Pramod Jain vs State Of Chhattisgarh
2021 Latest Caselaw 3705 Chatt

                                  1

                                                           NAFR


         HIGH COURT OF CHHATTISGARH, BILASPUR

                       CRA No. 250 of 2005

                  Order Reserved on : 13.08.2021
                 Order Delivered on : 15.12.2021


     1. Pramod Jain S/o late Padam Prasad Jain, aged about 57
        year, R/o Neharu Nagar, Bhilai, P.S. Supela, District Durg
        (C.G.)
     2. B.K. Lacer, S/o Late John Lacer, aged about 59 years,
        R/o Hospital Sector Bhilai, District Durg (C.G.)
         (Deleted as per order dated 19.07.2021)
                                                   ----Appellants
                              Versus
        State of Chhattisgarh Through Food and Civil Supplies
         Inspector, District Durg (C.G.).

                                                ---- Respondent

For Appellants : Dr. N.K. Shukla, Sr. Advocate with Mr. Vivek Sharma, Advocate.

For Respondent : Mr. Ashutosh Mishra, P.L.

Hon'ble Smt. Justice Rajani Dubey

CAV order

1. Appellant No.2 - B.K. Lacer left for heavenly abode

during the pendency of the appeal and appeal on behalf

of appellant No.2 stands abated vide order dated

19.07.2021. Now, the appeal is only in respect of

appellant No.1-Pramod Jain.

2. Challenge in this appeal is to the judgment of conviction

and order of sentence dated 14.03.2005 passed by

Sessions Judge/Special Judge (E.C. Act), District Durg

(C.G.), in Special Criminal Case No.74/1992, whereby the

appellants have been convicted under Section 7 of

Essential Commodity Act, 1955 (for short 'the E.C. Act')

and sentenced them to undergo S.I. for 4 months with

fine of Rs.500/-, plus default stipulation.

3. The prosecution story, in brief, is that appellant Nos.1

and 2 (deceased) are Partners and Manager of company

styled as M/s Bhilai Motor Car Company situated at

Section 10 in Bhilai, respectively, and have obtained

dealership of Motor Spirit, High Speed Diesel Oil,

Lubricating Oil and Grease from Hindustan Petroleum

Corporation Ltd. The appellants have also obtained

license for the said business from District Magistrate in

Motor Spirit and High Speed Diesel Oil. On 23.07.1992,

under the direction of Sub Divisional Officer, an

inspection of the firm of the appellants was done by B.P.

Sharma (PW/4), Food Inspector, who noticed following

irregularities :-

(i) 991 liters of motor spirit was found to be less.

251 liters of high speed diesel oil was more.

There was difference in temperature and

density of quantity of petrol/diesel purchased

on 22.07.1992 in compared to petrol/diesel

stored in tank on 23.07.1992. In fact, the

temperature of petrol purchased on 22.07.1992

was 25 centigrade and density was 724 =

7322, but the temperature of petrol kept in

tank No.1 on 23.07.1992 was 30.5 and density

720=7327. Likewise, the temperature of petrol

of tank No.2 was 32.5 and density 720=7343.

Temperature of diesel purchased on 22.07.1992

was 38, density 832 and temperature of diesel

kept in stock was found to be 22.5 on

23.07.1992 and density 836 and the

temperature and density was found to be 32.5

and 834, respectively, during the inspection.

Thus, the difference in temperature and density

was found different from the prescribed

quantity.

(ii) 125 liters of high speed diesel oil was kept in

drum for selling. There was adulteration in

mobil oil and diesel kept in five drums, sample

of which prepared and sealed in three different

bottles for its examination and one bottled was

given to appellant No.1.

