CRIMINAL APPEAL No.355 OF 1993 ( In the matter of an application under section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 18th October, 1993 passed by Shri Nand Kishore Narayan Sinha, Special Judge E.C. Act, Aurangabad in G.R. No. 03 of 1989) ********* GOPAL PRASAD GUPTA, SON OF RAM KHELAWAN PRASAD GUPTA, RESIDENT OF VILLAGE DEB, POLICE STATION DEB IN THE DISTRICT OF AURANGABAD……………………………….………………………………….APPELLANT VERSUS THE STATE OF BIHAR ……………………………..………………………RESPONDENT FOR THE APPELLANT :- MR. ARUN KUMAR TRIPATHY, A.C. FOR THE S T A T E :- MR. R. N. JHA, A.P.P. *********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Mr. Arun Kumar Tripathy appears as Amicus Curiae in this appeal. At the instance of Jagdish Singh (PW 7), the First Information Report was instituted on 02.02.1989 at 7:30 PM in which it is stated that he went to the shop of Gopal Prasad Gupta and found that one Fakira Sao (PW 6) was purchasing four and half bags of sugar. The informant wanted to purchase ten kgs. of sugar but Gopal Prasad 2 Gupta demanded Rs. 7.50 per kilogram for the sugar. The informant was unable to pay the price. It is also alleged that Ganga Singh, Gopal Singh, Prahlad Singh and Fakira Sao came to the shop of Fakira Sao to purchase sugar. On the basis of the aforesaid information, the First Information Report was instituted. Thereafter, the Officer-in-charge, Dy.S.P. and the C.O. raided the shop of Fakira Sao and seized four and half bags of sugar from his shop. Seizure list was prepared in presence of Officer-in-charge and the C.O. It is also alleged that thereafter the Investigating Officer and the others conducted raid and found that five bags of sugar were recovered from the verandah of PW 4 and eight bags of sugar were recovered from the field of Ram Pati Chourasiya. Apart from that, several bags of sugar were also recovered from the house of Balwant Singh, Gopal Prasad Gupta (the appellant) and Keshwar Prasad Gupta. Gopal Prasad Gupta, the appellant is the wholesale dealer of sugar and the Investigating Officer came to know that Gopal Prasad Gupta had kept nine bags of sugar in the house of Sheorani Devi and eight bags of sugar were kept in the field of Rampati Chourasiya. Seizure lists (Exhibits 2 and 3) were prepared in presence of Naveen Kumar and Ram Sagar Singh, the C.O. The villagers disclosed during 3 investigation that Gopal Prasad Gupta had distributed eight bags of sugar to Keshwar Prasad Gupta, fair price dealer in Araria and Kailash Singh, another fair price dealer of Araria. It was also found that Gopal Prasad Gupta had given sixteen bags of sugar to Balwant Singh of village Kesore. The Investigating Officer searched the shops of the two fair price dealers and recovered six bags of sugar from their shops. The Investigating Officer also found that the stock register and distribution register was not maintained by these fair price dealers. On the basis of the aforesaid First Information Report and the allegation, the trial proceeded. Altogether seven witnesses have been examined in this case. PWs 1 and 2 have been declared hostile whereas PW 3 has been tendered for cross-examination. PW 4 Sheorani Devi has stated that she was leaving for her mill when two labourers came along with two bags of sugar which they disclosed belonged to Gopal Prasad Gupta. These labourers forcibly kept the above bags of sugar in the verandah of her house. This witness has also stated that her statement has been recorded and she put her thumb impression on that statement. Learned Counsel appearing on behalf of the appellant challenges the veracity of the statement of PW 4 on the ground that the labourers who allegedly 4 disclosed that bags belong to Gopal Prasad Gupta have not been produced by the prosecution to substantiate the allegation and as such the evidence of PW 4 should be rejected outright for these reasons. I find substance in the submissions on behalf of the appellant as it is only on the basis of the statement made by some unknown persons that PW 4 has alleged that the sugar bags belong to Gopal Prasad Gupta. PW 5 Rampati Chourasiya has stated that 5-6 labourers have forcibly kept six bags of sugar in his khalihan and have informed him that the bags belong to Gopal Prasad Gupta. This witness has been unable to disclose the names of the labourers and as such the evidence of PW 5 can not be given much credence. PW 6 Fakira Sao is sweet meat shopkeeper. There is allegation in the First Information Report that he had purchased four and half bags of sugar from Gopal Prasad Gupta after paying Rs. 2800/-. It is also stated that he took those bags to his sweet meat shop and had also fixed up with Gopal Prasad Gupta to buy 22 bags of sugar for which Gopal Prasad Gupta is said to have issued receipts. These receipts allegedly issued by Gopal Prasad Gupta have not been produced and exhibited. Prosecution has examined Fakira Sao as a witness and has been unable to substantiate that the said purchase 5 was made by Fakira Sao was in accordance with law. PW 7 is also a shopkeeper. According to PW 7, Fakira Sao was standing under a tree and was supervising the labourers who were carrying the bags of sugar on the THELA. It is stated that in the mean time, the police party reached near the temple where Fakira Sao was standing and Fakira Sao disclosed all the facts to the Police Officer in front of this witness. This witness, as noted above, is the informant of this case. It has been brought to the notice of the Court that the First Information Report gives a completely different story with respect to the purchase made by Fakira Sao whereas the evidence in the Court that sugar was being carried on a THELA by Fakira Sao and was recovered near the temple which is a completely different version to the case made out in the First Information Report. The First Information Report is the basis on which the prosecution case proceeds. Although it is not required that each and every detail should be mentioned in the First Information Report but the edifice of the prosecution case should at least be supported by the informant in his evidence before the Court. If the entire allegations and the versions are completely given a go-bye then it would be difficult for the Court to hold that the prosecution has been able to establish its case. 6 Mr. R. N. Jha, learned A.P.P., on the other hand, submits that the prosecution case that Fakira Sao had purchased sugar from Gopal Prasad Gupta is at least supported by the evidence of PW 7 and the circumstances surrounding the purchase or the place from where sugar is recovered should not be a circumstance to hold that the appellant would be entitled to be acquitted. In this case, co-accused Balwant Singh and Keshwar Prasad Gupta have been acquitted by the Trial Court itself on the ground that the subsequently seizure of the stock register by the Investigating Officer indicate that it was in accordance with law. Coming back to the case of the appellant Gopal Prasad Gupta, this Court finds it difficult to believe the testimonies of PWs 4 and 5 as their version that sugar bags belong to the appellant is not substantiated by the labourers who had allegedly disclosed this fact to these two witnesses. The Investigating Officer has not found the sale of sugar to sweet meat shopkeeper, namely, Fakira Sao (PW 6) to be an illegal transaction and as such it cannot be said that Gopal Prasad Gupta had illegally sold sugar to Fakira Sao. In this way, this Court finds that infact the prosecution has not been able to prove that the appellant is guilty of the offences under Section 7 of the Essential Commodities Act. 7 In the result, this appeal is allowed and the judgment and order dated 18th October, 1993 is set aside. The appellant is also discharged from the liabilities of the bail bonds furnished earlier in this case. ( Sheema Ali Khan, J. ) Patna High Court April 14, 2009 N.A.F.R./Anand