xiv CREAEQAL A'?Pi§AL UNDEti iiilCTIDN 37}+(2‘) OF £114 CREHNAL 3" T) Fm {TETHT'FR T? CO TEE - ~ v.{wM‘Mm"N‘W.“WW FE = ’ 3}§‘THZ3 HIGH CDURT OF NADL‘IYA PREIESH Ar" J'ASgLPUlL w ca; APmAL NC: . l GS} ‘ / OF 1990. gi 1 {g§¥1amal :son of Bhanwa,rlal,&ged / K v4 5'0 years,! businessman, regideat of Bi$hr€n1nur,PS Jaina .» ‘x Distt .Ambik apur ,fiur guj a , ‘x ' 2. Narandra Kumar 'son of Jethamal, aged 22 years, r/o Bi$hrampur,Pi§ l _ Jainagz r , Distt .Surguj a,1‘}3 H; j . . 1.?PEY "4;:IT" (03E BAIL)’ ’ VS}. _ bTEI‘E OF M‘.P. . . BEiKPSi‘IQJii‘W gé ® HKGH CGLIRT Q2? £H§A’E‘T;SG;AR£-i AT E§§JM§?UR SB : HQN’BLE MR. JKESTICE FRITIXWKER DIWAKER €KAa EiaJGSl} 19€9i3 &P?’ELLA§¥ET Je‘ihamai 3r; Ar:.other V61‘S US RE$PGNEEE§ET 8mm cf Mad hva PraiR-sh Shn' Sonrabh Dang: counsel fer ths appellants. Shy; Pankaj Shzivas‘éava, RL. for tha- Siam. APPEAL '§E§I}ER $EC1‘EQ§I 3744.21 0? ’£‘§£$ €>E€LR€L aiEDGMEEé‘? waagge w; This ampsal is dirsciefi against ma gludgment ('{atéd & 1 .90 pa$seci by tbs Spsciai Judgs, Ambikapur m $9ecia1 Criminal Ca3€ No. 3J8? convicting LEE ammiiiant far the oi¥enc€ pumshabic um’iw‘ Saczion 3f? of {he Essmntia'i Commeditias; Act axx'i seamncmg him to uladsrgs rigorou$ imgmonmcnt fer 1 1/2 years and to WW fmc: of RxlOGG. in defauit. of fine m iiu‘fh.€:r undergo; rigowus mpxisammam far 3 months. 2. Bri€f facts (3f ths case am that at the re‘xevara timr: the. deceascd accused Jethamal was ntnnmg a shapin the name alid styla of Mm’lalakshmi Stores and was {ha stock :oguer ofkemsszm 03'} and appeEant No.2 Narsnrjira Kumor Emmi; the son of appeliailt No.1 used to assist‘hj'm in the husizmss mohx‘iing salLrg of km‘osene oi}. it is aliegod that one i32$wijeoi Smgh {P.Wnl" Chamall lal {P.W.—4§ agid Irfém. {not #Aarmned; mark: a written complaixlt on 27.985 to SEQ Surag‘pur Vida EXP/'2 meritiom'ng m%it mat the appallallt NQ. 1 is charging Extra mcmoy for selimg kerosene oil glad therefore 11e<:essary aciion be taker; against him. ii is . furTber edleged th. a: on £23, ovate of moment 72.6. on 29.9.8Ei a Trap part3 was oons’u‘mterfi by the S.D.O. Surajpur a11d the preparation for conductmg the ha? was made. it is afieged that Paramgeet Singh {RRM-l} had purchased two drums of E; Kez‘osane on by paying Rs. 4f) m addition to thta ac‘rua} amour}: of tha ksro$ei}5 ie. Rs. 4‘77 per drum, in mspmi of Chamw1 Lai, he hac'i paid L35 50 $Xtra for purchasing 1M0 drums of'kerosene Gil and likewifsa Irfan harj Ema R3. 50 exfra for two chums 0f Kemsene oi}. it is also rim case of the ymS€ uiisn ihai a? tha mm: of imp, appeEaxm No.1 was néar his nmviy constracfcc‘i house Whemas me. appdiaxzt no.2 war; sitting m ti a shop. Tha éxtra amount is aiiegiid to have rbEan givrm t0 app€iiemt no.1 by a}; :he thme comgalainants and when he was 116m“ his n€w houw in turn a pisaCf: of yapxar {papar siip} was issuad by the aypeHant Nal for handing ave? the same'ta appsHant No.2 with tha undsrstandjng that tbs kémsene Gil wauld be d€}ivere(1 by the appsliant no.2 aftgr recaiv'mg fix: actual amount of K€rossne 01'; a: thc ram a$ fixed by the CeHmtm”. Furthgr ii is the cass of the prosecuiion that the addifjmxai amount was given to appei'iant NO. 1 whsrsas tbg actual amount was givax to the apyéHant 1102 Whiie faking the deh’vmy of th€ said keroSene oil. x 3 SO as to hoid. the accusedjappaiiants guiitgh {he prosecution has examined as mam} as moo wimesses. Staiement of the accuseéfappoikmts wom also mcm'éeéi under Section 313 of the Coée of Chiminai Procedure 1'11 which they {lame-51 the charges 1eve§1er1 against them and pieaéed their innocence arm} faise imph‘cation in the. case. This apart, three de‘eoce witnesses have aiso been exomineci 33y mem in support of their ease. 4. After imarm'g fhe parties) the tu'ai Court has convicted iiie accusetif appeiiaats for the offences under Sections 3/7 of the Essential Commodities Act. Hence this appeal. s ) 5. Dun‘ng the pendeecy of the presem. appeal. apoellant No. 1 Jethamal has expirec? am? therefore ‘LEie Loreser‘t appea} confines only 1‘31 respect of apoeilant No.2 IEarenr'ira Komar. 6. it has been argued hy the oomlse} for the appe’iiam that: the main aiiegatioxxs are amiss: the oeceaew awoeiiam Jethamal and therefore the appelL-am; Naxemira Kumar dasetvas to be acquitted. He submits that the best avidence againsfc the appellant no.2 could be the existence of alleged piece of paper which was handed over by the deceaéeri accused] appellant‘to the complainaxlts for handing over the same to the appellant Narendra Kumar however no such piece of paper has been seized by the prosecution or any reference to the same has been given by the witnesses in the evidence. He Submits that even Paramjeet, Singh (P.W.