CRA No.1127-SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1127-SB of 1999 Date of Decision: 30.07.2010 Ashok Kumar and another .......Appellants Versus State of Haryana .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. S K Verma, Advocate/Amicus Curiae for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. 1. In the present appeal, challenge is made to the judgment dated 27.10.1999/2.11.1999 (for short 'impugned judgment'), passed by Special Judge, Faridabad (hereinafter referred as the 'trial Court'), vide which the appellants stand convicted for commission of offence punishable under Section 7 of the Essential Commodities Act (in short 'Act') and thereby a sentence to undergo rigorous imprisonment for a period of 1 year with a fine of Rs.2000/-, in default of payment of fine, to further undergo rigorous imprisonment for a period of 3 months, has been imposed upon the accused- appellants. 2. The facts of the present case have been mentioned in para 2 of the impugned judgment of the learned trial Court, which reads as CRA No.1127-SB of 1999 -2- under:- "On 15.9.1998 Bijender Singh PW-2, who was posted as Asstt. Food & Supplies Officer in Faridabad, received a secret information regarding unauthorised sale of blue kerosene in the area of Rajiv Nagar, Faridabad. He then conducted a raid there at about 3.30 p.m. after associating with himself Subhash Sharma Inspector Food & Supplies, Siri Bhagwan Sub Inspector Food and Supplies. PW-3 Rishi Pal ASI, who was then posted as Incharge of Police post DLF area, and some constables. At the time of raid, the accused Sunil Kumar and Ashok Kumar were found indulged in unauthorised sale of blue kerosene in house No.1063 situated in Bhur Colony, Faridabad. Six drums containing 220 litres of blue kerosene in each and one drum containing 20 litres of blue kerosene were found in their stock. One measurement of 5 litres and another of one litre, as also some other apparatus like a keep and tin were also found there. Three bottles were drawn as samples from out of the drum containing 50 litres and 3 bottles were drawn as samples from out of the remaining six drums. All these six sample bottles were sealed with the seals of DFSC Faridabad. All CRA No.1127-SB of 1999 -3- the seven drums were also sealed with the same seal and the entire case property was then seized under memo Ex.PB by ASI Rishi Pal which was witnessed by the remaining members of the raiding party. A complaint in writing vide Ex.PC was then addressed by Bijender Singh AFSO to the Incharge, Police Post DLF Faridabad, namely, ASI Rishi Pal for registration of a case who forwarded the same at 5.05 p.m. under his endorsement Ex.PC/1 through constable Sat Pal for registration of a case upon which formal FIR bearing no.1159 was recorded at the Police Station Central Faridabad at 5.30 p.m. by SI Rattan Singh and a copy thereof is Ex.PC/1." 3. Both the accused were arrested on the spot by ASI Rishi Pal as they had no licence for the storage and sale of kerosene. After completion of investigation, the accused were sent to face trial under Section 7 of the Act by SHO, Police Station Central, Faridabad. The accused were charge-sheeted for committing offence under Section 7 of the Act to which they pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as 5 witnesses, namely, C. Janak Raj as PW1; AFSO Bijender Singh as PW2; ASI Rishi Pal as PW3; MHC Mukhtiar Singh as PW4 and Hari Shankar as PW5. Remaining witnesses were given up being unnecessary. CRA No.1127-SB of 1999 -4- 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the circumstances appearing against them in the prosecution evidence. They denied the allegations in prosecution case and pleaded their false implication in this case on account of some altercation between them and the raiding party. Otherwise, they denied their nexus with the shop from which recovery of kerosene was allegedly effected. 6. After hearing both the parties, the learned trial Court, vide its judgment/order dated 2.11.1999, convicted and sentenced the accused for the offences and term, as mentioned at the outset. Hence this appeal. 7. Learned counsel for the appellants has submitted that there is no evidence on record regarding the actual sale of kerosene by the accused. He has further submitted that in the absence of evidence of actual sale, place of recovery even from shop becomes immaterial. 8. Learned counsel has further submitted that no independent witness was joined despite the fact that the search was carried out in shops which are located in the thickly-populated area. Non-joining of any independent witness from the locality by the Police at the time of search & seizure has rendered the case of the prosecution doubtful. 9. Learned counsel has further argued that there is no evidence on record to prove that the premises from where the alleged recovery was effected was in the effective possession of the appellants, either as landlord or tenant. CRA No.1127-SB of 1999 -5- 10. Learned counsel has further stated that only the Officer In- charge of the Police Station or the officer duly authorized in writing can arrest any person under the Act. The arrest of the accused- appellants was made by ASI without any authority of Officer In- charge in writing which is illegal. 