CR.A/1253/1993 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1253 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GHANSHAMBHAI DEVCHANDBHAI THAKKAR - Appellant(s) Versus RAJNIKANT PRAHALDJI TRIVEDI & 1 - Opponent(s) ========================================================= Appearance : MR PJ YAGNIK for Appellant(s) : 1, None for Opponent(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 02/04/2008 ORAL JUDGMENT Appellant is the original accused. By the impugned judgment and order dated 15.10.93, he was convicted for offence under section 3 read with section 7 of the Essential Commodities Act by the CR.A/1253/1993 2/4 JUDGMENT learned Special Judge, Ahmedabad (Rural) an sentenced to RI for 3 months and fine of Rs.500/-. In case of default of payment of fine, he was directed to undergo additional imprisonment of one month. 2. Under proper authorization, the Mamlatdar, Sanand Taluka lodged a complaint against the appellant herein on 10.12.91 alleging, inter alia, that the appellant on 7.2.91 was found selling controlled item kerosene in front of his house though he did not have license for the same. The Mamlatdar himself had gone for carrying out surprise check and detected the illegal activities of the appellant. He had taken down statements of various persons and also seized 170 liters of kerosene. 3. PW-1, Rajnikant Trivedi, who was the Mamatdar, Sanand at the relevant time was examined at Ex.8. He stated that on 7.2.91 when he had taken a surprise visit of village Makhiyav, he found that the accused in front of his house was distributing kerosene to members of public from kerosene tins lying there. He had seized the kerosene, drawn panchnama and also recorded the statements of persons present there. Such statements were produced before the Court at Ex.9 to 11 which included the statement of the accused himself. He stated that he had seized 11 fully filled kerosene tins and one tin containing 5 liters of kerosene. He also produced before the Court necessary authorization for filing the complaint against the accused as well as the order passed by the Collector confiscating the seized kerosene which is produced at Ex.16. CR.A/1253/1993 3/4 JUDGMENT In cross-examination, he stated that he could not with certainty state whether the house belonged to the accused or his brother. The defence tried to project the version that the brother of the appellant was engaged in plying matador for hire and the kerosene belonged to different farmers who wanted to travel in the matador. It may be noted that this was part of the explanation rendered by the appellant in response to the show cause notice issued by the Collector why the seized quantity of kerosene should not be confiscated. 4. It may be noted that panch witnesses had turned hostile and did not support the prosecution. 5. It may also be noted that the persons whose statements were recorded by the Mamlatdar were not examined. Though summons were sought from the Court, it is not clear why ultimately these witnesses were not examined. Be that as it may, from the evidence of the Mamlatdar, it is clear that the appellant was found selling kerosene outside his house to members of public. Admittedly, he did not have licence to deal in such commodity. The fact that kerosene was a controlled item and requires a license and permission from the Government for its purchase and sale is not seriously in dispute. The Mamlatdar had no previous enmity with the appellant and had no reason to falsely involve or implicate him. His testimony is cogent and reliable. No major contradictions have been extracted in the cross-examination. To corroborate his testimony, he also had seized 170 CR.A/1253/1993 4/4 JUDGMENT liters of kerosene from the spot and the Collector had also passed order confiscating the entire quantity of kerosene. Under the circumstances, so far as guilt of the appellant is concerned, there does not appear to be any doubt. 6. Under section 7(1)(a)(2) of the Essential Commodities Act, the offence attracts punishment for a term which shall not be less than 3 months, but which may extend to 7 years and also fine. Proviso, however, states that the Court may for any adequate and special reasons to be mentioned in the judgment impose sentence of imprisonment for a term of less than 3 months. 7. Learned counsel for the appellant, however, presented an affidavit of the appellant stating that this is the first offence and he is not involved in any other criminal case. Considering the said statement and also considering that nearly 17 years have passed since the date of the incident and the nature of conviction and sentence of the appellant, he is given the benefit of probation. He shall, therefore, not have to serve out the sentence. Fine is however enhanced to Rs.10,000/- (Rupees ten thousand only) which shall be paid latest by 30th June 2008. The appeal is disposed of in above terms. (Akil Kureshi, J.) (vjn)