RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.286 OF 2001 (OLD NO.676 OF 1993) 1. Nem Chand Sagar S/o Udai Ram 2. Pothe Ram S/o Udai Ram Both R/o Khunsara, P.S. Sitarganj ……… Appellants Versus The State ……… Respondent Dated: April 10, 2009 Sri S.K. Aggarwal, Sr. Adv. assisted by Km. Krishi Shukla, Adv. for the appellants Sri M.A. Khan, learned Brief Holder for the State/Respondent HON. DHARAM VEER, J. This appeal preferred, under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.04.1993 passed by Special Judge (E.C. Act), Nainital in Special Trial No.4 of 1990, State through Khandsari Inspector Vs. Nem Chandra Sagar & Pothi Ram, whereby the appellants-accused have been convicted under Section 7(1)(a)(ii) r/w Section 3(2)(a) of the Essential Commodities Act, 1955 (hereinafter to be referred as the Act) and each of them was sentenced to undergo three months’ simple imprisonment with fine of Rs.2,000/- each. In case of default of payment of fine, the defaulter or defaulters shall undergo six months’ further simple imprisonment. 2. I have heard Sri S.K. Aggarwal, learned senior advocate assisted by Km. Krishi Shukla, advocate for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 2 3. In brief the prosecution case is that P.W.2 K.P. Srivastava, Khandsari Inspector filed a complaint against the appellants-accused Nem Chand and Pothi Ram with the permission of the then Collector/District Magistrate, Nainital with the allegations that the inspection of Khandsari Unit of appellants’ Firm Sagar Sugar Industries situated in Village Khunsara, Post Nakatpura of P.S. Sitarganj was done during the season 1988-89 and it was found that the proprietor or Licence Holder of aforesaid Khandsari Unit were producing Gur by using machinery and process different than that mentioned in their licence. As such they have contravened Condition No.3 of the licence granted to them under U.P. Khandsari Sugar Manufacturers Licensing Order, 1967 and thus they have committed an offence punishable under Section 3/7 of the Act. Thereafter, P.W.2 K.P. Srivastava obtained the sanction by the then District Magistrate, Nainital on 12.7.1989 for prosecuting the appellants-accused Nem Chandra Sagar and Pothi Ram, which is Ex.Ka-4. Inspection reports prepared by the Inspection Team on 22.2.1989, 15.1.1989 and 27.1.1989 are Exs.Ka-1, Ka-2 and Ka-3 respectively. Thereafter, the complaint was filed by P.W.2 K.P. Srivastava in the court, i.e. Ex.Ka-5. 4. Thereafter, on 7.8.1991, learned Special Judge/Addl. Sessions Judge, Nainital framed the charge against the appellants-accused Nem Chand and Pothi Ram u/s 3/7 of the Act. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Nirmal Kumar Jain, Khandsari Officer and P.W.2 PK.P. Srivastava, Khandsari Inspector. 3 6. Thereafter, the statements of appellants-accused were recorded u/s 313 of Cr.P.C. and the oral and documentary evidence was put to each of them in question form. 7. After hearing counsel for the parties and appreciating the material on record, learned Special Judge (E.C. Act), Nainital vide judgment and order dated 27.4.1993 convicted and sentenced the appellants-accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the present appeal has been preferred. 8. To prove its case the prosecution has examined P.W.1 Nirmal Kumar Jain who has stated that on 22.2.1989, he was posted as Khandsari Officer, Haldwani. On that day at 12:45 P.M., the inspection of Khandsari Unit of appellants-accused was conducted. For the crushing season 1988-89, appellants-accused were granted licence to run a power crusher 28 x 35.5. cms, three roller hydraulic non-sulphur with 7 boiler of Meerut type and also of a centrifugal pump. However, in the inspection, a power crusher 28 x 35.5. cm, three roller non-hydraulic non-sulphitation along with 5 boiler of Meerut type was found. Therefore, the appellants-accused have used the non-hydraulic machine instead of hydraulic machine and have also used 5-Meerut type boilers instead of 7-Meerut type boiler, which is in violation of the licence granted to them. At the time of inspection, appellant/accused Nem Chandra Sagar was present. Further, as per the registers shown by appellant-accused Nem Chandra, 587.74 quintals of sugarcane was shown to be purchased before inspection and 280 quintals of sugarcane was shown as private sugarcane and in the records, 867.74 quintals of sugarcane was mentioned for crushing. He also prepared the inspection note Ex.Ka-1 and appellant-accused Nem Chandra Sagar also signed on it. 4 9. P.W.2 is K.P. Srivastava who has stated that in the year 1989, he was posted as Khandsari Inspector, Rudrapur. On 15.1.1989 and 27.1.1989, he inspected appellants’ unit M/s Sagar Sugar Industries. On 15.1.1989, appellant-accused Nem Chandra was found present there. The unit was being run by non-hydraulic process though the licence for hydraulic process was granted to the appellants-accused. At the time of inspection, 100 quintals of sugarcane and 20 quintals of Gur was found there. However, no entry with regard to the crushing and manufacturing of sugarcane as well as about the stock of sugarcane was found in the register. He also prepared the inspection note Ex.Ka-2. On 27.1.1989 also, he inspected the Khandsari Unit of appellants-accused and the son of appellant-accused Nem Chand namely Harish Kumar was present there. On the spot, a bullock cart and 50 quintals of sugarcane was found there. Some sugarcane was also found loaded in the bullock cart. However, no documents were made available to him. He also prepared the inspection note Ex.Ka-3 on the spot. He further stated that the appellants-accused were granted licence to run their Khandsari Unit by hydraulic process but the said unit was not being run as per the procedure prescribed in the licence. He also proved the sanction accorded by District Magistrate for prosecuting the appellants-accused, i.e. Ex.Ka-4. Thereafter, he filed charge sheet against the appellants-accused, i.e. Ex.Ka-5. 