IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 41 of 2000 Date of decision: 06.05.2008 Dharam Pal Puri ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Anand Sharma with Mr. Jagan Nath, Advocates. For the respondent: Mr. J.S. Guleria, Law Officer. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant against the judgment of the Court of learned Special Judge, Shimla, dated 22.1.2000, vide which the appellant was held guilty under Sections 3 and 7 of the Essential Commodities Act read with Clause 3 of the H.P. Trade Articles (Licensing and Control) Order, 1981. The appellant was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/-. In default of payment of fine, the appellant was to undergo simple imprisonment for a further period of one month. Briefly stated the facts of the case are that on 2.11.1998, a raiding party headed by Sub Divisional Magistrate(Rural), Shimla and 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 comprising of two Inspectors of Food and Supplies, namely, PW-2 Smt. Neelam Sharma and another Inspector went to the shop of M/s Lachhman Dass Sain Ditta Mall, Kachighati Taradevi. The appellant was found present in the shop. 84 bags of wheat flour weighing 42 quintals were found lying in the shop. At the time of conducting of the raid, PW-1 Amitabh Avasthy, SDM(Urban), had also associated PW-5 Diwan Thakur an independent witness and other persons as members of the raiding party. The appellant/accused failed to produce any license to store the wheat flour in those premises. The wheat lying there was seized and was given on sapurdari of the accused. A report was also sent to the S.H.O. Police Station, Boileauganj and a case was registered and after investigation, the challan was filed a against the appellant. Charge was framed as detailed above and on conclusion of the trial, the learned trial Court held the appellant guilty as detailed above and convicted and sentenced him. I have heard learned counsel for the parties and have also gone through the record. The first point raised by the learned counsel for the appellant was that the wheat was being carried to the shop of the appellant at Anaj Mandi, Shimla and since the truck in which the wheat was being carried developed some mechanical defect, the wheat was unloaded on the road side and was not lying inside the shop and since there was a restriction for taking the truck and prohibition from 10.00PM to 6.00AM, therefore, the wheat was kept on the road side and in the mean while, raid was conducted and the wheat was taken in possession by 3 the raiding party. Thus, it was submitted that the wheat had not been kept inside the shop and was not transported to the shop at Anaj Mandi, Shimla. Therefore, no offence whatsoever was committed by the appellant. The appellant has been charged under Clause 3 of the Himachal Pradesh Trade Articles (Licensing and Control) Order, 1981, hereinafter referred to as ‘the Control Order’. A perusal of the same shows that a dealer is required to obtain a license for keeping all the food grains in a licensed premises for which he has to apply for the license and take necessary license for storage of the food grains at a particular place. According to Schedule-1, there is a limit to the quantity of wheat that can be kept in the licensed premises and accordingly, 20 quintals of wheat could have been kept by the appellant in his shop even at Anaj Mandi, Shimla. Therefore, the main point arises for consideration is as to whether the appellant could keep the wheat stock where the raid was allegedly conducted by the Sub Divisional Magistrate and as to whether he could keep it in excess of 20 quintals as prescribed in ‘the Control Order’. Coming to the first plea that the appellant had not kept the wheat inside the shop, the learned counsel for the appellant has relied upon the testimony of PW-5 Diwan Thakur, witness to Recovery Memo Ext. PA. He stated that wheat flour was not stored in those garages. It was lying outside the store by the side of the road. This witness was declared hostile and was allowed to be cross-examined by the learned P.P. for the State. He admitted his signatures on search, seizure and 4 Sapurdari Memo Ext. PA. He admitted that he has studied upto graduation level and he had signed Ext.PA after going through its contents. He was not able to offer an explanation as to why he had signed Ext. PA that the wheat flour was lying inside the shop. A perusal of the statement shows that the learned trial Court had also observed that the witness has been asked repeatedly to explain the contradiction in his statement in the Court but he is keeping silent on this statement. The learned trial Court had also found that he appears to have deposed falsely. Apart from the statement of PW-5, there is a statement of PW-1Amitabh Avasthy, Incharge of the raiding party who has stated about the facts and has proved the Memo Ext.PA vide which wheat flour was seized and given on sapurdari to the accused. He has stated that the accused was having wheat flour in large quantity , but did not possess licence to keep so much quantity of wheat flour. The recovery Memo Ext. PA containing the details of wheat recovered was duly signed by him. PW- 2 Smt. Neelam Sharma, Inspector, Food and Supplies, has also clearly proved Ext.PA which was also signed by her as one of the witnesses. She has also stated that 84 bags of wheat flour, weighing 42 quintals had been kept in the premises. There are no allegations as against this witness. There was no reason to falsely implicate the accused and there are no such allegations made to this witness. The mere fact that the witnesses are public officers is not sufficient to hold that their statements cannot be relied upon in absence of independent corroboration. 5 According to law, statement of official witness cannot be discarded merely because of his official status until and unless there re some proof on record to show that he has any ill will to falsely implicate the accused. Statements of both these witnesses coupled with the statement of PW-5 Diwan Thakur inspire confidence and they clearly proved that 84 bags of wheat flour weighing 42 quintals were recovered from the shop of the appellant and not outside the shop. Coming to the next question raised during the course of arguments that these bags of wheat were being taken to the main shop of the appellant at Anaj Mandi, Shimla for which he has licence Ext.DA proved in his statement. The appellant has not produced on record bills of purchase of this wheat for being transported to this licensed premises. There is no proof on record as to in which truck No. these bags of wheat were being carried and who was the driver of the truck, and whether the truck in question developed some mechanical defect and the articles were unloaded at that time. It was not for the complainant to prove if the accused was having any bills or what was the truck No. or who was the driver of the truck and the guilt of the accused stands established once he was found in possession of the wheat in the premises for which he had no licence . The appellant has proved the licence Ext.DA in his statement recorded under Section 313 Cr.P.C., though it was required to be proved by