IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 101 of 2002. Judgment reserved on : 7.5.2009. Date of decision: May 15, 2009. Luder Chand …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. S.S.Mittal, Senior Advocate with Mr. Dev Raj Dev, Advocate. For the Respondent : Mr. Anshul Bansal, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge The accused has come in appeal against the judgment dated 20.2.2002 passed by the learned Special Judge, Kullu in Sessions Trial No. 01/2001 convicting the appellant under Sections 3, 7 of the Essential Commodities Act, 1955 (for short ‘Act’) and sentencing him to rigorous imprisonment for 6 months and to pay fine of Rs. 2000/-. In default of payment of fine, the appellant shall further undergo imprisonment for one month. 2. The prosecution case, in brief, is that PW-1 Sesh Ram, District Food and Supplies Controller, Kullu on 26.4.1998 had received information that three-wheeler bearing registration No.HP-05-0934 had been brought for selling kerosene oil in black market. He inspected three- wheeler at Akhara Bazar, Kullu which was being driven by PW-2 Karam ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Singh, who disclosed that kerosene oil was supplied by accused, salesman Harijan Cooperative Society, Bashing (for short ‘Society’) to PW-4 Hari Singh. The kerosene oil 150 litres was kept in six containers of twenty litres and one container of thirty litres. The kerosene oil was purchased at the rate of Rs. 3/- per litre from appellant. The kerosene oil was seized and handed over to PW-6 Jagdish Sharma, depot-holder on supardari vide memo Ex.PW-1/A. PW-1 Sesh Ram checked the stock, sale register of the Society and found that the register was incomplete. The three registers Ex.P1, Ex.P-2 and Ex.P-3 were seized vide memo Ex.PW-1/B. The bills Ex.P-4 and Ex.P-5 under which the kerosene oil was purchased by the Society were also taken into possession vide memo Ex.PW-1/C. The kerosene oil 150 litres found in stock was also seized and entrusted to appellant vide memo Ex.PW-1/C. The statements of Hari Singh and appellant were recorded by District Inspector and attested by District Food and Supplies Controller. 3. On 27.4.1998 PW-1 Sesh Ram had addressed a complaint Ex.PW-1/G to SHO, Police Station, Kullu and on that basis, FIR Ex.PW- 11/A was registered by PW-11 Parma Nand. During investigation, three- wheeler was taken into possession vide memo Ex.PW-1/H. The kerosene oil containers were taken from supardar Jagdish Sharma, PW-6 vide memo Ex.PW-1/J. The samples in nips were separated from seized kerosene oil, sealed and sent for chemical analysis. The analyst report Ex.P13/C certified that the samples were of kerosene oil. On completion of investigation, challan was presented. The notice of accusation was put to appellant under Sections 3, 7 of the Act, to which he pleaded not guilty and claimed trial. The prosecution has examined 13 witnesses and has also placed on record some documents. The statement of appellant was recorded under Section 313 Cr.P.C., he denied that he was working as salesman of the Society or he sold kerosene oil to Hari Singh. One Uttam 3 Ram was examined in defence. The learned Special Judge, ultimately convicted and sentenced the accused, hence the present appeal. 4. I have heard Mr. S.S.Mittal, Senior Advocate, learned counsel for the appellant and Mr. Anshul Bansal, learned Additional Advocate General for the State and have also gone through the record. Mr. Mittal has submitted that initially the case against the appellant was two fold, (i) the accused had not kept account of 4200 litres of kerosene oil as salesman of the society and (ii) the accused had sold in black market 150 litres of kerosene oil to PW-4 Hari Singh who was not member of the Society. The allegation of not accounting of 4200 litres of kerosene oil has not been proved before the learned trial Court and the trial Court has recorded a finding that there is no evidence that 4200 litres of kerosene oil was found less in the stock. In so far allegation that accused has sold 150 litres of kerosene oil in black to PW-4 Hari Singh, the learned Senior Advocate has submitted that the prosecution has miserably failed to prove this part of the case also. He has submitted that the learned Special Judge has mainly relied Ex. PW-1/E and Ex. PW-1/F for convicting the accused, but these statements have not been proved and are highly suspicious. He has submitted that it has not been proved that accused was salesman at the relevant date and time with the Society. The learned Additional Advocate General has supported the impugned judgment. 