CRIMINAL APPEAL No.244 OF 1992 --------- Against the Judgment and order dated 18th of August, 1992, passed by Sri Kunjalsai Miru Toppo, Special Judge, E.C. Act, Darbhanga in Tr. No. 10 of 1987/ G.R. Case No. 1971 of 1987. ---------- SHANKAR MEHTA ……………Appellant Versus STATE OF BIHAR ……………Respondent ********* For the Appellant : Sri Ajay Kumar Thakur, Advocate For the Respondent : Sri Dashrath Mehta, A.P.P. ****** P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ******** Dharnidhar Jha, J. The solitary appellant Shankar Mehta was found carrying four tins full of kerosene oil, allegedly measuring sixty four litres, while traveling on a rickshaw. The informant of the case who happens to be an Assistant Sub Inspector of Town Police Station, Darbhanga along with another officer of his rank, namely, Jai Prakash Rai and a Havildar Sarfuddin Khan stopped the rickshaw, made search and seized the tins by preparing seizurelist, Exht. 2. He, thereafter, took the appellant in custody and lodged his report Exht. 3, on the basis of which, the first information report of the case, Exht. 4, was drawn. The investigation was handed over to the same informant who, after close of the same, sent up the appellant for trial for committing the offence under section 7 of the Essential Commodities Act (E.C. Act) as being found in possession of more than twenty litres of the commodity, could be violative of the provisions of Bihar Trade - 2 - Articles (Licences Unification) Order, 1984 (hereinafter referred to as the ‘Unification Order’), an order issued u/s 3 of the E.C. Act. 2. The appellant pleaded not guilty on accusation being explained to him and challenged the story of search and seizure, besides pleading that it could be a case of false implication as he being connected with trade in transport, did not allow the police officers to travel gratis in buses. 3. The learned Special Judge, Darbhanga, while holding the trial of the appellant, considered the evidence of seven witnesses produced by the prosecution before him and some of the documents in the light of the defence and held the appellant guilty of having violated the order duly promulgated under the provisions of Unification Order which could be violative of the provision of section 3 of the E.C Act and, as such, sentenced the appellant to suffer rigorous imprisonment for one year after being found guilty of committing that offence. 4. The above judgment and order of conviction passed on the 18th day of August, 1992 in Trial No. 10 of 1987 (G.R. Case no. 1971 of 1987) is being assailed herein. 5. I have heard Sri Ajay Kumar Thakur, learned counsel appearing on behalf of the appellant and Sri Dashrath Mehta, learned A.P.P. for the state. 6. The first attack set up against the judgment and order of conviction and sentence is that the learned Judge has not mentioned in judgment as to what order was promulgated for fixing a storage limit - 3 - of kerosene oil and how it was violated so as to making the act punishable under section 7 of the E. C. Act. It was contended that without going into the factual matrix of the case as regards the evidence of witnesses which definitely suffers from many pitfalls, a simple legal point on the jurisdiction of an officer in the rank of Assistant Sub Inspector to make the search and seizure could indicate that the whole approach of the learned Judge was erroneous. 7. Learned Public Prosecutor has rejoined the argument of the learned counsel for the appellant by submitting that the learned Special Judge assigned good and sound reasons while discussing the evidence and material on record and was fully justified in acting upon them so as to recording the guilt of the appellant. 8. If one could go through G.S.R. No. 9 dated the 19th April, 1984, one could find that it was the notification by which the Unification Order was brought into force by virtue of clause 1(3) which enforced the provisions of the Unification Order instantaneously. It may be found by definition of the term ‘Trade Article’ as it has been defined in clause 2 (t), that the articles which are enlisted in Schedule I and Schedule II of the Unification Order are such article which are covered by the provisions of the said order. Schedule I, Part E, Item no. 2 could indicate that kerosene oil has been put under the heading ‘other articles’ which could be within the meaning of the term ‘trade articles’ as defined by Clause 2 (t) of the Unification Order. So far as the other terms in the definition clause of the Order are concerned, the court is concerned mainly with the term - 4 - ‘retail dealer’ as it appears defined by clause 2 (p) which defines a person engaged in the business of purchase, sale or storage of any article [specified in Schedule I] for purpose other than personal consumption within the storage limit fixed by the Government from time to time. 9. The State Government is empowered by virtue of powers vested by the Unification Order in it by its clause 18 to fix the storage limit by issuing a