10. Thereafter, the statements of appellants-accused were recorded u/s 313 of Cr.P.C. and the oral and documentary evidence was put to them in question form. Appellant-accused Nem Chandra has stated that he was granted licence for non-hydraulic earlier and subsequently he took licence to run the crusher by hydraulic process, but he could not purchase the hydraulic machine, because 5 his father was murdered. He further stated that he was not aware that he was running an undersized machine though licence for oversized machine was given to him. Thus, he did not commit any offence intentionally. His licence was being renewed year to year. He also stated that he could not realize his mistake. Appellant-accused Pothi Ram denied the allegations made against him. However, both of them have admitted that they were running crusher having size 28 x 35.5. cm, 3 roller, non-hydraulic, non- sulphitation, though licence for hydraulic crusher having size 28 x 35.5 cm, 3 rollers hydraulic, non-sulphitation, 7- boiler Meerut type and one centrifugal pump was granted to them. 11. Sri S.K. Aggarwal, learned Sr. Advocate has argued that the prosecution has not proved its case against the appellants-accused beyond reasonable doubt. I do not find any substance in this argument. From the evidence discussed above, it is proved from the statements of P.W.1 Nirmal Kumar Jain and P.W.2 K.P. Srivastava, supported by the contents of the inspection notes (Exts.Ka-1, Ka-2 and Ka-3) that in the crushing season 1988-89, though the appellants-accused Nem Chandra Sagar and Pothi Ram, Proprietors of M/s Sagar Sugar Industries, Village Sunkhara, Post Nakatpura, Distt. Nainital, now Distt. U.S. Nagar, were granted licence to run a power crusher of 28 x 35.5 cm. in size with 3-rollers, hydraulic non-sulphitation with 7-Meerut type boilers, but on 15.1.1989, at the time of inspection, the appellants- accused were running their unit with the non- hydraulic power crusher of 28 x 35.5 cm with three-rollers with only 5-Meerut type boilers, as is clear from the perusal of the inspection note Ex.Ka-2. On 27.1.1989, similar position was found as is clear from the inspection note Ex.Ka-3. Likewise as per Inspection Note dated 22.2.1989 6 (Ex.Ka-1), again inspection was done and it was found that the crusher was being run with non-hydraulic crusher machine with three rollers with only 5-Meerut type boilers and inspection note Ex.Ka-1 was also prepared. Even appellant-accused Nem Chandra has admitted that he was granted licence for non-hydraulic earlier and subsequently he took licence to run the crusher by hydraulic process, but he could not purchase the hydraulic machine, because his father was murdered. He further stated that he was not aware that he was running an undersized machine though licence for oversized machine was given to him. His licence was being renewed year to year. He also stated that he could not realize his mistake. Thus, both the appellants- accused have clearly violated Condition No.3 of the licence granted to them so as to run the aforesaid crusher and, therefore, sanction Ex.Ka-4 was obtained by P.W.2 K.P. Srivastava, Khandsari Inspector to prosecute the appellants-accused u/s 3/7 of the Act. 12. Apart from above, even a perusal of document Ex.Ka-6 goes to show that both the appellants-accused, proprietors of the aforesaid Khandsari Unit, were found guilty during the crushing season 1983-84 for running the unit without obtaining the licence for which each of them was sentenced to fine of Rs.300/-. From the year 1984-85 to 1986-87 also, they were found guilty of continuously using the different machinery than sanctioned to them, for that each of them was released on probation of good conduct for one year by executing a personal bond of Rs.2,000/- and by furnishing two sureties each in the like amount. In the year 1987-88, they run their crusher without obtaining the licence and for the year 1988-89, they also used the different machinery than sanctioned to them by way of licence. Thus, from the above-said facts 7 and circumstances of the case, it is proved that the appellants-accused are the habitual offenders and even after their conviction and sentence again and again, they are continuing in committing the crime of the same nature. 13. From the evidence as discussed above and as per the admissions of the appellants-accused and also after perusing the inspection notes aforesaid, it is proved beyond reasonable doubt that the appellants-accused Nem Chandra Sagar and Pothi Ram, Proprietors of Firm M/s Sagar Sugar Industries, Village Khunsara, Post Nakatpura, P.S. Sitarganj, violated the terms and conditions of the licence granted to them and, therefore, according to Order 8 of the U.P. Khandsari Sugar Manufactures Licensing Order, 1967, they committed an offence punishable u/s 7(1)(a)(ii) r/w Section 3(2)(a) of the Act. I concur the view taken by the trial court in convicting and sentencing the appellants-accused as discussed above. 14. For the reasons as recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 27.4.1993 passed by Special Judge (E.C. Act), Nainital in Special Trial No.4/1990, State through Khandsari Inspector, Rudrapur Vs. Nem Chandra Sagar & Pothi Ram, convicting and sentencing the appellants/accused as discussed above, is hereby affirmed. The appellants are on bail. Let them be taken into custody forthwith to serve out the sentence as imposed against each of them. 15. A copy of this order shall be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) April 10, 2009 Rajeev Dang