B A I L S L I P The Appellant/Accused in Crl.A.No.1603/2002 (Accused in STC.No.5/99 on the file of the Prl Spl Judge for EC Act Cases, Chennai) was directed to be released on bail as per order dated 15.11.2002 in Crl.MP.No.11650/2002 in Crl.A.No.1603/02 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1603 of 2002 R.D.Samuel .. Appellant Vs. State: rep. by The Inspector of Police, CS CID, Chennai (S) Unit, Chennai-10. .. Respondent Criminal Appeal against the judgment of conviction and sentence dated 17.10.2002 in S.T.C.No.5 of 1999 on the file of the Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai-104. For appellant : Mr.R.C.Paul Kanagaraj For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence dated 17.10.2002 in S.T.C.No.5 of 1999 on the file of the Principal Special Court under E.C. and NDPS Acts, Chennai, whereby the appellant-accused was convicted for the offences under Order 12(a) OF TNSC (RDCS) Order, 1982 and Section 9 read with Section 7(1)(a)(ii) of the Essential Commodities Act and sentenced to undergo three months' rigorous imprisonment and also to pay a fine of Rs.500/-, in default, to undergo further period of 15 days' rigorous imprisonment. 2. The case of the prosecution is as follows: https://hcservices.ecourts.gov.in/hcservices/ The Inspector of Police, CS CID, Chennai South, filed the final report against the appellant-accused, stating that P.W.1 P.S.Kannan, who was officiating as Assistant Commissioner of Civil Supplies, received application forms for new ration cards for the year 1997 to 2002. The applications were under scrutiny, and it was found that the appellant-accused applied in two application forms by slightly changing his name, the family members and affixing his photo. One of the application forms given by the appellant-accused on 5.2.1997 is Ex.P-1. Another application form given by the appellant-accused on 13.2.1997 is Ex.P-2. On suspicion, enquiry was conducted with regard to the address in the said two application forms and in the enquiry, it was revealed that the appellant-accused applied in two application forms for receiving two family ration cards and so, P.W.1 Assistant Commissioner of Civil Supplies, gave a complaint in Ex.P-3 along with the income certificate of the accused as Ex.P-4. P.W.2 Kannappan, the Inspector of Police, received Ex.P-1 complaint from P.W.1 and registered a case in CS CID Chennai South Unit Police Station in Cr.No.192 of 1997 for the offences under Order 12(a) of the TNSC (RDCS) Order, 1982 and Section 9 read with 7(1)(a)(ii) of the Essential Commodities Act. Ex.P-5 is the F.I.R. Copy. After investigation, P.W.2 Inspector of Police filed a final report against the appellant-accused. 3. The trial Court questioned the appellant-accused under Section 313 Cr.P.C. putting the incriminating circumstances before him and the accused denied the charges and stated that he has applied only for one application form. 4. Considering the evidence of both P.Ws.1 and 2 and Exs.P-1 to P-5, the trial Court came to the conclusion that the appellant is guilty of the said offences and convicted and sentence him as indicated above. 5. Challenging the said conviction and sentence, learned counsel for the appellant-accused would contend that there is defective investigation. The application forms of the appellant- accused, as per the evidence of P.W.1, have been forwarded to him by one Theivigam, Superintendent of Civil Supplies, stating that the appellant-accused has submitted two application forms for obtaining two ration cards, but the said Theivigam, Superintendent of Civil Supplies, has not been examined. Exs.P-1 and P-2 contain old ration card numbers and that the old ration cards have not been seized. Learned counsel further urged that P.W.2 Inspector of Police has not examined the appellant-accused or his family members to find out as to whether the particulars furnished in the two application forms are true. The two application forms were received from two different ration shops, but the staff of those ration shops (fair price shops) have not been examined. Learned counsel