IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1312 OF 2001 (OLD NO.1721/1992) Smt. Laxmi Maheswari W/o Sri Hari Sharan Daas R/o Garighat, Kotdwar, P.S. Kotdwar, District-Pauri Garhwal ……… Appellant Versus The State ……… Respondent Dated: December 3, 2008 Sri Kurban Ali, 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 27.7.1992 passed by Special Judge/Sessions Judge, Pauri Garhwal in Special Criminal Case No.7/1987, State Vs. Smt. Laxmi Maheswari, whereby the learned Special Judge/Sessions Judge has convicted the appellant/accused-Smt. Laxmi Maheshwari for the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) for committing breach of provisions of the Uttar Pradesh Foodgrains and Other Essential Articles Distribution Order, 1977 (hereinafter to be referred as the Order) and was sentenced to pay a fine of Rs.1,000/- (rupees one thousand). It was also directed that the fine shall be paid within 15 days on furnishing a personal bond of Rs.1,000/- by her. However, the co-accused Harsharan Dass was acquitted by the trial court of the charge levelled against him. 2. I have heard Sri Kurban Ali, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that by the order dated 13.02.1987 of District Supply Officer, Pauri, Sri B.S. Bisht, Supply Inspector lodged the F.I.R. at Police Station Kotdwar against the appellant/accused Smt. Laxmi Maheswari due to irregularities committed by her in her fair price shop. It was also averted that in compliance of the order dated 16.10.1986 of Regional Food Officer, Sri B.S. Bisht, Supply Inspector inspected the shop of appellant/accused Smt. Laxmi Maheshwari on 10.11.1986 and he presented the investigation report to Regional Food Officer. During the inspection, he found the following irregularities:- (i) The articles mentioned in para-1 of the F.I.R. were not shown in the Ration Card No.35538/138 of Smt. Savitri Devi but were shown in the Sale Register and Sale-cum-Check Register by the appellant/accused. It was also averted that the ration card holder Smt. Savitri Devi has left Kotdwar in the year 1984 and has gone to her village in District-Chamoli and Smt. Savitri Devi is not living in Kotdwar. (ii) In Ration Card No.35672/454451 (272) of Sri Sarveshwar Prasad, entry with regard to quantity of sugar was not shown but in the Sale Register 6kg sugar was shown on 27.6.1986. (iii) Articles shown in para-3 of the F.I.R. were shown in the Sale Register but the entry with regard to quantity of the sold items were not shown in Ration Card No. 37287/4541691 (S.No.300) of Sridhar Prasad. (iv) The sale of the items mentioned in para-4 of the F.I.R. was shown in the Sale Register but the amount recovered from the customers were not shown in the sale register. (v) In para-5 of the F.I.R. it was shown that the sale of one item to one person was shown in two or three ration cards by the seller however an item can be issued only once to the original card holder as per law. With the same averments, F.I.R. was lodged by P.W.1 Sri B.S. Bisht, Supply Inspector on 19.2.1987 at Police Station Kotdwar, i.e., Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. was prepared by Head Mohirror. That Chik F.I.R. is Ext.Ka-4. Investigation of this case was entrusted to Sri B.R. Arya, S.S.I., who during the course of investigation has received the letter Ext.Ka-2 from P.W.4 Rajendra Singh Panwar. For the prosecution of the above said offence, sanction was granted to him by District Magistrate, Garhwal on 19.06.1987, i.e., Ext.Ka- 3. During the course of investigation, the I.O. received the ration cards of Smt. Savitri Devi, Sridhar Prasad and Sri Sarveshwar Prasad i.e. Ext.1, Ext.2 and Ext.3 respectively. The I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused Smt. Laxmi Maheswari and the co-accused Harsharan Dass u/s 3/7 of the Act. That charge sheet is Ext.Ka-5. 4. In order to prove its case, the prosecution has examined P.W.1 Bishan Singh Bisht, Supply Inspector, P.W.2 Sridhar Prasad, P.W.3 Sarveshwar Prasad, P.W.4 Rajendra Singh Panwar and P.W.5 Prem Singh Rawat, Nayab Tehsildar. 5. After that the statement of the appellant/accused and the co-accused (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, in defence, they have not produced any oral or documentary evidence. 