CRIMINAL APPEAL No.282 OF 1993 *** Against the judgment and order dated 27.8.1993 passed by Sri Philip Topno, Additional Sessions Judge-cum-Special Judge (E.C. Act), Begusrai in G.R. Case No.938/86 arising out of Balia P.S. Case No.88 of 1986. *** INDRA DEO SINGH---------------------------------Appellant Versus THE STATE OF BIHAR-----------------------------Respondent *** For the Appellant : - Mr. Sanjay Sinha, Advocate (Amicus Curiae) For the State : - Mr. Ali Mozaffar, Addl. P.P. *** P R E S E N T THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM *** S.M.M.Alam, J. This appeal is directed against the judgment and order dated 27.8.1993 passed by Shri Philip Topno, Additional Sessions Judge-cum-Special Judge(E.C.Act), Begusarai in G.R. Case No. 938/86 arising out of Balia P.S. Case No.88 of 1986 whereby he has been pleased to convict the appellant Indra Deo Singh for the offence under Section 7 of the Essential Commodities Act and sentenced him to undergo rigorous imprisonment for three months. 2. The prosecution case, as per the written report submitted by P.W.3 Uday Kant Jha, Anchal Adhikari of Balia through his office letter no.634 dated 1.5.1986, in brief, is that on receiving some complaint from the villagers of village Tetri, Sri J.P. Lakra, Block Development Officer-cum-Anchal Adhikari of Balia visited the P.D.S. shop of the appellant on 24.5.1986 at 11 A.M. and found the shop closed. Although there was a display 2 board hanging at the shop but the same did not bear the stock position of the articles available in the P.D.S. shop and also did not indicate the rate of the articles. At that time, the appellant was sitting in a nearby cloth shop. He was called from there and then Sri J.P. Lakra made enquiry from him for closing of the shop but the appellant did not give any reply for keeping the shop closed. He was asked by Sri J.P. Lakra to produce the register of the shop but on the pretext of bringing the register; the appellant went to his house and did not return back. Thereafter a peon was sent to the house of the appellant but he was not found there. It was suspected by Sri J.P. Lakra that the appellant might have sold the articles of P.D.S. shop in black-market. Thereafter Sri J.P. Lakra gave information to S.D.O., Begusarai through his letter no.758 dated 29.4.1986, who directed Sri Uday Kant Jha, Anchal Adhikari, Balia (P.W.3) to lodge the first information report against the appellant. Thereafter Sri Uday Kant Jha submitted the abovementioned written report to the police on the basis of which Balia P.S. Case No.88 dated 9.5.1986 under section 7 of the Essential Commodities Act was instituted against the appellant. 3. The investigation of the case was handed over to A.S.I, Suraj Kumar Thakur of the said Police Station who investigated the case and submitted charge sheet against the appellant, on the basis of which cognizance was taken and the appellant was put up on trial and by the impugned judgment, he was convicted for the offence under Section 7 of the E.C. Act. 3 4. The defence of the appellant is that he is innocent and he has been falsely implicated in this case by Sri J.P. Lakra, B.D.O.-cum-Anchal Adhikari, Balia who had gone to the appellant’s place for recovery of loan amount taken by the appellant but the appellant was not in a position to refund the loan amount which caused annoyance to the said B.D.O. who made out a false case against the appellant. 5. On perusal of the lower court records as well as judgment of the trial court, it appears that during the trial the prosecution examined altogether seven witnesses, namely, Daya Ram Hazari (P.W.1), Siyaram Hazari (P.W.2), Uday Kant Jha (P.W.3), Sheoyogi Jha (P.W.4), Bachandeo Sharma (P.W.5), Ram Shankar Singh (P.W.6) and Rajendra Kumar Raut (P.W.7). Out of the abovementioned witnesses, P.Ws. 1 and 2 who are independent witnesses, have not supported the prosecution case. P.W.3 is simply a formal witness who has deposed that on the order of the S.D.M. he had lodged first information report (Ext.1) against the appellant. In his cross-examination he has deposed that in his presence B.D.O. had not made any inspection of the P.D.S. shop of the appellant. Thus, P.W.3 is out and out a formal witness. P.W. 6 is also a formal witness. He has proved the formal F.I.R. of this case which has been marked Ext.2. Thus, the case of the prosecution hinges upon the testimony of P. Ws. 4, 5 and 7. 