1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.239 OF 1995 1. Tarachand S/o Ramrao Raut } Age : 28 Years, Occ. Business, } R/o : Ambad, Dist. Jalna } 2. Nizamuddin S/o Sirajuddin } Age : 31 Years, Occ. : Service, } ..... APPELLANTS R/o : Jalna, Dist. Jalna. } (ORI. ACCUSED) V E R S U S The State of Maharashtra } .... RESPONDENT Shri. P.N.Surwase, Advocate for Appellant No. 1. Shri. A.R.Borulkar, Advocate for Appellant No.2. Shri. V.H.Dighe, A.P.P. for the State. [ CORAM : R.M.BORDE, J. ] DATE : 12/06/2009 ------------------------------------------------- 2 ORAL JUDGMENT : 1. This is an Appeal presented by original accused raising exception to the Judgment and Order passed by the Special Judge, Jalna on 28/7/1995 in E.C. No. 10 of 1992. 2. It is the case of the prosecution that on 12/11/1990, complainant/P.S.I. Shaikh received secret information that accused no. 1 Tarachand, who was running retail fair price shop and dealing with sale of kerosene, is engaged in selling kerosene as fuel for purpose of running Truck bearing No. MWP-3500. The accused no. 2 is stated to be a driver engaged to run the said truck. After receiving secret information, the police officials along with raiding party, reached near fair price shop belonging to accused no. 1. The raiding party found truck in question standing in front of shop and the accused no. 1 was filling kerosene in the fuel tank of the truck. It was found that about 100 liters of kerosene was filled by accused in the fuel tank of said truck. The accused were apprehended on the spot, who were engaged in dealing with schedule commodity illegally. After proper investigation, charge sheet came to be filed against the accused. The accused were charged for the offence punishable under Section 7 of the Essential Commodities Act (for short ‘ the Act ’ ) for having committed violation of orders issued under Section 3 3 of the Act. 3. The accused appeared before the trial Court and pleaded not guilty to the charge and claimed to be tried. The defence of the accused is of total denial. The prosecution, in order to bring home the guilt of accused, examined as many as six witnesses. After recording the evidence of prosecution witnesses, the learned trial Judge came to the conclusion that the prosecution has substantiated charge levelled against accused. As such, after holding the accused guilty for commission of offence punishable under Section 7 read with Section 8 of the Act, the learned trial Judge sentenced both the accused to suffer Rigorous Imprisonment for 3 months and to pay fine of Rs. 200/-, in default of payment of fine, the accused are directed to undergo Rigorous Imprisonment for 15 days. 4. With the assistance of the learned counsel appearing for the appellant, I have scanned the evidence placed on record by the prosecution. P.W. 1 Motilal Limbaji Lohar, P.W. 3 Ramdas Vikram Kakde and P.W. 6 Sk. Chand Sk. Haider are the prosecution witnesses, who were the members of raiding party, being police officials. P.W. 1 Motilal Limbaji Lohar is the Police Head Constable, who has narrated the prosecution 4 version. The story put up by P.W. 1 Motilal is consistent with the prosecution case. There is nothing in the cross examination to discredit the testimony of said witness. P.W. 3 Ramdas Vikram Kakde is Police Constable as well as P.W. 6 Sk. Chand, P.S.I., have also deposed consistant with the prosecution case. Similarly, P.W. 2 Irshad Hashmi S/o Mushtaq Hashmi is a panch witness in respect of scene of offence panchanama. The said witness has deposed about the location of truck, which was stated to be parked in front of fair price shop, being run by accused no. 1. The witness has also deposed in respect of delivery of kerosene by the accused for user as fuel to drive truck.. 5. From the evidence of prosecution witnesses, reasonable inference can be drawn that the prosecution has established case in respect of sale of schedule commodity in illegal manner by the accused. The view adopted by the trial Court and the conclusions reached, therefore, can not be faulted. The learned trial Judge is correct in its approach in reaching conclusion that the accused has tried to dispose of schedule commodity i.e. kerosene in violation of the prohibitions imposed under the concern order restricting use of kerosene i.e. schedule commodity. 