IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO.229 OF 1996 1. Jaysingh Bapuso Jadhav 2. Manohar Bapu Mane .. Appellants Versus The State of Maharashtra .. Respondent Mr.S.A.Ingawale for the appellants. Mr.Y.S.Shinde, A.P.P for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 21st January 2009. : 21st January 2009. : 21st January 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . I have heard the submissions of the learned counsel appearing for the appellants and learned A.P.P for the State. By this appeal, the appellants have challenged the order of conviction and sentence dated 06th April 1996 passed by the learned Special Judge, Kolhapur. The appellants are accused nos.1 and 2. The appellants have been convicted for the offence punishable under section 7 read with section 3 of the Essential Commodities Act, 1955 (hereianfter referred to as the said Act) for having committed breach of sub-clause 3 of Clause 6 of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 1988 (hereinafter referred to as LPG order). The accused (2) nos.3 to 5 have been acquitted. The appellants have been sentenced to undergo simple imprisonment for six months and to pay fine of Rs.01,000/- each. The learned Special Judge also directed the 1st appellant (1st accused) to return 42 empty cooking gas cylinders to the District Magistrate, Kolhapur and to produce the receipt from the District Magistrate within 15 days from the date of conviction failing which the 1st appellant will have to deposit a sum of Rs.21,000/- with the Special Court. 2. The case of the prosecution in short is that on 24th June 1991 at about 1.30 p.m on Vadgaon-Ashte road at Bhadole Naka (Checkpost), Taluka Hatkanangale, District Kolahpur, the accused nos.1 to 5 were collusively and illegally found in possession of 42 empty gas cylinders of Hindustan Petroleum Corporation and Bharat Petroleum Corporation (Burma) in tempo bearing No.MWE 2772 without any valid licence, permit or authorisation. The allegation is that the accused have committed breach of sub clause 3 of clause 6 of the said LPG order. It is therefore alleged that the accused have committed offence punishable under section 7 read with section 3 of the said Act. (3) 3. The prosecution examined 15 witnesses. The case of the prosecution seems to be that some of the witnesses have given empty LPG cylinders to the accused no.2 for refilling the same. The case of the prosecution is that the appellants were in unauthorised possession of cylinders. 4. The learned counsel appearing for the appellants has invited my attention to the statement of the accused under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). He submitted that a common statement under section 313 of the said Code has been recorded by the learned Special Judge thereby vitiating the entire trial. He submitted that the entire case of the prosecution is based on seizure of 42 empty gas cylinders from a tempo. He pointed out that the seizure of the tempo and cylinders was made by Mr.Chalake, Police Sub Inspector of the Special Squad, Kolhapur and that the said Mr.Chalake has not been examined as a witness. He pointed out that panch witnesses to seizure panchanama have turned hostile and hence the seizure panchnama has not been proved. He submitted that the basic prosecution case that the appellants were found in possession of 43 empty cooking gas cylinders in a tempo has not been (4) established. He pointed out that the possession of the said cylinders by the appellants has been inferred on the basis of the application made by the 1st appellant under section 451 of the said Code for return of the seized cylinders and order passed thereon by the learned Judge. He pointed out that there is material on record to show that even the bonds were taken from the persons who had allegedly handed over empty gas cylinders to the appellants. He submitted that there is nothing on record to show that the 1st appellant admitted that at the relevant time he was in possession of 43 cylinders. He submitted that a copy of the application made by the 1st appellant for custody of cylinders is not on record. He submitted that the findings of the learned Special Judge are erroneous and the impugned order deserves to be quashed and set aside. 5. The learned A.P.P appearing for the State supported the impugned judgment and order. He pointed out that the 1st appellant himself applied for custody of 43 cylinders and took the custody of the said cylinders which fact proves that the appellants were in possession of the cylinders and in absence of any evidence regarding authorisation or licence to possess the cylinders, the offence has been rightly held as duly (5) proved. He submitted that no interference was called for with the impugned order. 