6. After hearing learned counsel for the parties and appreciating entire evidence available on record, learned Special Judge/Sessions Judge convicted and sentenced the appellant/accused as above. However, the co-accused was acquitted by the trial court of the charge levelled against him. 7. Further to prove its case, the prosecution has examined P.W.1 Bishan Singh Bisht, who has stated that in February 1987 he was posted as Supply Inspector in Kotdwar. He further stated that he has investigated the case on the direction of the Regional Food Officer and the investigation report is not in the file. On the basis of investigation, he lodged the F.I.R. at Police Station, Kotdwar, i.e., Ext.Ka-1. He further stated that whatever irregularities he has found in the investigation he has mentioned in the F.I.R. He further stated that the Ration Card No.35538/138 was in the name of Smt. Savitri Devi and in this ration card that items were not entered which were shown to be issued on different dates. He has proved the ration card of Smt. Savitri Devi Ext.1. He has further stated that the card holder Smt. Savitri Devi was not living at Kotdwar on the date of incident and he has received the ration card from the landlord of Smt. Savitri Devi. He further stated that the entries were also not made in the ration card Ext.2 of Sridhar Prasad and in the ration card Ext.3 of Sarveshwar Prasad which were shown to be issued in their names. The sale register of the shop of the appellant/accused is Ext.4 and the other register is Ext.5. He has further stated that on the basis of this sale register and other registers he has made the investigation of the ration card. The appellant/accused was the owner of the shop. In the cross-examination he has stated that paper on which the Regional Food Officer has given him direction is not in the file. He further stated that he does not know the rules and notifications on the basis of which he has investigated the matter. He further stated that he has lodged the F.I.R. by the order of District Magistrate but that order is not in the file. 8. P.W.2 is Sridhar Prasad, who has stated that he was having a ration card of the shop of the appellant/accused Smt. Laxmi Devi Maheswari and whatever articles he used to purchase from her shop, entry regarding it was made in his ration card. He further stated that the Supply Inspector has not taken his ration card from him. 9. P.W.3 is Sarveshwar Prasad, who has stated that in the year 1985 he was living in Kotdwar. He has further stated that his ration card was of the shop of appellant/accused Smt. Laxmi Maheshwari and he does know whether he has purchased any item from the shop of the appellant/accused on 27.6.1986 or not. If he has purchased then the entry would have made in his ration card. He further stated that he has not signed in the sale register on 27.6.1986. 10. P.W.4 is Rajendra Singh Panwar, who has stated that since 1984-85 Smt. Savitri Devi was not in Kotdwar. He further stated that he and Smt. Savitri Devi used to purchase foodgrains and other articles from the fair price shop of the appellant/accused. He further stated that on 16.10.1986 he has moved an application before the Regional Food Officer. That application is Ext.Ka-2. He has further stated that the ration card of Smt. Savitri Devi is Ext.1 and he has handed over it to the Investigating Officer during the investigation. 11. P.W.5 is Prem Singh Rawat, Nayab Tehsildar, Kotdwar, who has stated that in the year 1987 he was posted Kanugo Thalisain and he has seen the then District Magistrate V. Venkatachanam while writing and he is familiar with his signatures. He has identified the signatures of the then District Magistrate V. Venkatachanam on the paper No.7 d. That document is Ext.Ka-3. 12. After that the statement of the appellant/accused and the co-accused (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, in defence, they have not produced any oral or documentary evidence. 13. Before further discussion it is pertinent to mention Clause 2(b), 2(c), 2(f), 25 and 26 of the said Order, which are reproduced as under:- “2-(b) ‘authorised retail distributor’ means a person appointed as ‘Agent (Retail)’ by the District Magistrate, City Magistrate or Sub- divisional Magistrate, for sale of Government foodgrains and other essential articles; 2-(c) ‘District Magistrate’ includes an officer authorised in writing by the District Magistrate to perform all or any of his functions under this Order; 2-(f) ‘Food Officer’ means the Regional Food Controller, the District Magistrate, District Supply Officer or and other officer authorised by the State Government in his behalf;” 25-Power of entry, search, seizure, etc.-(1) The Food Officer, all the Deputy Town Rationing Officers and Area Rationing Officers may, within their respective jurisdictions in the State, with such assistance, if any, as they think fit- (a) require the owner, occupier or any other person in charge of any place, premises, vehicles or vessel in which he has reason to believe, that any contravention of the provisions of this Order has been, is being or is about to be committed, to produce any book, account or other documents showing transactions relating to such contraventions ; (b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order has been, is being or is about to be committed ; (c) examine and seize any books of accounts and documents which in the opinion of such officer may be useful for, or relevant to, any proceedings under this Order and return such books of accounts and documents to the person from whom they were seized after copies thereof, or extracts therefrom as may be considered necessary and certified by that person to be correct, have been taken ; (d) seize any foodgrains or essential articles if he is satisfied that there has been contravention of this Order; (e) send a report as provided in Section 6-A of the Act to the Collector of the District in which such seizure is made and the Collector may thereafter proceed to confiscate the foodgrains, other essential articles, animals, vehicles, vessel or other conveyance so seized in accordance with the provisions of the Act. (2)-The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Act No.2 of 1974), relating to search and seizure shall, as far as may be apply to search and seizure under this clause. 