 of the Act and the conviction awarded by the trial court is justified and as per the law. I also concur with the view taken by the Special Judge (E.C. Act), Dehradun while convicting the accused/appellant as stated above. 11. Learned counsel for the appellant further submitted that the appellant Raghunath Prasad Jindal is 68 years’ old and has become blind now and is also ailing with serious diseases. He further submitted that the appellant is first offender and therefore he prayed that the appellant should be released on probation of good conduct under Section 360 Cr.P.C. Reliance is placed on paras-3 and 4 of an Order rendered by Hon’ble Supreme Court in the case of “Harivallabha and Another Vs. State of M.P.”, reported in 2005 SCC (Cri) page 1518, which reads as under: - “3. Learned counsel appearing on behalf of the appellants submitted that the appellants are first offenders and in the facts and circumstances of the case they should have been dealt with under the provisions of Section 360 of the Code of Criminal Procedure, 1973 (for short “the Code”) and the High Court reduced the sentence of imprisonment from three years to three months without recording any reasons, as required under Section 361 of the Code, which lays down that for special reasons to be recorded, a court can refuse to release a person on probation of good conduct under Section 360 of the Code. In our view, in the facts and circumstances of the present case, the appellants should have been dealt with under the provisions of Section 360 of the Code. 8 4. Accordingly, the appeal is allowed in part and while upholding the conviction and sentence of fine awarded to the appellants, sentence of imprisonment awarded against them is set aside and the trial court is directed to deal with them under the provisions of Section 360 of the Code. The appellants, who are on bail, are discharged from the liability of bail bonds.” 12. Keeping in view all the facts and circumstances of the present case, I am of the view that the accused/appellant be released on probation of good conduct u/s 360 of Cr.P.C. 13. For the reasons recorded above, the appeal is partly allowed. The judgment and order dated 22.2.1994 passed by Special Judge (E.C. Act), Dehradun in Criminal Case No.4/1991, State Vs. Sanjay Kumar & others, is confirmed as far as the conviction of the accused/appellant Raghunath Prasad u/s 3/7 of The Essential Commodities Act, 1955 and sentence of fine of Rs.10,000/-, is concerned. However, the sentence of imprisonment awarded against him is set aside and the trial court is directed to deal with him under the provisions of Section 360 Cr.P.C. The appellant, who is on bail, is discharged from the liability of bail bonds. 14. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 17.06.2009 RG