1 Cri-Appal-13-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 13 OF 1993 Abdul Sami Abdul Rauf Kardame ) age 31 yrs, R/o. Shriwardhan, ) Tal. Shriwardhan, Dist. Raigad. ).. Appellant/Accused Versus The State of Maharashtra .. Respondent Mr. Rahul S. Kate, Advocate, for the appellant-accused. Mrs. P.P.Bhosale, APP,for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 10th December, 2010. JUDGMENT : 1. The accused has preferred this Appeal challenging his conviction for the offence under Section 3 read with Section 7 of the Essential Commodities Act and sentence to undergo R.I. for one month and to pay fine of Rs.1,000/- passed by the learned Special Judge, Raigad, Alibag on 18.11.1992. 2. Prosecution case, in brief, is that on 23.11.1990, PW-2 Narayan Jadhav, who was the District Supply Officer, Raigad, had been to Shriwardhan for the purpose of inspection along with his staff member Kinare. PW-1 Suresh Karanjkar, who was the Supply Inspector attached to Tehsil office, Shriwardhan, 2 Cri-Appal-13-93.sxw also joined him. Then PW-1 Suresh Karanjkar, PW-2 Narayan Jadhav and Kinare went to the village Chikhalap for inspection of a rationing shop. The District Supply Officer inspected the ration shop and then he noticed that adjoining the ration shop, there was a grocery shop of the present accused-appellant. In front of that grocery shop, a barrel containing about 220 liters of kerosene was lying. On enquiry, the accused admitted that he was the owner of the grocery shop and the kerosene was kept by him for sale. Thereafter, the District Supply Officer directed his staff member Kinare to find out whether any more kerosene was stocked in the shop. Accordingly, Kinare inspected the shop and reported that 5 tins containing 18 liters each were in the shop. Thus, 310 liters of kerosene was found in possession of the accused which he had kept in his shop for sale. The said barrel and 5 canisters containing in all 310 liters of kerosene were handed over to the accused after obtaining receipt with a direction to retain the same till further orders. According to the prosecution, the accused admitted that he had no licence to store or sell kerosene. On 22.3.1991, PW-1 Supply Inspector Suresh Karanjkar lodged a report at the Police Station Shriwardhan, on the basis of which offence was registered. On 23.3.1991, spot panchnama was drawn. Thereafter, the accused was arrested and possession of kerosene was taken by the Tahsildar from the accused. Samples of the kerosene were taken and referred to the C.A. which confirmed that the contents of the barrel and the canisters were kerosene. After 3 Cri-Appal-13-93.sxw inspection, the Criminal Case No.12 of 1991 was filed before the Special Judge under the Essential Commodities Act at Raigad-Alibag. 3. The accused pleaded not guilty to the said charges and he denied that he was the owner of the grocery shop and that he was found in possession of the kerosene. According to him, he was falsely implicated in this case. 4. On behalf of the prosecution, in all 8 witnesses were examined. Several documents were placed on record. After hearing the parties, the learned Special Judge convicted and sentenced the accused as stated above. 5. The learned Counsel for the appellant vehemently contended that there is no evidence to establish that the said grocery shop was owned or run by the accused. Also, there is nothing on record to show that the said kerosene was kept there by the owner of the grocery shop. There was delay of about four months in lodging the report. It is contended that the accused was falsely implicated just because the officers wanted to save the owner of the rationing shop, who was blackmarketing kerosene. On the other hand, the learned APP contended that there was no reason for the officers of the Supply Department to falsely implicate the accused and therefore their evidence should be believed. 4 Cri-Appal-13-93.sxw 6. On perusal of the evidence, it appears that only two witnesses, namely, PW-1 Suresh Karanjkar, Supply Inspector and PW-2 Narayan Jadhav, District Supply Officer, are material witnesses for the present case. They repeated the prosecution story in their examination-in-chief. According to them, after the accused confirmed that he was the owner of the shop and had no licence to store and sell kerosene, the said barrel containing 220 liters of kerosene and 5 canisters containing 18 liters of kerosene each were handed over to the accused himself under receipt passed by him in favour of the District Supply Officer. Exhibit 8A is a statement made by him admitting that he was the owner of the shop and that he had stored 310 liters of kerosene in the shop for sale. Exhibit 8B is the receipt given by him which is also another admission that 310 liters kerosene was found stocked with him. The accused denied that he had passed any such receipt. According to him, his signatures were obtained later on in the Tahsil's office. He denied that he was put in possession of the said kerosene and that same was received back on 23rd March, 1991. 