6. I have carefully considered the submissions. I have perused the notes of evidence and the impugned judgment and order. The first prosecution witness Mr.Popat Bhosale is the panch witness to the alleged seizure of the tempo and the empty cylinders. The said witness has turned hostile. P.W.No.2 Sarjerao Patil stated that his brother Rangrao was holding a cooking gas connection and on 23rd June 1991 he had handed over an empty gas cylinder to the 2nd appellants for refilling it and had paid him certain amount. In the cross examination he admitted that on 23rd June 1991 he was out of station and he was not aware which of his family members had given an empty cylinder to the 2nd appellant. He admitted that he used to get gas cylinder refilled from Shree Agency at Ichalkaranji. He admitted that it never happened that he personally paid the amount to the 2nd appellant and the said accused had supplied the gas cylinders. P.W.no.3 Dilip Kudalkar deposed that on 24th June 1991, he has given an empty gas cylinder to the 1st appellant for refilling and had paid him certain amount. In the cross examination he admitted that he is not a registered consumer. He (6) admitted that he had no documentary evidence to show that he was an authorised consumer of Bharat Petroleum attached to Navhind Gas Agency, Kolhapur. In the cross examination he stated that he was unable to remember whether on 24th June 1991 he had personally handed over the empty gas cylinder to the accused no.2 or that he took it from his house in his absence. P.W.no.4 Vishwas Chopade is a similar witness who has stated that in June 1991 he had given his empty gas cylinder to the 2nd appellant for getting it refilled. In the cross examination he admitted that he was not authorised consumer of the cooking gas. P.W.no.5 Gulab Attar also stated that on 24th June 1995 he had given his empty gas cylinder to the 1st appellant for getting it refilled and that he had paid certain amount to the 1st appellant. In the cross-examination he admitted that he or his brother were getting the gas cylinder refilled from Shree Gas Cylinder Agency, Ichalkaranji. P.W.no.6 Babaso Naikwade also stated that he had handed over an empty gas cylinder to the 1st appellant on 24th June 1991 and had paid him requisite amount. He admitted in the cross-examination that he was not holding any consumer card and that he was always getting the gas cylinder refilled from Navhind Gas Agency, Kolhapur. P.W.no.7 Sudhakar Padalkar also deposed that he had (7) given an empty gas cylinder to the 1st appellant. In the cross-examination he admitted that he was not holding any consumer card. 7. P.W.no.8 Appasaheb More is the alleged attesting witness to the alleged seizure panchnama. He turned hostile and did not support the prosecution. P.W.no.9 Dattatraya Kerlekar stated that four to five days prior to 24th June 1991 he had given his empty gas cylinder to the 2nd appellant to get it refilled. In the cross examination he pleaded ignorance about the name of the real authorised holder of the cylinder. P.W.No.10 Vasant Dadu Koli stated that on the day of the incident, he had given his empty cylinder to the appellants for getting it refilled. He admitted that he was not an authorised consumer of any gas agency. P.W.no.11 Prashant Deshpande was declared hostile. P.W.no.12 Bapuso Dabade stated that eight to ten days prior to the arrest of the 1st accused he had given an empty gas cylinder to the 1st accused to get it refilled. In the cross examination he also admitted that he was not authorised consumer of the cooking gas. P.W.no.13 Amin Attar and P.W.no.14 Sunil Mahajan were declared as hostile. (8) 8. P.W.No.15 Bapurao Kale is the Investigating Officer. He stated that he received a report from Mr.Chalake, P.S.I who came to the police station and produced a tempo loaded with 43 empty cooking gas cylinders, 5 persons and some documents. He stated that the said Mr.Chalake had attached the tempo and 42 cooking gas cylinders under a panchnama. 9. To prove violation of sub clause 3 of clause 6 of the LPG Order all that is required to be proved by the prosecution is that the accused was possessing cylinders and that he is not a consumer and the same have not been supplied to him by a distributor. Thus, crux of the matter is the possession of the empty gas cylinders by the appellants. This factual aspect will have to be established by the prosecution. P.S.I. Chalake who seized the gas cylinders and the tempo has not been examined. The panch witnesses examined to prove seizure panchnama have turned hostile. The evidence of the other prosecution witnesses is that they had allegedly handed over empty gas cylinders to the appellants. All of them are themselves not consumers and it appears that all of them were in unauthorised possession of cylinders. It must be noted here that there is no material on record to show that the gas (9) cylinders of the concerned witnesses were found in custody of the appellants at the time of seizure. The evidence of the said witnesses if accepted as it, will show that the said witnesses have handed over empty cylinders to the appellants for refilling. There is nothing on record to show that the cylinders in respect of which the witnesses have deposed are out of the 43 cylinders which were allegedly seized. As stated earlier, seizure panchanama has not been proved. 