notification in official gazette in consultation with the Central Government. G.S.R. No. 47 dated 17th October, 1985 is the notification which was issued by the State Government in consultation with the Central Government fixing different stock limits for different dealers or persons or association of persons in respect of classified cities as indicated by that particular notification and if one comes to paragraph 11 of that notification, one could find that a domestic consumer of kerosene oil means a person who, at any time, holds stock of kerosene oil for domestic purpose not exceeding twenty litres. Sub paragraph (b) of that particular paragraph 11 speaks about non domestic consumer and that may indicate that anything up to 15 kilo litres, if stored by a person, could bring him into the purview of non-domestic consumer. 10. After considering all these provisions, what appears to me is that if a person is found in possession of kerosene oil in excess of twenty litres, then the statutory presumption could be raised against him that he had purchased it and that the purpose was to sell it. Thus, there could not be any doubt that the very possession by a person of - 5 - any commodity in excess of the fixed storage limit could bring him into the purview of the term retail dealer and that by itself, could be treated as an act violating the provisions of section 3 of the Essential Commodities Act which is made punishable under section 7 of the Essential Commodities Act. So, the contention that the learned Judge was not pointing out as to what order was violated, is not acceptable to this court inasmuch as mere non mentioning of the provision or any order or any such notification as relates to such matters as presently in hand, could not be wiping out the very act which could, in effect, be a violation of a particular provision of an order duly promulgated and which could, alternatively, be punishable as an offence. 11. The learned Judge has also noted in his judgment that there were some defects in the prosecution evidence but what he has mentioned is that those defects were trifle and those were needed to be ignored. That does not appeal to me simply for the reason that if an evidence suffers from some material defect, then the very acceptability of such an evidence could not be available to a court. The evidence has to satisfy the conscience of the court at the touchstone of reasonableness which could further be tested in the light of different provisions of the Evidence Act including section 114 of the Evidence Act which directs drawing up of presumption taking into account the ordinary human conduct, natural event and other such things. If an evidence appears unnatural, if an evidence appears coming from motivated corner or if an evidence appears made inadmissible and irrelevant by any provision of the Evidence Act, the - 6 - court could not ignore it as trifle matters so as to going on to convict a man. Recording conviction of a person of any offence on such trifle evidence might be doing the highest injustice to him because it may take many years to challenge it successfully. 12. That apart, one could say with some amount of reasonableness that the learned Judge was oblivious of the provision of Clause 30 of the Unification Order which empowers different officers of the Union and the State for holding search and making the seizure of different trade articles. If one could consider that particular provision, among the police officers any officer above the rank of Assistant Sub Inspector (ASI) has been empowered to enter into any premise to make a search and seize a trade article which could be found stored in violation of the provisions of the Unification Order. It was rightly contended that the informant was an ASI and he was not within that rank of officers of the police department who were statutorily empowered to enter and to make search and seizure. The worst as appears befalling in the case is that the same informant who had lodged the report, was entrusted with the investigation of the case. One could not say more than that such an officer who has to investigate his own report will not leave any stone unturned to ensure that foolproof materials are created and placed before the Judge to justify his report as acts of investigation and ultimately to obtain an order of conviction. It has regularly been pointed out that such an entrustment of investigation should be refrained from by the investigating agency. - 7 - 13. After having been taken through the materials on record of the trial court and after considering the submissions of the parties, I find that the judgment and order of conviction as recorded against the appellant can not be sustained in law on reasons I have just pointed out. Accordingly, the same is hereby set aside. Appeal is allowed. The appellant is acquitted. Appellant appears to be on bail. He is discharged from the liabilities of his bail bond. (Dharnidhar Jha, J) Patna High Court The 3rd March, 2009 A.F.R./Anil/