https://hcservices.ecourts.gov.in/hcservices/ further argued that since P.W.2 Inspector of Police has not examined the appellant-accused and his family members, there is no evidence before Court to show that Exs.P-1 and P-2 were filled only by the appellant-accused. So, there is no material to show that the appellant dishonestly applied for obtaining two ration cards. Learned counsel further submitted that the investigating officer, namely P.W.2 Inspector of Police has not examined any of the witnesses and without their evidence, the conviction and sentence imposed on the appellant by the trial Court are liable to be set aside. He prayed for the acquittal of the accused. 6. Per contra, learned Government Advocate (Criminal Side) took me through the documents, namely Exs.P-1 and P-2 and argued that Exs.P-1 and P-2 contained the photograph of one and the same person and there is a slight change in the names of the applicants as well as the names of the family members. The address mentioned in both the application forms is one and the same. The trial Court has considered all the aspects in proper perspective and came to the correct conclusion. He prayed for the dismissal of the Criminal Appeal. 7. It is true that except the investigating officer, namely P.W.2 Inspector of Police, only P.W.1, the Assistant Commissioner of Civil Supplies has been examined. In his evidence, P.W.1 has fairly conceded that he received the application forms from Theivigam, who is the Superintendent of Civil Supplies, who detected that two application forms have been received from the same applicant. In his cross examination, P.W.1 has stated as follows: @///////,e;j tHf;F rk;ke;jg;gl;l 2 tpz;zg;g kDf;fSk;. jhk;guj;jpy; cs;s rp/o/v!; nuc&d; filapd; K:ykhf mYtyfj;jpw;F mDg;gg;gl;lJ/ xU kD jhk;guj;jpy; cs;s I/V/vg/2 vd;w filapypUe;Jk; kw;bwhU kD nec&dy;?1 vd;w filapd; K:ykhf mDg;gg;gl;lJ/ fz;fhzpg;ghsuhf bja;tPfk; vd;gth; ,Ue;jhh;/ fz;fhzpg;ghsu; bja;tPfk; jhd; kD jtwhdJ vd;W fz;Lgpoj;jhh;/ fz;fhzpg;ghsh; bja;tPfk; ,e;j kD Fwpj;J vGj;JK:ykhd mwpf;if bfhLf;fg;gl;lJ/ 2 g[ifg;gl';fs; xd;whft[k;. mjpYs;s tpyhr';fs; xnu khjphpahf ,e;jjhy; vdf;F re;njfk; te;jJ/ ehnd nehpy; brd;W kDf;fs; Fwpj;J tprhuiz bra;njd;/ fz;fhzpg;ghsh; bja;tPfk; ve;j njjpapy; ,e;j kDf;fis nrhjid bra;jhh; vd;W "hgfk; ,y;iy/ //////@ So, it is pertinent to note that Theivigam, Superintendent of Civil Supplies, is the person who scrutinised the application forms and the said Theivigam has not been examined before Court. Furthermore, in the above evidence of P.W.1, it is stated that one application form has been received from Tambaram I.A.F-2 Ration Shop and https://hcservices.ecourts.gov.in/hcservices/ another one received from National-1 Shop, but the staff from these two ration shops (fair price shops) have not been examined by the investigating agency to show that both the application forms have been given by the appellant-accused. 8. At this juncture, it is appropriate to consider the evidence of P.W.2, who is the investigating officer. In his evidence, he has fairly conceded that he has not examined any person from any Fair Price Shop. He also candidly admitted in his evidence that he has not examined anybody other than P.W.1 Kannan, the Assistant Commissioner of Police. P.W.2 has stated in his cross examination as follows: @//////,e;j tHf;F rk;ke;jkhf ve;j epahatpiyf; filf;Fk; brd;W tprhhpf;ftpy;yiy/ Vbdd;why; mjw;F mtrpak; Vw;gltpy;iy/ m/rh/1 fz;zizj; jtpu ntW egh;fis ehd; tprhuiz bra;atpy;iy/ /////@ 9. So, it is clearly proved that the investigating agency has conducted defective investigation and proper person has not been examined to find out as to whether the application forms have been given only by the appellant-accused. 10. It is also pertinent to note both the application forms have not been sent for Forensic Sciences Laboratory/handwriting expert to find out as to whether both the application forms have been filed and signed only by the appellant-accused. 