(iii) 1895 liters of mobil oil, 360 liters of grease, 820

liters of hydraulic oil were seized in absence of

valid license. The last meter reading and deep

reading and entries of difference were not

marked in the stock and sales register. Name,

address, type and quantity of oil were not

mentioned in respect of diesel and receipts

were not issued. Monthly statement were not

sent. No receipts of sale of lubricating oil and

greases were submitted after July 1991 and

December, 1991. This proved that the business

of buying adulterated lubricating oil and grease

was going on and the old purchased stock was

being shown as in stock. Correct account

details of petrol, diesel, lubricating oil and

greases were not maintained.

4. After inspection by the Food Inspector and consequent

irregularities committed by the appellants, inquest was

prepared vide Ex.P/1. Articles like petrol, diesel, mobil

oil, hydraulic oil, stock register, daily sale register were

seized vide Ex.P/2. Supurdnama was prepared vide

Ex.P/3. Physical verification chart of articles was

prepared vide Ex.P/4 and charge sheet was filed against

the appellants.

5. So as to hold the appellants guilty, the prosecution

examined as many as 04 witnesses. Statements of the

appellants were also recorded under Section 313 of

Cr.P.C. in which they denied the circumstances

appearing against them in the prosecution case, pleaded

innocence and false implication. The appellants were

also examined five defence witness to substantiate its

case.

6. Learned Sr. counsel for the appellants submits that the

conviction of the appellants under Section 7 of E.C. Act

is not sustainable as the learned trial Court

misconceived the law involved in the case and mis-

appreciated the evidence on record. Learned counsel

further submits that the evidence of Nisar Ahmad

(PW/1), who conducted the inspection, is full of

contradiction and does not inspire confidence and the

Court below has wrongly appreciated his evidence. He

also submits that the appellants were continuously

paying license fee for lubricating oil and grease since

1988 to 19995, fact of which has been completely

ignored by the Court below. Learned counsel, referring

to Section 10 of E.C. Act, submits that if offenses against

the Companies are filed, in that case every person who,

at the time the contravention was committed, was in

charge of, and was responsible to, the company for the

conduct of the business of the company as well as the

company, shall be deemed to be guilty of the

contravention and shall be liable to be proceeded

against and punished accordingly, but in this case, the

charge sheet has been filed only against one Director of

the Company i.e. appellant No.1, which is not in

accordance with Section 10 of E.C. Act. Learned counsel

also argued that Section 12A (1) of E.C. Act provides for

trial of the cases by the Special Court in summary trial

but other cases are triable by Special Judge like Sessions

Trial and at the time of offence i.e. on 23.07.1992 the

Act was not in force. Essential Commodities (Special

Provisions) Act 1981 continue to remain in force and

operation by several ordinances and no ordinance was

passed after the year 1988. Therefore, the judgment of

conviction and order of sentence of the appellants being

not in accordance with law is liable to be set aside. In

support of submission, learned counsel placed reliance

on the decision of High Court of Madhya Pradesh in the

matter of Dinesh Kumar Dubey and Another V.

State of M.P.1, decision of High Court of Patna in the

matter of Kesho Sao V. State Opposite Party 2,

decision of High Court of Rajasthan in the matter of

State of Rajasthan V. Rajesh Agrawal and Others 3,

decisions of Hon'ble Supreme Court in the matter of

Nitinbhai Saevatilal Shah and Anr. V. Manubhai

Manjibhai Panchal and Anr.4, State of T.N. V.

Parmasiva Pandian5, Sham Sundar and Others V.

State of Haryana6.

7. On the other hand, learned State counsel supporting the

impugned judgment of conviction and order of sentence

1 2001 CRI.L.J. 1306 2 AIR 1969 Patna 105 3 1996 CRI.L.J. 1057 4 AIR 2011 SC 3076 5 2001 AIR SCW 4450 6 AIR 1989 SC 1982

submits that the trial Court has not committed any error

of law in convicting the appellants.

8. I have heard learned counsel for the parties and perused

the material available on record.