10. The learned Special Judge has relied upon Exhibit 39 which is a letter addressed by the Judicial Magistrate First Class of Peth-Vadgaon to the P.S.I of the Peth-Vadgaon police station in which it was stated that the 1st appellant had filed an application in connection with Vadgaon C.R.No.9 of 1991 and has prayed that the cylinders attached be released. Though in the impugned judgment the learned Judge has observed that a copy of the application made by the 1st appellant was forwarded alongwith letter Exhibit 39, the said copy is not on record. In the deposition of the Investigating Officer there is a reference to the fact that the learned Magistrate directed that a bond should be obtained from the consumers of the cylinders before releasing the said cylinders. A copy of the application (10) made by the 1st appellant for return of cylinders is not placed on record. In fact, certain correspondence placed on record shows that the record of the said application has been destroyed. No attempt was made by the prosecution to adduce secondary evidence of the said application. Thus, material which is available before the learned Special Judge is that an application was made by the 1st appellant for return of the gas cylinders. Only on the basis of the fact that the 1st appellant applied for custody of gas cylinders, one cannot jump to the conclusion that on the relevant date the appellants were in possession of 43 cylinders as alleged. As stated earlier neither the seizure panchnama has been proved nor the officer who made seizure has been examined by the prosecution. Therefore, the prosecution story that the appellants were found in possession of 43 empty gas cylinders appears to be a clearly doubtful. 11. Apart from the aforesaid fact it appears that a common statement under section 313 of the said Code of all the five accused was recorded. Perusal of the said statement shows that common questions were asked to all the five accused and their answers have been separately recorded. The learned counsel appearing for the (11) appellants has placed reliance on a decision of Division Bench of this Court in the case of Balkrishna Anant Hirlekar Vs. Emperor (A.I.R 1931 Bombay 132). The Division Bench had an occasion to deal with section 342 of the Code of Criminal Procedure, 1898. In the said decision, Division Bench held that where more than one accused persons are on trial, the failure to record statement of each accused individually is an illegality which vitiates the trial. The same view has been taken by the learned Judge of this Court in the case of Madhukar Aba Patil & Anr. Vs. Jotiram Baburao Jadhav & Anr. (1996(2) Maharashtra Law Journal 679) as well as in the case of Bhalchandra Narayan Tangadi & Ors. Vs. State of Maharashtra (1994 Maharashtra Law Journal 891). The Division Bench clearly held which has been reiterated by the other judgments referred to above that the statement of each accused is required to be separately recorded after separately examining him under section 313 of the said Code. The view taken by this Court is that trial vitiated if a common statement under section 313 is recorded. Under section 313 of the said Code, every accused has to be separately examined. 12. A submission was attempted to be made on behalf of the respondent that an order of remand may be passed (12) directing the Special Judge to record a proper verification statement. The said prayer cannot be acceded to for the reason that the offence alleged is of June 1991 which has taken placed more than seventeen and half years back. This appeal has remained pending in this Court from the year 1996. Therefore, it will be unjust now for both the parties if order of remand is passed directing recording separate statements of the accused. Apart from this fact even on merits I have found the prosecution case to be doubtful. As per the well settled law if there are two views possible, the one in favour of the accused has to be preferred. Even on merits also the appellants must succeed as the prosecution has not established their case of the appellants possessing 43 empty gas cylinders. 13. Hence, I pass the following order: (i) The impugned judgment and order is quashed and set aside. The conviction and sentence of the appellant is quashed and set aside. (ii) Bail bonds of the appellant stand cancelled. (13) (iii) Appeal is accordingly allowed. (A.S.Oka,J)