11. Furthermore, Exs.P-1 and P-2 contain old ration card numbers. But neither P.W.1 nor P.W.2 has taken any steps for taking action against the accused to seize the old ration cards mentioned in Exs.P-1 and P-2. Even though P.W.1 has stated that he has gone to the house of the accused and made enquiry, he fairly conceded that he has not maintained any written document to show that he went to the appellant's house and made enquiry. The extract of the evidence of P.W.1 clearly proves that P.W.1 has not followed the procedures. In his cross-examination, P.W.1 has further stated as follows: @///// ehd; vjphpapd; tPl;ow;F brd;W tprhuiz Fwpj;J vGj;J g {h;tkhd Mjhuk; vija[k; jhf;fy; bra;atpy;iy/ vdJ tprhuizapd;nghJ vjphpf;F Vw;bfdnt ,Ue;j 2 Flk;g ml;ilfis ehd; mthplkpUe;J ifg;gw;wtpy;iy/ vjphpf;F Vw;fdnt cs;s 2 Flk;g ml;ilfis Fwpj;J eltof;if vLf;ftpy;iy/ /////@ 12. So, considering the above aspect that P.W.2 Inspector of Police has not conducted the investigation in proper manner, there is no evidence to show that both the application forms have been submitted only by the appellant-accused before the concerned Fair https://hcservices.ecourts.gov.in/hcservices/ Price Shops. Moreover, the old ration card numbers alleged to have been given by the appellant-accused, were true or not, has not been proved and that no steps have been taken either by P.W.1 or by P.W.2. P.W.2 Inspector of Police has not examined the accused or his family members or neighbours or the staff of the Fair Price Shops to show that the appellant-accused has purchased the commodities on the basis of old two ration cards mentioned in Exs.P-1 and P-2 and not seized the same. 13. In the above circumstances, I am of the opinion that the trial Court has failed to consider the defects in the investigation conducted by the investigating agency and that the prosecution has failed to prove that the appellant-accused alone applied for supply of ration cards dishonestly. 14. In this connection, it is worthwhile to refer to Order 12 of the TNSC (RDCS) Order, 1982, which reads as follows: " Order 12. Prohibition against applying for supply card, etc.:- No person shall-- (a) dishonestly apply for or receive a family card, if he knows or has reason to believe that his name is already included in any family card issued to any household; or (b) obtain a family card by furnishing false information; or (c) without lawful authority, alter or destroy a family card issued to him." 15. Section 9 of the Essential Commodities Act reads as follows: "Section 9: False statement--If any person,-- (i) when required by any order made under section 3 to make any statement or furnish any information, makes any statement or furnishes any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, or (ii) makes any such statement as aforesaid in any book, account, record, declaration, return or other document which he is required by any such order to maintain or furnish, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both." 16. So, the abovesaid ingredients of Order 12(a) of TNSC (RDCS) Order, 1982 and Section 9 of the Essential Commodities Act, have not been proved by the prosecution for want of evidence and hence, I am of the opinion that the trial Court has committed error https://hcservices.ecourts.gov.in/hcservices/ and came to a wrong conclusion that the appellant-accused has dishonestly applied for two ration cards giving false statements and therefore, the appellant-accused is entitled to be given the benefit of doubt. He is entitled for acquittal. 17. In fine, the Criminal Appeal is allowed. (a) The conviction and sentence imposed on the appellant- accused for the offences under Order 12(a) OF TNSC (RDCS) Order, 1982 and Section 9 read with Section 7(1)(a)(ii) of the Essential Commodities Act, are set aside. (b) The appellant-accused is acquitted of the charges. (c) The fine amount, if paid by him shall be refunded. (d) The bail bond, if any executed by the appellant-accused shall stand cancelled. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai-104. 2. The Inspector of Police, CS CID, Chennai (S) Unit, Chennai-10. 3. The Public Prosecutor, High Court, Madras. TEJ(CO) SR/20.1.2010 Judgment in Crl.A.No.1603 of 2002 https://hcservices.ecourts.gov.in/hcservices/