summoning the record from the office of Licensing Authority, but since it was tendered in evidence and no objection was raised by the learned P.P. at that time, this is being looked into. A perusal of Ext. DA shows 6 that the appellant was having a valid licence to store the wheat at the premises known as M/s Lachman Dass Sain Ditta Mall, Anaj Mandi, Shimla. However, the licence is very clear that this was issued subject to the provisions of the Himachal Pradesh Trade Articles (Licensing and Control) Order, 1981, under which there was restriction to store more than 20 quintals of wheat. Therefore, the appellant was not entitled to import this quantity of wheat to be taken to his shop at Anaj Mandi, Shimla and the facts of the case do not prove that these wheat flour was being transported to Anaj Mandi, Shimla, the licensed premises. Since the wheat being carried was in excess. The appellant has also not proved in his defence as raised by him that the truck had developed some mechanical defect and he had unloaded wheat outside the godown near Hanuman Temple. In case there are some bills as per the provisions of the rules and the wheat flour had to be kept at the place where it was recovered, he has intimate the department within 24 hours and there is nothing that he took any steps in this regard and this plea was also considered by the learned trial Court but has not found favour with the learned trial Court. The next plea raised by the learned counsel for the appellant was that the appellant was only a partner of the firm and since there are four partners in the firm, he cannot be held solely responsible for the offence in question. To substantiate his plea, the learned counsel for the appellant had relied upon the following decisions:- The decision in Sabitha Ramamurthy and another Vs. R.B.S. Channabasavaradhya, (2006) 10 Supreme Court Cases 581, 7 a perusal which shows that the case to be tried was under Section 138 of the Negotiable Instruments Act and after considering the provisions of the Act, it was held by the Apex Court that all the Directors are responsible for clearing of the liability under Section 141 of the Negotiable Instruments Act. The decision in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, (2005) 8 Supreme Court Cases 89, also shows that the offence was under Section 138 of the Negotiable Instruments Act and in regard to dishonour of cheque and liability of the company. It was observed that the essential averments to be made in complaint filed in respect thereof. It is also observed that it is necessary to aver that at the time the offence was committed the person accused was in charge of, and responsible for the conduct of the business of the company. Without this averment being made in the complaint, the requirements of Section 141 cannot be said to be satisfied. The decision referred to above was under Negotiable Instruments Act and the observations made are peculiar to the facts of this case. Coming to the facts of the case, the complaint was filed against the appellant that he was incharge of the shop from which the wheat in question was recovered. The allegations were made as against him and trial was accordingly conducted. There is nothing in the cross- examination of the witnesses as no suggestion was made that the appellant was one of the partner or that there are four partners or that the appellant was not the incharge of the business at the relevant time. No 8 record was also summoned to prove that apart from the appellant there are other partners and, therefore, the appellant is not solely responsible for the conduct of the business. A perusal of the statement of accused /appellant recorded shows that no such plea was taken by him at that time and, therefore, this plea was never taken under Section 313 Cr.P.C. which does not stand substantiated from the record of the case and as such, this plea cannot be accepted. Apart from the above, a perusal of the evidence shows that there is statement of PW-4, owner of the building including the garages, who has stated that he has let out the premises to be used as godown for storing goods. He clearly stated that that the garages have been let out to accused Dharam Pal and there was no cross-examination that these premises were not let out to Daram Pal accused or that there were other persons also. From which ever angle, the plea is considered, this plea has no substance and this plea is accordingly rejected. Coming to the last point raised by the learned counsel for the appellant that the Notification issued under the Transit Rules had elapsed and, therefore, the appellant was not liable. He has taken this plea in the grounds of appeal. But from cross-examination of the witnesses, it is clear that no such plea was taken at that time when the notification issued had elapsed and, therefore, the appellant was not responsible. This plea was also taken before the learned trial Court and no findings have been given on this plea by the learned trial Court. This plea being legal can be considered by this Court but there is no merit to show 9 that the Notification issued under the provisions of the Transit Rules had lapsed and, therefore, this plea is repelled being devoid of any force. From the above discussion of the evidence, it is clear that the guilt of the appellant stands established that he has violated the provisions of Clause 3 of the H.P. Trade Articles (Licensing and Control) Order, 1981, which is punishable under Section 3/7 and therefore, the findings of the learned trial Court holding the appellant guilty can be said to be based upon correct appreciation of evidence and law and are liable to be affirmed. The offence is punishable for imprisonment for a term which shall not be less than three months but which may extend to two years and shall also be liable to fine which shall not be less than twenty-five thousand rupees. A prayer has been made by the learned counsel for the appellant for releasing the appellant on probation, but no case is made out for releasing the appellant on probation. Once he has been held guilty and the learned trial Court had taken lenient view and awarded minimum prescribed sentence, the sentence imposed upon the appellant by the learned trial Court calls for no interference. Learned counsel for the appellant has also relied upon the decision in Velji Vs. State of Rajasthan, 1997 STPL(LE-Crim) 5090 Raj, in which sentence of imprisonment under the said Section 7 of the Essential Commodities Act was reduced to already undergone while the sentence of imprisonment of fine was enhanced to Rs.10,000/-, only photo copy was shown during arguments. No ground is made out to 10 enhance the fine and to set aside the substantive sentence, the plea raised by the learned counsel for the appellant is rejected. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The appellant shall surrender to the learned trial Court or in the alternative, the learned trial Court shall issue warrants of arrest to the appellant/accused to serve the sentence imposed upon him. A copy of the judgment be sent to the learned trial Court for information/necessary compliance. Record be sent to the Court concerned forthwith. ( V.K. Ahuja ) May 06, 2008 Judge (BSS) 11