RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1306 of 2001 (Old No. 1200 of 1992) Vikram Singh .…. Appellant/Accused Versus State of U.P. …………… Respondent July 28, 2009 Mr. U.P.S. Negi, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 19.6.1992 passed by the Special Judge (Sessions Judge), Pauri Garhwal in Special Criminal Case No. 10 of 1987, State v. Vikram Singh, whereby the appellant/accused Vikram Singh has been held guilty for the offence under Section 3 read with Section 7 of the Essential Commodities Act, 1955 (for short, the Act) and has been convicted and sentenced to undergo R.I. for six months. 2. I have heard learned Counsel for the parties and have perused the entire material available on record. 3. The prosecution case, in brief, is that appellant/accused Vikram Singh was the owner of a Fair Price Shop. On 6.9.1987 at about 1.50 p.m, Supply Inspector Sri D.P. Badola (PW1) along with Sri Jagat Singh Pundir, Regional Food Officer and other public witnesses had inspected the said Fair Price Shop of the 2 appellant/accused and found several articles in excess quantity than actually shown in the stock register. Some irregularities were also discovered in selling the articles shown to the ration card holders. 15kg 600gm wheat, 3kg 200gm common rice, 6qnt 54kg 200gm superfine rice, 1qnt and 89kg sugar were found in excess on the basis of the records. The recovered items were given in the supardgi of Bharat Singh and fard Ex. Ka-1 was prepared. With the abovesaid facts, an FIR Ex. Ka-4 was lodged in the P.S. Pauri on 8.9.1987 at 5.05 p.m. On the basis of this FIR, chick FIR Ex. Ka-5 was prepared. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-6. The investigation of this case was entrusted to S.I. Rukan Singh, who after inspecting the place of occurrence prepared the site plan Ex. Ka-7. Sri V. Venkatchalam, District Magistrate, Garhwal vide his order dated 21.11.1987 Ex. Ka-8 had granted sanction to prosecute the appellant/accused for the aforesaid irregularities. During the course of investigation, the I.O. had recorded the statements of the witnesses and after completing the investigation, he had filed the chargesheet Ex. Ka-9 against the appellant/accused. 4. The particulars of the offence were stated to the appellant/accused who denied the allegations levelled against him. 5. To prove its case, the prosecution has examined PW1 D.P. Badola, Supply Inspector and PW2 S.I. Rukan Singh, the I.O. of the case. 6. Thereafter, statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated 3 that he has been falsely implicated in the case. In defence, two witness, viz., DW1 Jaswant Singh and DW2 Mahendra Singh were examined by the appellant/accused. 7. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Special Judge (Sessions Judge), Pauri Garhwal vide his judgment and order dated 19.6.1992 convicted and sentenced to the appellant/accused as discussed above. Against the aforesaid judgment and order dated 19.6.1992, the appellant/accused has preferred the present appeal. 8. To prove its case, the prosecution has examined PW1 D.P. Badola, Supply Inspector who in his deposition has reiterated the averments made in the FIR. In his cross- examination, this witness has stated that at the time of giving the license of a Fair Price Shop, an agreement was entered into with the seller and then the license was issued wherein the location of godown and place of business were mentioned. He admitted that no such license was produced on the record. He has further admitted that he was not aware of the fact as to where are the godown and place of business of the appellant/accused as was mentioned in the said agreement. 9. PW2 S.I. Rukan Singh has stated that the investigation of this case was entrusted to him. Chick FIR Ex. Ka-5 was prepared by Constable Liladhar. Necessary entries were also made by him in the GD. Copy of GD is Ex. Ka-6. He has further stated that he recorded the statements of the witnesses during the course of investigation and after inspecting the place of occurrence, also prepared the site plan Ex. Ka-7. He has also received the sanction Ex. Ka-8 of the District Magistrate, Garhwal 4 to prosecute the appellant/accused. After completing the investigation, the chargesheet Ex. Ka-9 was filed by him against the appellant/accused. 10. After that, the statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. In defence, he produced DW1 Jaswant Singh and DW2 Mahendra Singh. 11. DW1 Jaswant Singh has stated that the appellant/accused was known to him who was the resident of village Bariar and who had a Fair Price Shop at Patisain. This witness has further stated that he had left 50 kg of rice in the kitchen of appellant/accused and after leaving the said rice he had gone to village Khara for some personal work. The kitchen of the appellant/accused was situated at a distance of 40-50 feet from his shop. He has further stated that his village was not connected with a motorable road and, therefore, villagers used to carry the articles either on his own head or through the mules. 