Jagarnath vs State Of U.P.
2021 Latest Caselaw 10260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
A.F.R
 
Reserved on 2.8.2021
 
		 Delivered on 13.08.2021
 
Court No. - 78
 
Case :- CRIMINAL APPEAL No. - 2051 of 1993
 
Appellant :- Jagarnath
 
Respondent :- State of U.P.
 
Counsel for Appellant :- V.Singh
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard learned counsel for the appellant and learned AGA for the State.

2. This criminal appeal has been filed against the judgment and order dated 10.11.1993 passed by Special Judge, Varanasi in Criminal Case No. 52 of 1986 (State Vs. Jagarnath), Crime No. 356 / 1982, Police Station - Sigra, Varanasi convicting the appellant under Section 3/7 of Essential Commodities Act and sentencing him to undergo two years rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine, further six months rigorous imprisonment.

3. In brief, the prosecution case is that on 17.10.1982 at about 9:15 p.m., Station House Officer, Sigra received an information that one Jagarnath has stored kerosene oil in his house in illegal manner, in order to sell it, in black market. The SHO, Sigra along with other police officials and public witnesses - Sahablal and Paras reached at the house of Jagarnath and on search found 200 litres of kerosene oil kept in a drum in the corner of the outer room of the house. The accused could not show any licence. The Raiding Party took the drum of kerosene oil in its possession, prepared the recovery memo at the spot and lodged a First Information Report at police station - Sigra on the same day at about 10:30 p.m. Investigation commenced and after completion of investigation, charge sheet was submitted. Statement of the accused was recorded and particulars of the offence stated to him. The accused pleaded not guilty and claimed for trial. The prosecution produced four witnesses. Statement of accused under Section 313 Cr.P.C. was recorded in which accused denied the prosecution case and further stated that his brother - Sita Ram is inimical to him, who falsely got him implicated in this case in connivance with the local police. Learned trial court after hearing the arguments by the impugned judgment held accused guilty and sentenced him.

4. Learned counsel for the appellant contended that the place of recovery of kerosene oil is an open place outside the house and in the premises where other families also reside. The appellant has no concern whatsoever with the seized kerosene oil which belongs to his brother - Sita Ram. The kerosene oil has been recovered from an open chabutara, so it cannot be said that it has been recovered from the possession of the accused. Learned counsel for the appellant further submitted that prosecution has led no evidence that kerosene oil was kept there for sale and there is no evidence to show that appellant was selling it. No instrument or material has been recovered which can show that it was kept for sale. The prosecution has failed to prove that the seized kerosene oil was recovered from the exclusive possession of the appellant. As such the conviction and sentence passed by the trial court is against the fact and law.

5. Learned AGA submitted that kerosene oil has been recovered from chabutara which is outer portion of the house of the appellant. The prosecution witnesses have proved the recovery of the kerosene oil. The accused / appellant has failed to produce any evidence in defencee that seized kerosene oil belongs to his brother - Sita Ram. The huge quantity of the kerosene oil itself indicates that it was kept for black marketing. The learned trial court has rightly examined the evidence on record and finding recorded by the trial court is reasonable and proper and there is no perversity in it.

6. Out of the four witnesses produced by the prosecution, two witnesses, namely constable - Krishna Bihari Misra - P.W.-1 and D.P. Shukla, the then Station House Officer, Sigra - P.W.-2 are the witnesses of facts. They are members of the police party that raided the house of the accused and made the recovery. Both the witnesses supporting the FIR version in their examination-in-chief have stated that two hundred litres of kerosene oil kept in a drum in the outer portion of the house of the accused in an open room was recovered by them. The site plan (exhibit ka-6) also indicates the place where the drum was kept. It is in the north-east direction inside the house of accused in an open room called Osara. Learned trial court has appreciated the entire oral evidence of both these witnesses and found it reliable. The defence has cross examined the two prosecution witnesses at length but there is nothing in their cross examination which affects their reliability. No major discrepancies or contradictions have been detected and learned trial court has rightly believed their testimony. Their oral testimony cannot be disbelieved simply for the reason that they are police personnels.

7. The contention of learned counsel for the appellant is that the recovery of kerosene oil is from the house where many families reside and appellant and his brothers were living separately in the aforesaid house and recovery has been made from an open place, so the prosecution has failed to prove that the seized kerosene oil was recovered from the exclusive possession of the appellant. Learned trial court has considered this aspect and has observed that; "P.W.-1 - Krishna Bihari in his deposition has stated that the house where the accused resides certain other persons also reside therein but this witness has also deposed in his cross examination that the portion wherefrom the kerosene oil was recovered, was in possession of accused - Jagarnath and accused told the police party that this kerosene oil was to be given by him to his nephew - Raj Kumar." The place of recovery is outer portion of the house but inside the house in the form of an open room. Learned trial court has further observed that; "the open chabutara adjacent to the road belongs to the portion of the house of the accused Jagarnath and it is commonly seen that in densely populated areas, houses are having open chabutaras or an open room type structure adjacent to the houses and the people uses these places for keeping the domestic articles." The reasoning given by the trial court is proper and argument of the learned counsel for the appellant has no force

8. Another argument raised by the learned counsel for the applicant is that no other instrument or material has been recovered which can show that kerosene oil was kept for sale. This argument has also no force. At the relevant time, the license order was in force, so keeping two hundred litres of kerosene oil without any valid license is itself sufficient to prove the guilt. Such a large quantity of kerosene oil cannot be presumed to be kept for personal use.

9. The remaining two witnesses P.W.-3 - S.I. Harday Nand Mishra and P.W.- 4 - S.I. Rajnath Pandey are formal witnesses who have proved the other prosecution papers, like FIR, copy of the G.D., site plan and charge sheet.

10. From the evidence on record, it stands proved that two hundred litres of kerosene oil kept in a drum has been recovered from the outer portion of the house inside an open room of the accused - Jagarnath and he was in possession of it, so the findings of conviction recorded by the learned trial court is just and proper. There is no infirmity or illegality in the finding of conviction recorded by the learned trial court.

11. Learned trial court has sentenced the accused for two years rigorous imprisonment and fine of Rs. 2,000 and in default of payment of fine further six months rigorous imprisonment. The incident is of the year 1982 near about 39 years have passed since. The age of the accused according to the statement recorded under Section 313 Cr.P.C. was 40 years in October, 1993, so at present his age is about 68 years. Considering the aforesaid facts and the quantity and nature of Essential Commodity i.e. kerosene oil, it will be too harsh to send him to prison and in the opinion of this Court imposition of fine will serve the purpose of justice. So sentence is liable to be modified accordingly.

12. Appeal is partly allowed. Conviction of the accused under Section 3/7 Essential Commodities Act is upheld but sentence is modified and accused is punished with a fine of Rs. 10,000/- which he will deposit within one month from today. He will produce computer generated copy of the judgment attested by the counsel before the trial court enabling him to deposit the fine. In default of payment of fine accused will undergo four months simple imprisonment.

13. Lower court record along copy of the judgment be transmitted to the trial court immediately.

Order Date :- 13.08.2021

Arif