5. Ex.PW-1/A is the supardari memo of six containers and one tin of kerosene oil by PW-1 Sesh Ram which were recovered from Tempo No.HP-34-0934 and handed over to Jagdish Chand. Ex.PW-1/B is the recovery memo of Stock Register Kerosene Oil, sale register of kerosene oil, ration card registration register, Bill No.781 dated 2.4.1998, Bill No. 2729 dated 25.4.1998 by PW-1 Sesh Ram. Ex.PW-1/E is the statement of Hari Singh. Ex.PW-1/F is the statement of Luder Chand. Ex.PW-1/G is the complaint dated 27.4.1998 addressed to SHO, Police Station, Kullu. Ex.PW-1/J is the recovery memo of seven containers and 4 samples of kerosene oil during investigation by investigating officer from Jagdish Sharma. Ex.PW-1/K is the recovery memo of one nip of kerosene oil which was taken from one barrel of kerosene oil. 6. PW-1 Sesh Ram has stated that from 21.6.1997 to 8.5.2000 he was posted as District Food and Supplies Controller, Kullu. On 26.4.1998 at 3.00 p.m. he received information that three wheeler bearing No.HP-05-0934 was taking kerosene oil for sale in black. He and Inspector Tirth Ram went to bus stand and at about 5.00 p.m. three wheeler came from Bashing side. The tempo driver disclosed his name Hari Singh. He told that he had brought the kerosene oil from Luder Chander, Secretary- cum-Salesman, Harijan Co-operative Society, Bashing. He was carrying kerosene oil to Hari Singh, dhaba owner. The kerosene oil was 150 litres in six containers of 20 litres each and one container of 30 litre. He told that the kerosene oil was purchased at Rs.3/- per litre from Luder Chand. The oil was seized and was handed over to Jagdish Sharma, depot-holder vide memo Ex.PW-1/A, he then checked the record of Society, Ex.P-1 is the Stock Register and Ex.P-2 is the sale register of the Society, Ex.P-3 is the ration card register. Ex.P-1, Ex.P-2, Ex.P-3 were taken into possession vide Ex.PW-1/B. The bills Ex.P-4 and Ex.P-5 were taken into possession vide memo Ex.PW-1/C. About 150 litres of kerosene oil of the society was taken into possession and entrusted to accused vide memo Ex.PW-1/C. District Inspector T.R.Thakur, recorded the statement of Sanjiv Kumar and was attested by the witness which is Ex.PW-1/D. The statement Ex.PW-1/E of Hari Singh and statement Ex.PW-1/F of Luder Chand were recorded by District Inspector, T.R. Thakur. On 27.4.1998, he submitted an application Ex.PW-1/G to SHO, Police Station, Kullu. The police took into possession kerosene oil containers vide Ex.PW-1/J, the three-wheeler was taken into possession vide memo Ex.PW-1/H. The sample was taken from the container vide memo Ex.PW-1/K. The authorization letter Ex.P-6 was taken into possession vide recovery memo Ex.PW-1/L. The accused had sold 5 kerosene oil without ration card to third person which is an offence. The sealed kerosene oil container is Ex.P-7. There is one BPL ration card register on record but on this no exhibit mark has been put. There is no ration card register Ex. P3 on record. 