26-Power of State Government to authorise any person to inspect, etc.-The State Government may authorise any person other than those referred to in clause 25 to perform all or any of the functions detailed below: (a) to inspect any stocks of foodgrains or any other essential articles, books, accounts or other documents pertaining to any foodgrain or any other essential article with a view to ensuring that no contravention of this Order is being made and for purposes of such inspection enter any premises used or believed to be used for the sale or distribution or storage or foodgrains or other essential articles ; (b) to require any person to make any statement or furnish any information or produce any document or article in his possession or under his control relating to the purchase, sale, distribution or storage of any foodgrains or other essential article and any person so required shall comply with such requisition ; (c) to inspect any identity card or require any person to give any information in regard to such members of his household as are included in the identity card”. 14. Sri Kurban Ali, learned counsel for the appellant/accused has submitted that P.W.1 Sri B.S. Bisht, Supply Inspector was not authorized for the search and seizure under Clause 25 of the Order. I find substance in the argument raised by learned counsel for the appellant/accused as per Clause 2(b) of the above- said Order, the appellant/accused was authorised retail distributor. Further Clause 2(c) says ‘District Magistrate’ includes an officer authorised in writing by the District Magistrate to perform all or any of his functions but in the present case P.W.1 Sri B.S. Bisht, Supply Inspector has not filed any written order of the District Magistrate which can show that he was authorised in writing by the District Magistrate to perform all or any of his functions. Further Clause 25 of the above-said Order says Food Officer, all the Deputy Town Rationing Officers and Area Rationing Officers have a power of entry, search and seizure. The definition of Food Officer is given in Clause 2(f) which says ‘Food Officer’ means the Regional Food Controller, the District Magistrate, District Supply Officer or and other officer authorised by the State Government in his behalf. Thus, from the reading of the aforesaid clause of the Order, Supply Inspector does not come under the definition of Food Officer, Deputy Town Rationing Officer and Area Rationing Officer thus he was not authorised for entry, search and seizure as per the provisions of the above-said Order. Clause 26 of the said Order says State Government may authorise any person other than those referred to in clause 25 to perform all or any of the functions detailed in (a), (b) and (c) of Clause 26 but in the present case, the prosecution has not filed any such authorisation which shows that P.W.1 Sri B.S. Bisht, Supply Inspector was authorised for search and seizure. Thus, from the above-said discussion, it is proved that P.W.1 Sri B.S. Bisht, Supply Inspector has got no power for entry, search and seizure and as per the above-said Order the entry, search and seizure made by him was illegal and without his power. 15. In view of the aforementioned discussion, prosecution has not proved the case beyond reasonable doubt against the appellant/accused Smt. Laxmi Devi Maheshwari u/s 3/7 of the Act. Therefore, the conviction and sentence as awarded by the trial court to the appellant/accused is not justified and as per law and is liable to be set aside. 16. For the reasons recorded above, the appeal is allowed. The judgment and order dated 27.7.1992 passed by Special Judge/Sessions Judge, Pauri Garhwal in Special Criminal Case No.7/1987, State Vs. Smt. Laxmi Maheshwari, is hereby set aside. Consequently, the conviction of the appellant/accused u/S 3/7 of the Act for committing breach of provisions of the Uttar Pradesh Foodgrains and Other Essential Articles Distribution Order, 1977 and sentence to pay a fine of Rs.1,000/- is also set aside. If the fine of Rs.1,000/- has been deposited by the appellant/accused then the same may be refunded to her after verifying from records. 17. Let a copy of this judgment, along with the record of the Court below, be sent back to the Trial Court. (Dharam Veer, J.) 03.12.2008 RG