11. On the other hand, learned counsel for the State has argued that the accused-appellants were found indulged in unauthorized sale of blue kerosene oil. The accused were arrested from the spot as they had no licence for the storage and sale of the kerosene oil. 12. I have heard learned counsel for the parties and perused the record. 13. The evidence that has come on record against the appellants is in the shape of testimonies of official witnesses who were members of the raiding party and the seizure of 1370 litres of kerosene oil, samples of which were sent to FSL in a sealed condition whereupon it was confirmed by the FSL also that the samples collected at the time of raid were indeed that of kerosene oil. 14. A perusal of the deposition of the official witnesses before the trial court, notably AFSO Baljinder Singh who appeared as PW2 and ASI Rishi Pal who appeared as PW3 inspires complete confidence in the prosecution case. There is no suggestion put to either of the two above named witnesses in their cross examination that they had some previous enmity with the appellants or were in some way inimical towards them. In the absence of such a suggestion even or any proof CRA No.1127-SB of 1999 -6- to this effect, it defies logic that the raiding party would falsely implicate the appellants. 15. The most important link between the offence with which the appellants have been charged and the culpability of the appellants is the fact that at the time of raid by the police along with officials of the Food and Supply Department, both the appellants were found to be in control of the two shops from which kerosene oil was recovered. This coupled with recovery of measuring instruments leads to irresistible conclusion that the appellants were in possession of 1370 litres of kerosene oil for sale. 16. Non-joining of independent witnesses is undoubtedly an important fact to test the veracity of the prosecution case but relevance of the same has to be judged on an individual basis. PW2 Baljinder Singh has specifically deposed in his cross examination that no one from the general public was ready to come forward to join the investigation. More importantly, in the early part of his cross examination, he also stated that on seeing the raiding party, persons present at the scene of offence immediately left the place. It is probable and reasonable to assume that infact people present around the shop were infact prospective customers and it would be imprudent to expect them to come forward to assist the police investigation. Therefore non- joining of the independent witnesses cannot prove to be fatal to the prosecution case. 17. Even though PW5, who is the owner of the shops in CRA No.1127-SB of 1999 -7- question from which recovery of kerosene oil was effected, stated that the appellants were not his tenants, in view of the fact that he was got declared by the prosecution as having been won over, his testimony loses all relevance. 18. The only defence evidence has come in the shape of the testimony of DW1 who deposed that the appellants were picked up from their residence in the evening of the date of raid. He also submitted that he went to the police station also but was shunted out. If at all there was any truth in the same, he should have reported or complained to some authority under law regarding the illegal arrest of the appellants but there is nothing on record to show any such effort on his part. He could have atleast enlisted the support of locality residents but not even that was done which shows that a weak attempt at creating defence has been made by the appellants. 19. It has been argued by the ld. counsel for the appellants that ASI Rishi Pal did not have written authorisation for arresting the accused. Even if for a moment it is presumed to be correct, that itself can not negate the whole prosecution case unless it is proved that the seizure of kerosene oil was not as per law or there was tampering with the samples sent by police authorities to the FSL for examination. As per the evidence on record, the case property was intact throughout and there is no allegation or suggestion of tampering with the same. In the instant case, the accused were sent to face trial under Section 7 of the Act by SHO, Police Station, Central Faridabad. The FIR- CRA No.1127-SB of 1999 -8- complaint was lodged by the Assistant Food and Supply Officer, Faridabad City, which is addressed to the Incharge, Police Post, DLF Faridabad, who was competent to investigate the matter. 20. In view of the above discussion, this court is unable to differ with the view taken by the ld. trial court regarding the culpability of the appellants. Resultantly, the appeal fails. The appellants are stated to be on bail. There bail bonds stand cancelled and they are ordered to be taken into custody forthwith. 21. Dismissed. 22. Since main appeal is decided by this judgment, therefore, the misc. applications pending, if any, shall also stand disposed of. ( JITENDRA CHAUHAN ) July 30, 2010 JUDGE atulsethi