6. P.W.4 is a Jansewak in Balia Block. His evidence is that on 24.4.1986 he had gone to village Tetri along with B.D.O., Balia Anchal for recovery of loan amount and in 4 connection with recovery of loan, B.D.O. had visited the house of the appellant Indra Deo Singh and the said B.D.O. had asked the appellant to repay the loan but the appellant told him that he would pay back loan after one week. P.W.4 has further deposed that on way, B.D.O. saw the P.D.S. shop of the appellant and there was a display board hung on the shop. The B.D.O. demanded papers of the P.D.S. shop of the appellant but the appellant did not produce the paper. Similar statement has been made by P.W.5 and P.W.7. P.W.5 was a peon at Balia Prakhand at the relevant time and P.W.7 was Prakhand Krishi Padhakhari posted at Balia at the relevant time. Both the witnesses have deposed that on 24.4.1986 the B.D.O., Balia had visited Tetri village in connection with recovery of loan and he had asked the appellant to repay loan who asked for a week’s time for repayment of loan. Both the witnesses have also deposed that the B.D.O. had also visited the P.D.S. shop of the appellant and demanded register etc. of the said shop from the appellant but the appellant did not produce the relevant papers. 7. It has been submitted by the learned Advocate of the appellant that admittedly, P.Ws. 4, 5 and 7 are not independent witnesses and they being the staff of Balia Block are highly interested witnesses. He has further pointed out that P.Ws. 4 and 5 both have admitted that they have not been examined by the police and for the first time they were making statements in court with regard to the alleged inspection of P.D.S shop of the appellant. The learned Amicus Curiae submitted that in 5 view of the fact that the Investigating Office had not recorded their statements under Section 161 of the Cr.P.C., as such their evidence should not be relied upon. He further submitted that in this case the enquiring officer i.e. B.D.O. Sri J.P. Lakra and the Investigating Officer were not examined by the prosecution and the non-examination of the abovesaid witnesses is fatal to the prosecution case and so, on this score alone, the appellant should be acquitted. 8. From the evidence of P.Ws.4, 5 and 7, it appears that Sri J.P. Lakra, who was the then Block Development Officer, had gone to village Tetri for the purpose of collection of loan and not for the purpose of inspecting the P.D.S. shop of the appellant. It further transpires from the evidence of the above said witnesses that there was absolutely no complaint against the appellant by any customer and so, there was no opportunity for Sri J.P. Lakra, the then B.D.O., Balia to inspect the P.D.S. shop of the appellant. The defence of the appellant is that the said B.D.O. had come to the house of the appellant for collection of loan and when the appellant asked for a week’s time for repayment of loan the said B.D.O. became aggrieved and falsely implicated the appellant. The evidence of P.Ws. 4, 5 and 7 establishes beyond doubt that on the alleged date of the occurrence Sri J.P.Lakra had gone to village Tetri for collection of loan and he asked the appellant for payment of loan, who sought one week’s time for repayment of the loan. Thus, the defence of the appellant is established from the evidence of the prosecution witnesses itself. This view further finds 6 support from the fact that since there was no complaint against the appellant from any corner, as such, there was no occasion for Sri J.P.Lakra, B.D.O. to make spot inspection of the P.D.S. shop of the appellant and so, there is possibility that only to teach lesson to the appellant for non-payment of loan, a concocted case was instituted against the appellant. Moreover, the non- examination of Sri J.P.Lakra, who is said to have made inspection of the shop of the appellant and on his report, this case was initiated, is fatal to the prosecution case and in his absence it cannot be held that the prosecution has been able to substantiate its case. Moreover I am also of the view that the non- examination of the Investigating Officer has also caused prejudice to the appellant as the defence could not be able to bring this fact on record that on the day of alleged inspection the stock position of the shop was ‘Nil’ and so there was no necessity to open the P.D.S. shop. 9. In the result, I find merit in this appeal and as such, the same is hereby allowed and the judgment and order of conviction and sentence passed against the appellant under Section 7 of the Essential Commodities Act are hereby set aside. The appellant is acquitted of the charge of Section 7 of the E.C. Act. The appellant is on bail, as such he is discharged from the liability of his bail bonds. (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 15th July, 2008 N.A.F.R. (B.T.)