Appasaheb Khandu Lokhande vs The State Of Maharashtra
2021 Latest Caselaw 8036 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL NO.674 OF 1998


Appasaheb Khandu Lokhande,                ]
R/o. Varkute Malawadi, Tal. Man, District ]
Satara.                                   ]                        ... Appellant

                          Versus

The State of Maharashtra                                 ]        ... Respondent


                            ...
Ms. Vilasini Balasubramanian with Mr. S.P. Kadam for the
Appellant.

Mr. S.R. Agarkar, A.P.P. for the State.
                                  ...

                                     CORAM   : MRS. BHARATI DANGRE, J.

DATED : 18TH JUNE, 2021.

ORDER.:-

1. In the Summary Case under Chapter XXI of the Code of Criminal Procedure, ("Cr.P.C.") being numbered as Special Case No.14 of 1992, the appellant was charged as under:

"That, you at Warkute, Malwadi, Tal. Man, on 12/08/1992 in your Kirana Shop, found in possession of 750 liters of kerosene without

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licence and selling the same at higher rate. You committed an offence punishable under Section 7 of the Essential Commodities Act."

The accused pleaded not guilty and was, therefore, subjected to trial.

2. The accused/appellant was running a grocery shop at Varkute, Tal. Man and, on 12/08/1992, the Supply Inspector, who formed part of the mobile squad noted four barrels containing 750 liters of kerosene in the kirana shop of the accused and, on noting that the appellant does not possess a retail licence, he lodged a complaint under the Essential Commodities Act, 1955 with Police Station Maswadi. Panchnama was drawn for effecting seizure of the four barrels and the kerosene contained therein and in the backdrop of the said complaint, the accused was charged as mentioned above.

3. To bring home the guilt of the accused, the prosecution examined four witnesses; the complainant being examined as PW-1, two panch witnesses being examined as PW-2 and PW-3 respectively and the Supply Inspector at Satara, who carried out the search and seizure being examined as PW-4.

The statement of the accused was recorded under Section 313 of the Cr.P.C. where he clamped the prosecution case as false and

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deposed that PW-2 had deposed against him at the say of the police since the appellant's relationship with PW-2 was not cordial.

4. I have heard Ms. Vilasini Balasubramanian, learned counsel appearing for the Appellant and Mr. Agarkar, learned A.P.P. appearing for the State. Learned counsel for the Appellant would submit that the conviction imposed on the Appellant calls for interference since the Court has tendered perverse finding based on no evidence and failed to take into consideration the fact that the prosecution has not established the charge against the Appellant beyond reasonable doubt and relying upon the inconsistency in the testimony of the witnesses, learned counsel would submit that the Appellant deserves an acquittal. Mr. Agarkar, learned A.P.P., on the other hand, supports the impugned judgment, which according to him is based on appreciation of facts placed before it.

5. The testimony of the witnesses have been carefully perused and was found to be lacking consistency and corroboration. PW-1, who received information from the Flying Squad of the Department has deposed that the four barrels containing kerosene were found in the grocery shop of the appellant. On taking the barrels in possession, the panchnama was prepared by this witness. In the cross-examination, this witness admits that except his oral evidence, he has no evidence to show that the kerosene attached belonged to the accused. The two panch witnesses also gave

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consistent versions, PW-2, who was called near the shop of the accused on 12/08/1992 deposed that the four barrels were kept adjoining behind the shop of the accused. He deposed that they were kept for selling of kerosene. The kerosene attached was given in custody of the police party was his version. In the cross- examination, he has admitted that he is not aware as to who was the owner of the place where the barrels were kept, but the accused himself told that the kerosene belongs to him. Except his statement, he admits that there is no other evidence to that effect. As far as PW-3, the second panch witness is concerned, he has deposed that the barrels of kerosene were kept behind the shop of the accused and they were found adjoining his shop. He categorically admits that the place where the barrels were kept does not belong to the Appellant nor does the shop belong to him.

6. PW-4, the Supply Inspector, who had gone for inspection of stocks and noted the barrels in one private shop, deposed that he learnt that the shop belonged to the accused and the kerosene was from his shop. In the cross-examination, this witness states that the barrels were placed in front of the shop and categorically states that except his statement, he has no documentary evidence showing that the kerosene belongs to the appellant.

7. With this evidence brought on record along with the panchanama exhibited at Ex-11, the accused came to be convicted

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by the Special Judge, in ignorance of the inconsistencies in the versions of the prosecution witnesses. Though the learned Judge records that the allegation of selling kerosene at higher price is not proved, the accused in the absence of licence to possess kerosene under the Maharashtra Kerosene Dealers Licensing Order, 1966 could not have stored the kerosene in his shop, is the finding rendered. The said reasoning recorded by the Special Judge is not based on any evidence lent by the prosecution as there are inconsistencies in the testimony of the prosecution witnesses on the material aspect as to where the four barrels alleged to have containing 750 liters of kerosene were found. PW-1 says that it was found in the shop whereas the panch witnesses PW-2 and PW-3 deposed that it was found at a place situated backside of the shop whereas PW-4 in cross admits that the barrels were kept in front of the shop. The accused was charged for being in possession of 750 liters of kerosene without licence. The term "possession" necessarily would depict and convey his control over the barrels of kerosene and nothing has been brought on record by the prosecution to demonstrate that the barrels of kerosene were in his custody but the defence is they were found in the open place and the appellant has no connection with the said kerosene barrels. The burden was upon the prosecution to prove that the charge that barrels of kerosene were in his premises/shop and he was in possession of the same, which the prosecution has miserably failed to prove. The evidence laid by the prosecution and brought on

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record lacks on the material aspect about the placement of the four barrels of the kerosene and that the accused was in possession of the same.

8. In the aforesaid circumstances, the conviction of the appellant by the Special Judge for the offence under Section 3(d) punishable under Section 7(1) of the Essential Commodities Act cannot be sustained. Resultantly, the sentence imposed on the appellant to suffer rigorous imprisonment for one year and to pay find of Rs.5,000/- also cannot be sustained.

The appeal deserves to be allowed and is accordingly allowed by setting aside the judgment dated 10/07/1998 delivered by the Special Judge, Satara in Special Case no.14 of 1992.

(BHARATI DANGRE, J.)

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