-1) has admitted the fact that one piece of paper was handed over to him by the deceased accused/appellant Jethamal but the said fact was not informed to the trap party. 7i Chamanlal (P.W.-4) who had accompanied Palamjeet, in his court statement has denied. the handing over of any such paper to Paramjeet. Shri Dangi further submits that another complainant Irfan has not been examined by the e prosecution. He also submits that on the part of appellant No.2 there was no mens rea and there is absolutely no corroboration of four stages of crime i.e. intention, preparation, attempt and complete actl He further submits that even if some additional amount has been charged by the deceasedlaccused, the appellant Narendra Kumar cannot be held liable for the same because it is not the case of prosecution that both the accused persons have ever conspired to charge any additional amount from the complainants. He submits that the prosecution has utterly failed to prove the fact that it was Within the knowledge of the accused Narendra Kumar that his father Jethamal had taken extra money from the complainants. 8. On the other hand supporting the impugned ‘ judgment it has been argued by Shri Pankaj Shrivastava, r—r ' l . l counsel for the State, that at the relevant time there was i acute shortage of kerosene oil in the country and the said ‘ kerosene oil used to be distributed under the Government . control. He further submits that to avoid the black} marketing the rate of kerosene oil was tixed by the Collector ‘ ands once the additional amount has been charged by the i accuSEd pErsons th€ir conviction is in accoxtiagce with law. He furthsr submits that the dcceased accuse€1 Jethumal had charged addifional amount from an the three complainaats is. Paramjeetg Ch&anlal and h‘fajl ami in tum the kerosene 01'1 was given by the appellant Narendra Kumar. 9. I have heard counsel for the parties. The case of the prosecution is mainly based on the alleged piece of paper which was handed over by the deceased/accused Jethamal to the complainants and in turn the said paper was handed over to appellant Narendra kumar. However it is admitted position that no such piece of paper has been seized by the prosecution. Even Chamanlal P.W.-4 has denied the existence of any such piece of paper by saying that no piece of paper was handed over by Jethamal which was to be handed over to the appellant .Narendra Kumar. The other important witness of the prosecution could have been Irfan however he has not been examined. Even if the kerosene oil and some amount has been seized from the possession of the appellant Narendra kumar it will not involve him in commission of the oEence, because admittedly at the relevant point of time, the deceasediaccused Jethamal was the stock dealer of kerosene oil and on 29.9.86 the appellant Narendra Kumar was sitting in the shop. 10. The defence of the accused persons that complainant Paxamjeet Singh (P.W.~1) was required to return Rs. 40 to deceasedfaccused Jethamal has also not been properly considered and appreciated by the Court below. Paramjeet has admitted the fact in his Court statement that he owed Rs 30 to deceased Jethainal. Similarly the defence witnesses D.W.—1, D.W.—2 65 D.W.—3 have proved the factum of borrowing Rs. 40 by the complainant Paramjeet from the deceased/ accused Jethamal. ll. The defence of the accused persons have been negatived by the Court below solely on the ground that the ,M, % ./ same is all afterthought whereas K.L.‘Jaiswal {P.WnSL the Supply Inspector and a member of trap party has admitted the fact that whiie interrogation deceased/accused Jethamal haé informeqi him that Rs. 40 was bomowed by the complainarli Paramjeet and was returned by him on the date of incident. It is undisputed fact that the entire case of the prosecution is in respect of Rs. 4-0 which has been allegedly ‘paid by complainant Paramjeet as an adciitionai amount to the accused persons and in respect of the amount given by complamants Chamaulal amt ixfan there is no such recoverv by the prosecution: this Court is of the View that the prosecution has failed to'prove its case beyond all the reasonable doubts and the benetit of doubt is to he extended to the appellant Narendra Kumar. 12. in the result, the appeal succeeds aml is aiiowed. The impugned judgment. of the Couz't below convicting and sentencing the accused] appellant No.2 under Section 3/ '7 of the Essential Commoéities Act is set aside. i‘he accused] appellant is acquitted of the charge under Section 31'7 of the Essential Commodities Act. He be set free forthwith, if not required in any other case. Fine, if pairi: be refunded. " Witinker Diwaker ‘ Judge l/V \ ‘ Sd/n