CR.A/1263/1992 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1263 of 1992 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 ? ========================================================= SAURASHTRA FERTILIZERS & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PM THAKKER, Sr.Advocate, with Ms.Khyati Hathi for Appellant(s) : 1 - 2. MS HANSA PUNANI, APP for Opponent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/01/2008 ORAL JUDGMENT The appeal arises out of a judgment and order dated 24th December 1992, rendered by the learned Additional Sessions Judge, Bhavnagar in Criminal Case CR.A/1263/1992 2/4 JUDGMENT No.18/86. 2. The appellants, original-accused, were charged with offence under section 7(1)(A)(II) of the Essential Commodities Act. The learned additional Sessions Judge, convicted both the accused. Accused No.1, a proprietary concern was fined Rs.1,000/-. Accused No.2, held to be the person in charge of accused No.1 firm as provided under section 10 of the Essential Commodities Act, was sentenced to 3 months simple imprisonment and also imposed fine of Rs.1,000/-. 3. Learned Sr. Advocate Shri P.M.Thakker appearing with Ms.Khyati Hathi for the appellants, at the outset, submitted that insofar as appellant No.1 is concerned, the fine has already been paid. He,therefore, did not seriously press the appeal qua conviction of appellant No.1. Even otherwise, I find that the authorities under the Essential Commodities Act had taken samples of fertilizers lying in the premises of the firm and upon analysis found that the same flouted the required percentage of nutrients. 4. The appeal is, however, focused in so far as appellant No.2, original accused No.2 is concerned. It was contended that the prosecution failed to establish that appellant No.2 was the person in-charge of the firm at the time when the contravention was committed. My attention was drawn to para 8 of the judgment under challenge. It was CR.A/1263/1992 3/4 JUDGMENT observed by the learned Judge that as per witness Valjibhai (PW-3, Ex.16), at the time of inspection, appellant No.2 was present at the premise of the firm. As per Dr.Motisara (PW-4, Ex.21) also, appellant No.2 was present at that time. It was further observed that the authorities issued notice Ex.17. In response to notice Ex.17, appellant No.2 had given reply Ex.18. This reply was on the letter head of the firm and he had signed the reply as the proprietor of the firm. In the reply, he had taken defence regarding the samples being moist. From the reply, the learned Judge concluded that appellant No.2 was the proprietor of the firm and had replied to the notice in the said capacity. In view of the above evidence, learned Judge was of the opinion that appellant No.2 was the person in-charge of the firm when the alleged contravention took place. 5. My attention was drawn to the deposition of the said two witnesses, namely, Valjibhai, PW-3 and Dr.Motisara, PW-4. My attention was also drawn to notice Ex.17 and reply Ex.18. 6. From the deposition of Dr.Motisara, it can be seen that contrary to what is recorded by the learned Judge, Dr.Motisara did not state that appellant No.2 was present when the inspection took place. Further, Ex.17 notice was addressed to the firm and it was not received by appellant No.2. Ex.18 reply was also not signed by appellant No.2. This is a crucial factual parameter lost sight of by CR.A/1263/1992 4/4 JUDGMENT the learned Judge. In fact, the learned Judge has misdirected himself when he concluded that Ex.18 reply was given by appellant No.2. 7. In view of the above discussion,I find that the conclusion of the learned Judge that appellant No.2 was the person in-charge of the firm as required under section 10 of the Essential Commodities Act was not based on evidence on record. It is true that in the statement under section 313 of the Criminal Procedure Code, appellant No.2 did not take up this defence and tried to explain the defects in taking the samples and the reasons why the analysis revealed deficiencies, nevertheless, the prosecution had to lay foundation to demonstrate that appellant No.2 was the person in-charge of the firm when the contravention took place. In my view, therefore, the conclusions of the learned Judge were based on defective parameters as noted hereinabove. 8. In the result, conviction and sentence of appellant No.2 is set aside. Bail bond stands discharged. Conviction against appellant No.1, however, is maintained. The appeal stands disposed of accordingly. (Akil Kureshi, J.) (vjn)