7. PW-2 Karam Singh was the driver of three-wheeler bearing No.HP-05-0935 in the year 1998. PW-3 Sanjiv Kumar is the owner of three- wheeler bearing No.HP-05-0934. PW-4 Hari Singh has stated that he did not see any person bringing kerosene oil. He did not support the prosecution and was declared hostile. In cross-examination conducted on behalf of the accused, he has stated that he does not know from where kerosene oil was brought. He has no personal knowledge. PW-5 Revti Sood, Manager, Sood and Company, Akhara Bazar, Kullu has stated that on 2.4.1998, they had sold 2500 litres kerosene oil to consumer society Bashing vide memo Ex.P-4. PW-6 Jagdish Chand has stated that on 26.4.1998, DFSC had entrusted 100-150 litres kerosene oil to him on supurdari. In cross-examination he has stated that Ex.P-7 to Ex.P-12 are not the same. PW-7 Pyar Chand has proved resolution Ex.PW-7/A Harijan Co-operative Society, Bashing. The accused under the resolution was authorized to collect and sell kerosene oil. PW-8 Brij Lal has stated that he has been working as Manager since 1996 and on 25.4.1998 they had supplied 2000 litres of kerosene oil to the society. PW-9 H.C. Narain Singh is a witness of recovery memo Ex.PW-1/J. PW-10 Chhotu Ram has stated that he was President of society in the year 1998 and is a witness to resolution Ex.PW-7/A and has stated that Ludar Chand was authorized to deal with the kerosene oil and ration. PW-11 Parma Nand Banyal, Dy.S.P. has stated that on receipt of complaint Ex.PW-1/G, FIR Ex.PW-11/A was registered. PW-12 Tara Chand Verma, is again a witness to resolution Ex.PW-7/A and authorization letter Ex.P-6. PW-13 ASI Lal Singh is the Investigating Officer. 6 8. The resolution Ex.PW-7/A indicates that Luder Chand on behalf of the society was authorized to sign papers and submit security with respect to kerosene oil to department. PW-10 Chhotu Ram has stated that in the year 1998 he was President of the society and vide resolution Ex.PW-7/A Luder Chand was authorized to deal with the kerosene oil and ration. The learned Special Judge in paragraph 20 of the impugned judgment has recorded a finding that on registers Ex.P-1 and Ex.P-2 certificates were recorded by accused himself as salesman of the society, which finding was not seriously assailed on behalf of the appellant at the time of hearing. In these circumstances, it can be safely held that in view of resolution Ex.PW-7/A, statement of PW-10 Chhotu Ram appellant Luder Chand was the salesman of the society for selling kerosene oil. 9. The prosecution case against the appellant is that he had sold 150 litres of kerosene oil to PW-4 Hari Singh illegally in violation of Himachal Pradesh Specified Essential Commodities (Regulation and distribution Order , 1979 (for short order) which is punishable under Section 7 read with Section 3 of the Act. The learned Special Judge has heavily relied on statements Ex.P-W-1/E and Ex.PW-1/F in recording a finding of guilt against the appellant. Ex.PW-1/E is the statement allegedly made by Hari Singh and Ex.PW-1/F is alleged statement of Luder Chand appellant. The learned Special Judge has also noticed the statement of PW-2 Karam Singh who has identified the signature of his father Hari Singh on Ex.PW-1/E. The learned Special Judge has observed that statement Ex.PW-1/F was given by accused to District Food and Supplies Controller, Kullu who was not a person in a authority. The case was at the stage of inquiry when Luder Chand made the statement Ex.PW-1/F to District Food and Supplies Controller. Therefore, statement Ex.PW-1/F would be admissible in evidence and such statement amounts to confession. The question is whether statements Ex.PW-1/E and Ex.PW-1/F have been proved by the prosecution in accordance with law. 7 The accused in his supplementary statement under Section 313 Cr.P.C. in response to question No.2 has denied that PW-1 Sesh Ram on 26.4.1998 got recorded his statement Ex.PW-1/F which was signed by him in presence of witnesses. 10. PW-1 Sesh Ram has stated that he along with Tirth Ram Thakur went to bus stand on 26.4.1998 at about 3 p.m. The statement of Hari Singh was written which was attested by PW-1. Luder Chand accused gave statement which was recorded by District Inspector and was attested by PW-1. PW-1 has not identified his signatures on Ex.PW-1/E and Ex.PW-1/F. Statement of Hari Singh is Ex.PW-1/E and of Luder chand is Ex.PW-1/F. PW-1 has not stated that statements Ex.PW-1/E and Ex.PW- 1/F were signed or attested by him in token of having been recorded in his presence. PW-1 has also not stated that statement Ex.PW-1/E and Ex.PW-1/F were read over by District Inspector Tirth Ram Thakur to Hari Singh and Luder Chand and thereafter