6. The learned counsel appearing for the appellant has 5 vehemently contended that the prosecution has not placed on record the order issued under the provisions of Section 3 of the Act, in respect of which violation/infringement was alleged. The plea of the accused was recorded by the trial Court on 12/6/1995. However, the accused were not made aware in respect of the order issued by the State Government under Section 3 of the Act, the terms of which are alleged to have been violated by the accused. Section 3 of the Act is in respect of powers vested with the Central or State Government in respect of control production, supply, distribution, etc. of the essential commodities. The violation of orders issued under Section 3 of the Act, is made punishable under Section 7 of the Act. In the instant case, a grievance is made that the appellants are not called upon to answer the charge in respect of violation of orders clamping prohibition in respect of use of kerosene, which is admittedly schedule commodity within the meaning of provisions of the Act. It is the contention of the appellants that as they were not made aware in respect of violation of specific order issued under Section 3 of the Act, they were precluded from raising specific defence at the trial. The lapse on the part of prosecution has definitely caused prejudice to the accused as they were prevented from raising specific defence during the trial. The counsel appearing for appellant places reliance on a Judgment reported in 2004 AIR SCW 5334 – Prakash 6 Babu Raghuvanshi V/s State of Madhya Pradesh and contends that it is incumbent on the prosecution to place on record the order in respect of which violation is alleged. Section 7 refers to contravention of any order made under Section 3 of the Act. It is essential for attracting provision of Section 7 of the Act to show that some order has been made under Section 3 of the Act has been contravened. It is contended that in absence of any material to demonstrate as to which of the order issued under Section 3 of the Act has been violated by the accused, they can not be held guilty for commission of the alleged violation, which has not at all been disclosed by the prosecution. While delivering the reported Judgment, the Apex Court after considering the objection raised by the accused, directed remittance of the matter back to the trial court with a direction to the prosecution to place on record the relevant orders and for extending further opportunity to the accused to meet allegations made by the prosecution. The reported case cited at bar squarely applies to the facts of the instant case. However, in the instant matter, the alleged violation of the State Government’s Order issued under Section 3 of the Act, pertains to the year 1990. The appellants were tried and sentenced in the year 1995. The instant Appeal remains pending since 1995 till this date. It would not be prudent to direct remand of the matter after 19 years of the commission of the offence. Even if it is assumed that the 7 accused have committed infringement of the order issued under Section 3 of the Act, prescribing restrictions relating to use of kerosene distributed/sold through public distribution system, taking into consideration the nature of allegations and considering the time lapsed from the date of alleged incidence, it would be in fitness of things to direct release of accused upon holding that the sentence already undergone by the concerned accused would be sufficient. It would also not be prudent to remit the matter back to the trial Court for fresh consideration in view of the ratio laid down by the Apex Court in the reported case cited supra. 7. It has been brought to my notice that the accused were arrested by the police on 12/11/1990 and were directed to be released on 13/11/1990. The accused were in custody for a day. It is also brought on record that the accused have deposited the fine amount as directed by the trial Court. In this view of the matter, considering the nature of allegations levelled against the accused and considering the fact that the time gap of 19 years has lapsed since the date of alleged infringement of orders issued under section 3 of the Act, which is punishable under Section 7 of the Act, it would not be appropriate to direct the accused to surrender for undergoing sentence as directed by 8 the trial Court. The Appeal thus deserves to be allowed partly. The conviction of the accused for offence punishable under Section 7 read with Section 8 of the Act for violation of the orders issued under Section 3 of the Act, is maintained. So far as the sentence imposed by the trial Court, the same is reduced to one already undergone by the accused. Order accordingly. [ R.M.BORDE ] JUDGE knp/CRIAPL239.95