CRIMINAL APPEAL No.231 OF 1993 (S.J.) *** Against the judgment dated 28.7.1993 and order dated 29.7.1993 passed by Sri Jiwan Tigga, Special Judge, Nalanda, Biharsharif in G.R. No.1635 of 1989 / 22/89. *** 1.Lalan Kumar 2.Satendra Kumar 3.Indu Sao 4.Shivnandan Prasad … … … … Appellants Versus THE STATE OF BIHAR … … … … … Respondents *** For the Appellants: - Mr. N.K.Agrawal, Sr. Advocate with M/s B.K.Sinha, K.C.K.Sinha, D.N.Tiwari, P.L.Jaiswal, Madhuri Lata & T.Sharma, Advocates For the State : - Mr. Jai Shankar Prasad, Addl. P.P. *** P R E S E N T THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM *** S.M.M.Alam,J. This Criminal Appeal has been preferred by the appellants against the judgment dated 28.7.1993 and order dated 29.7.1993 passed by Sri Jiwan Tigga, Special Judge, Nalanda at Biharsharif in G.R. No.1635 of 1989/22/89 arising out of Rahui (Wena) P.S. Case No.170 of 1989 whereby the learned Special Judge has been pleased to convict the appellants under Section 7 of the Essential Commodities Act and sentenced each of the appellants to undergo rigorous imprisonment for three months and a fine 2 of Rs.2500/- and in default simple imprisonment of one month each. 2. The prosecution case, as per the written report (Ext.2) of the informant, I. Lakra, who was posted as Sub- Inspector, Harnaut (Wena) Police Station on 9.6.1989, in brief, is that on that very date at about 5.15 P.M. while he was sitting at the police station (Wena Camp), he saw three Tamtams passing on the road in front of the police station and on the said three Tamtams he found several jerkins loaded with kerosene oil. On suspicion, he stopped all the three Tamtams and then started interrogating from Tamtam drivers whereupon three Tamtam drivers, namely, Ram Pravesh Prasad, Nago Mahto and Shyamjee Paswan disclosed that they were carrying kerosene oil on their Tamtams and the said kerosene oil belonged to appellants, namely, Shivnandan Prasad, Lalan Kumar and Satendra Kumar and they were carrying the same at their instructions to the house of Naresh Prasad. (Naresh Prasad has been acquitted by the trial court). There is further allegation that all the Tamtam drivers also showed the receipts of purchase of kerosene oil. It is further said that on verification, it was found that the weight of kerosene oil loaded on three Tamtams was much higher than the weight mentioned in the purchase receipts and so, the informant seized all the containers of kerosene oil as per the seizure list and instituted a case under Section 7 of the Essential Commodities Act against the appellants and others. 3 3. After investigation the said Sub-Inspector Sri I. Lakra, who was also Investigating Officer of this case, submitted charge sheet against the abovementioned appellants and others on the basis of which cognizance was taken and the appellants were charged for contravening the provisions of Sections 3 and 18 (Clauses III to V) of the Bihar Trade Articles (Licences Unification) Order 1984 punishable under Section 7 of the Essential Commodities Act. Thereafter all the appellants were put on trial and by the impugned judgment and order, they were convicted and sentenced as stated above. 4. It appears from perusal of the judgment and the lower court record that during the trial altogether five witnesses, namely, P.W.1 Nago Mahto, P.W.2 Sohrai Lal Sharma, P.W.3 Bijendra Prasad, P.W.4 Ram Pravesh and P.W.5 Ashok Kumar were examined by the trial court. It further transpires that the prosecution has brought on record the formal F.I.R., the statements of Shyamjee Paswan, Ram Pravesh Prasad and Nago Mahto recorded under Sections 164 of the Cr. P.C. by examining a formal witness namely, Ashok Kumar (P.W.5) and on the basis of his statement formal F.I.R. has been marked as Ext. 1, the statement of Shyamjee Paswan recorded under Section 164 of the Cr.P.C. has been marked as Ext.4, the statement of Ram Pravesh Prasad recorded under Section 164 of the Cr.P.C. has been marked Ext. 4/1 and the statement of Nago Mahto recorded under Section 164 of the Cr.P.C. has been marked Ext. 4/2 4 in this case. From perusal of the judgment it appears that on the basis of the said 164 statements of Shyamjee Paswan, Ram Pravesh Prasad and Nago Mahto which were proved by a formal witness the trial court has convicted the appellants. 5. The learned Advocate of the appellants while arguing submitted that the conviction of the appellants is illegal as the trial court for convicting the appellants has relied upon the evidence which is inadmissible in law. The learned Advocate further submitted that there is absolutely no material on record to hold that the seized kerosene oil belonged to these appellants as the appellants were neither found present at the place of occurrence at the time of seizure nor even a chit of paper has come on record to establish that the three Tamtam drivers were carrying the seized kerosene oil at the instructions of these appellants. He submitted that the alleged purchase receipts which were allegedly seized from the possession of the Tamtam drivers were not brought on record and the same are not exhibits and, therefore, in absence of those seized receipts, it cannot be held that kerosene oil was being carried by the three Tamtam drivers at the instance of these appellants. The learned Advocate further submitted that in this case neither the informant nor the Investigating Officer was examined and, therefore, neither the seizure of the articles i.e. kerosene oil was proved nor there is any evidence of the Investigating 5 Officer that actually any such seizure was made on the alleged date of occurrence. The learned Advocate submitted that all these circumstances show that the conviction of the appellants is bad in law. I fully agree with the submissions of the learned Advocate of the appellants and I am of the view that since Shyamjee Paswan, Ram Pravesh and Nago Mahto have not supported the contents of the statements recorded under section 164 of the Cr.P.C., therefore, that statements cannot be legally used against the appellants which were proved by a formal witness. Even the Magistrate, who had recorded the statements of the abovementioned persons under Section 164 of the Cr.P.C.,and was competent to say that such persons had made the statements before him was not examined by the prosecution. In this view of the matter, I am of the view that the learned trial court has committed a grave error of law in using the statements recorded Section 164 of the Cr.P.C. which were proved by a formal witness against the appellants for basing conviction. Moreover, it appears that in this case neither the informant nor the Investigating Officer was examined and in absence of the informant, it cannot be held that the prosecution has been able to prove that on the alleged date of occurrence actually any seizure of kerosene oil was made which was being carried away on the three Tamtams at the instance of the appellants. The non-examination of the Investigating Officer is also fatal to the case of prosecution as due to 6 his none-examination, the seizure of kerosene oil could not be legally proved. In such view of the matter, I am of the view that the conviction of the appellants under Section 7 of the Essential Commodities Act is bad in law and must be set aside. 6. In the result, this appeal is hereby allowed and the impugned judgment and order of conviction and sentence passed against the appellants under Section 7 of the Essential Commodities Act are set aside and the appellants are acquitted of the charge of Section 7 E.C.Act. The appellants are on bail; as such they are discharged from the liabilities of their bail bonds. (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 24th June, 2008 N.A.F.R. (B.T.)