12. DW2 Mahendra Singh has stated that he was acquainted with the appellant/accused who was the resident of village Bariar. The appellant/accused had a Fair Price Shop at Patisain. He has further stated that he had kept 70 kg of rice in the room of the appellant/accused which he had purchased from the shop of Preetam Mal. He has further stated that he kept the said rice in the room of the appellant/accused because at that time no mule was available to carry it to the village. He has also stated that due to non-availability of mules, Mahaveer, Ramchandra, Padam Singh and many other 5 people of his village had also kept their rice in the room of the appellant/accused which was situated at a distance of nearly 50 feet from his shop. He has further stated that he had not received back his rice and that appellant/accused Vikram Singh had told him that the checking squad had seized the said rice. 13. Learned Counsel for the appellant has argued that on the basis of the evidence discussed above, the prosecution has not proved the case for the offence under Section 3 read with Section 7 of the Act against the appellant/accused beyond reasonable doubt. I find substance in the argument of learned Counsel for the following reasons: (i) That PW1 Supply Inspector, D.P. Badola has stated there an agreement was entered into between the Government officials and the seller at the time of issuance of license, wherein the place of business and godown were mentioned. But no such agreement could be produced by the prosecution to substantiate its case. This witness had even pleaded ignorance of the fact regarding place of business and godown of the appellant/accused which were recorded in the agreement. (ii) That undisputedly neither the agreement nor the license was produced by the prosecution and, therefore, the prosecution has failed to prove violation of any condition of the said license by the appellant/accused. (iii) That appellant has been charged with the allegation that he sold the articles on bogus ration cards as well as that entries of the number of ration card were not made in the register, but no ration card was filed on the 6 record by the prosecution to prove this allegation. Even no ration card holder was examined to prove that he had not received the articles mentioned in his ration card. Hence, prosecution has also not proved this allegation. 14. Learned Counsel for the appellant drew my attention to the terms and conditions of ‘The U.P. Foodgrains Dealers’ (Licensing and Restriction on Hoarding) Order, 1976’ which prescribes that license for purchase, sale/storage for sale of foodgrains in the case of a retailer shall be issued in Form ‘D’. Sub-clause (i) of Clause 3 of the said Form ‘D’ provides that “the licensee shall, except when specially exempted by the State Government or by the licensing authority in this behalf, maintain a register of daily accounts for each of the foodgrains mentioned in paragraph 1, showing correctly: (a) the opening stock on each day; (b) the quantities received on each day showing the place from where and the source from which received; (c) the quantities delivered or otherwise removed on each day; and (d) the closing stock on each day.” 15. Clause 1 of the aforesaid Form ‘D’ (mentioned as paragraph 1 in sub-clause (i) of clause 3 as discussed above), lays down as under: “subject to the provisions of the Uttar Pradesh Foodgrains Dealers’ (Licensing and Restriction on Haording) Order, 1976 and to the terms and conditions of this license………..is/are hereby authorized to purchase, sell or store for sale in retail, the undermentioned foodgrains. ……… ………” 7 16. A bare reading of the aforementioned clause 1 of Form ‘D’ makes it very clear that the name of the foodgrains, for sale of which the license has to be issued to a retailer, shall be duly mentioned under this clause of the said Form ‘D’ and the licensee shall, unless specifically exempted by the competent authority, maintain a register of daily accounts for each of the foodgrains mentioned in paragraph 1 (clause 1) showing correctly the opening and closing stock on each day, the quantities received on each day showing the place from where and the source from which received and the quantities delivered or otherwise removed from on each day. But the prosecution has failed to produce the mandatory license issued on the Form ‘D’ to the appellant/accused to show the items that were mentioned in paragraph 1 (clause 1) for which the license was issued to the appellant/accused and for which the appellant/accused was required to maintain the register of daily accounts showing details of opening and closing stock of each day as well as the quantities delivered and received on each day showing the place from where and the source from which received. Thus, by not filing the said license, the prosecution has failed to prove the charges levelled against the appellant. 17. In view of my foregoing discussion and conclusion, offence under Section 3 read with Section 7 of the Act is not proved against the appellant/accused beyond reasonable doubt and he is entitled to get the benefit of the same. As such, the impugned judgment and order dated 19.6.1992 passed by the trial court is not justified and correct and the same is liable to be set aside. 18. Resultantly, the appeal is allowed. The judgment and order dated 19.6.1992 passed by the Special Judge 8 (Sessions Judge), Pauri Garhwal in Special Criminal Case No. 10 of 1987, State v. Vikram Singh, convicting the appellant/accused Vikram Singh for the offence under Section 3 read with Section 7 of the Act is hereby set aside. Consequently, sentence awarded to the appellant to undergo R.I. for six months is also set aside. Appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharges. 19. Let the lower court record be sent back. (Dharam Veer, J.) 28.07.2009 PRABODH 9