7. Admittedly, at the time of inspection of the grocery shop allegedly belonging to the accused, no panchnama was drawn. No independent witness was present. The staff member Kinare, who had allegedly inspected the shop and 5 Cri-Appal-13-93.sxw found 5 canisters containing kerosene, was not examined as a witness. Admittedly, PW-1 Suresh Karanjkar and PW-2 Narayan Jadhav themselves did not enter the shop to find out if any kerosene was in the shop nor they claimed that they had seen the canisters in the shop. No evidence was collected to show that the said shop belonged to or was run by the accused. It was not impossible to collect that evidence. The licence issued under the Shops & Establishment Act could be found. The evidence from the Grampanchayat could be collected about the ownership of the premises in which the shop was being run. If the premises belonged to the accused or if the shop was in his name, burden would be on him to explain the possession of kerosene. If the premises of the shop would be in the name of some other person, the owner of the premises could be examined to find out whether he had let out the premises to the accused for running the grocery shop. It is material to note that PW-1 Suresh Karanjkar deposed that one barrel containing kerosene of 220 liters was kept by the side of the staircase of the shop of the accused. While PW-4 Narayan Jadhav deposed that by the side of the ration shop, there is a grocery shop and by the side of the grocery shop, the barrel of kerosene was lying. It is material to note that the ration shop, the grocery shop and several other shops and offices were in the same building. Even the office of Talathi was situated in the same building. Therefore, merely because the barrel containing kerosene was found by the side of the grocery shop allegedly owned by 6 Cri-Appal-13-93.sxw the accused, it cannot be presumed that the kerosene was also possessed by him. No attempt was made to establish that accused was in possession and he was selling the kerosene. Such evidence could be very useful. 8. There is no explanation on record as to why there was delay of four months in lodging the report about the incident. If the kerosene was found in the said shop on 23.11.1990, the report could be lodged with the police immediately or within a day or two so that sufficient time could be given to the accused to produce relevant documents. PW-2 Narayan Jadhav, District Supply Officer deposed that he had addressed a letter dated 31.12.1990 Exhibit 14 to the Tahsildar for taking action about seizure of kerosene from the accused and to report by 5.1.1991. He also addressed another letter dated 30.1.1991 Exhibit 15 to the Tahsildar about the same subject. It is surprising that firstly the District Supply Officer did not give any written instructions either to the Tahsildar or to the Supply Inspector for more than one month after the incident to take any action and secondly inspite of the two letters from the District Supply Officer, the Tahsil office did not take any action for about two months. The report was lodged for the first time on 22.3.1991. About the delay, there is no explanation from PW-1 Suresh Karanjkar, who had lodged the report Exhibit 12. 7 Cri-Appal-13-93.sxw 9. Evidence of PW-3 Ravindra Salunkhe, who was Talathi of Village Chikhalap shows that on 23.11.1990, District Supply Officer and his staff had inspected the ration shop. Incidentally, the office of Talathi was also in the same building to the back side. According to him, the barrel containing kerosene was lying in front of the shop of the accused and the District Supply Officer recorded his statement though he does not now what statement was made by the accused. Ex.11 is about taking custody of the kerosene from the accused on 15.2.1991. At that time a panchnama Exhibit 9 was drawn to show that the kerosene was in the custody of the accused and he had handed over possession of the same to the Tahsildar. PW-6 Shantaram Pardhi, who was a witness of that panchnama, did not support the prosecution and was declared hostile. In my opinion, this evidence does not help the prosecution much because on 23.11.1990, the District Supply Officer had put the said barrel and the canisters in custody of the accused under a receipt and he was bound to return the same as and when required. Therefore, the seizure of the same on 21.2.1991 from him does not show that the accused had kept the said kerosene with him for sale. At that time, he was in custody of the said barrel and the canisters for and on behalf of the District Supply Officer. 10. Evidence of PW-8 PSI Vijay Patil shows that after registration of offence on 23.3.1991, he prepared a spot panchnama Exhibit 18. However, PW-4 8 Cri-Appal-13-93.sxw Mohan Tambe, who was a panch witness, did not support and was declared hostile. PW-5 Balaram Ghadse is a panch witness about taking of samples of the kerosene. It is shown that the samples were sent to C.A. through PW-7 Constable Yeshwant More as per covering letter Exhibit 24. C.A. report Exhibit 29 was received and it shows that samples were kerosene. However, in absence of credible evidence about possession of accused over the kerosene, C.A. report cannot be of much help. 11. In view of the evidence noted above, I find that the prosecution has failed to prove beyond reasonable doubt that the accused was the owner of the grocery shop and even if he was running the shop, he was in possession of the kerosene. Therefore, the prosecution has failed to prove the charges against the accused. The learned trial Court did not appreciate the evidence in proper perspective and committed error in convicting the accused. 12. For the aforesaid reasons, the Appeal is allowed. The impugned order of conviction and sentence are hereby set aside. (J.H.BHATIA,J.)