they signed the respective statements. There is no certificate or note on statements Ex.PW-1/E and Ex.PW-1/F that these statements were read over to the persons who made the statements. PW-4 Hari Singh in cross-examination conducted by prosecution has contradicted PW-1 when he has stated that Ex.PW-1/E was recorded by DFSC whereas PW-1 has stated that Ex.PW-1/E was recorded by District Inspector T.R.Thakur, who was not examined by prosecution to prove statements Ex.PW-1/E and Ex.PW-1/F. In these circumstances, it cannot be said that Ex.PW-1/E and Ex.PW-1/F have been proved in accordance with law by the prosecution. 11. The kerosene oil was recovered from three wheeler No.HP-05-0934 as per the prosecution case. Ex.PW-1/A is the supardarinama vide which 150 litres kerosene oil was handed over to Jagdish Chand. There is no evidence that 150 litres kerosene oil was recovered from the conscious possession of Hari Singh. PW-3 Sanjiv Kumar owner of three wheeler No.HP-05-0934 has stated that Karam Singh 8 was the driver of the three wheeler in 1998. Karam Singh is none else but the son of Hari Singh against whom is the allegation that he purchased the kerosene oil from Luder Chand. PW-2 Karam Singh has stated that in the year 1998 he was not sent by his father to bring kerosene oil. He has not supported the prosecution and was declared hostile. The recovery memo Ex.PW-1/J indicates that 150 litres of kerosene oil in 7 cans was handed over to police. There is no recovery memo on record to show that 150 litres kerosene oil was recovered from Karam Singh when he was carrying said oil in Tempo No.HP-05-0934. PW-1 Sesh Ram has stated that driver of tempo had disclosed his name Hari Singh. The statement Ex.PW- 1/F has not been proved and therefore, it cannot be used against the appellant to show that 150 litres kerosene oil was sold by appellant to Hari Singh. There is no other worth believing evidence on record to show that Luder Chand in fact had sold 150 litres of kerosene oil to Hari Singh illegally. PW-4 Hari Singh has not supported the prosecution case. 12. The accusation against the appellant is under Section 3 / 7 of the Act. There is no reference of violation of order in the accusation. The complaint Ex.PW-1/G of PW-1 Sesh Ram, District Food and Supply Controller indicates violation of clause 4 of the order. The Section 173 Cr.P.C. report indicates violation of clause 4 of the order. The learned Special Judge in the impugned judgment has not referred either clause 4 or clause 6 of the order. The Para 14 of the impugned judgment indicates that accusation against appellant was that as salesman of the society he had sold to an unauthorized person 150 litres kerosene oil in black at the rate of Rs.3/- per litre. Such allegation according to learned Addl. Advocate General is covered by clause 6 of the order. The complaint Ex.PW-1/G and section 173 Cr.P.C. report indicate that appellant was prosecuted for violation of clause 4. The accusation put to appellant refers only Section 3 and Section 7 of the Act and no reference of clause 4 or 6 of the order has been stated in the accusation. The accusation put to 9 appellant was not clear and explicit. In these circumstances, the accused was prejudiced in preparing his defence. 13. The learned Special Judge has not properly appreciated the material on record and has relied inadmissible evidence in convicting and sentencing the appellant-accused under sections 3 / 7 of the Act. The prosecution has failed to prove commission of offence punishable under sections 3/7 of the Act against the appellant-accused. The impugned judgment is thus, liable to be set aside. 14. No other point was urged. 15. The result of the above discussion, the appeal is allowed. Judgment dated 20.2.2002 Passed by learned Special Judge, Kullu in Sessions Trial No.01/2001 is set aside. The appellant-accused is acquitted of the accusation under sections 3 / 7 of the Essential Commodities Act, 1955. The fine amount, if any, deposited by appellant-accused be refunded to him, his bail bonds are discharged. ( Kuldip Singh) Judge. May 15,2009 ( GR)