9. Learned Sr. Advocate for the appellants has drawn the

attention of this Court towards the irregularities being

committed by the prosecution but it is settled principle

of law that irregularities do not vitiate the trial unless it

is proved to be illegal. Before the learned trial Court the

prosecution examined four witnesses. In para 1 of the

impugned judgment, as many as five charges have been

framed against the appellants, which are as under:-

¼1½ fcuk oS/k yk;lsal yqczhdsfVax vkW;y vkSj xzhlsl dk O;olk; fd;k tk jgk FkkA ;g dk;Z yqczhdsfVax vkW;Yl ,oa xzhlsl ^^izkslsflax] lIykbZ ,.M fMLVªhC;w'ku jsxqys'ku^^ vkMZj 1987 dh dafMdk 3 ,oa 4 dk mYya?ku gksus ds dkj.k vko';d oLrq vf/kfu;e 1955 dh /kkjk 7 ds varxZr n.Muh; vijk/k gSA ¼2½ Mhty ,oa isVªksy dh fcdzh gsrq vuqKkIrh/kkjh gksus ds ckotwn Hkh LVkWd jftLVj vkSj fcdzh jftLVj esa okLrfod banzkt ugha djrs gq, ,oa xzkgdksa dk uke] irk vkSj rsy dh ek=k dk lgh mYys[k ugha fd;k ,oa jlhn tkjh ugha djrs gq, vuqKfIr dh 'krZ dzekad 3] 8] 9] 10 ,oa 11 dk mYya?ku fd;kA ¼3½ yqczhdsfVax vkW;y ,oa xzhl dh voS/kfud [kjhnh fd;k ,oa LVkWd dk lgh fooj.k ugha j[krs gq, yqczhdsfVax vkW;y ,oa xzhlsl ^^izkslsflax] lIykbZ ,.M fMLVªhC;w'ku jsxqys'ku^^ vkMZj 1987 dh dafMdk&4 dk mYya?ku fd;k vkSj e-iz- eksVj fLizV rFkk gkb fLizV Mhty vkW;y vuqKkiu rFkk fu;a=.k vkns'k 1980 eksVj fLizV rFkk gkb fLizV Mhty vkW;y ^^iwfrZ rFkk forj.k esa dnkpkj dh jksdFkke^^ vkns'k 1990 dh dafMdk 2&ts&2&,p rFkk 5 ,oa 6 ,oa yqczhdsfVax vkW;y ,oa xzhlsl ^^izkslsflax] lIykbZ ,.M fMLVªhC;w'ku jsxqys'ku^^ vkMZj&2 ds mYya?ku esa /kkjk 7 vko';d oLrq vf/kfu;e dk vijk/k fd;kA ¼4½ LVkWd jftLVj ds vuqlkj 991 yhVj isVªksy de rFkk 251 yhVj

gkbZ LihM Mhty vf/kd ik;k x;kA bl izdkj eksVj fLizV rFkk mPp osx Mhty ^^iznk; vkSj forj.k esa vukpkj fuokj.k^^ vkns'k 1990 ds [k.M 2&ts ds varxZr fu/kkZfjr LVkWd dk vUrj gksus ds dkj.k [k.M 2&bZ rFkk [k.M 5 ds varxZr vukpkj gSA ¼5½ isVªksy iEi ds Vsad esa laxzfgr isVªksy rFkk Mhty ds rkieku ,oa ?kuRo esa fu/kkZfjr ek=k ls varj ik;k x;k] tks eksVj fLizV vkSj mPp osx Mhty vkW;y ^^iznk; vkSj forj.k esa vukpkj fuokj.k^^ vkns'k 1990 ds [k.M 2&, dk mYya?ku gksus ds dkj.k [k.M 2&bZ vkSj 5 ds varxZr vukpkj dh dksfV esa vkrk gSA

10. The learned trial Court, after appreciating oral and

documentary evidence, recorded its finding in para 49 of

the impugned judgment that apart from above 5

charges, the prosecution has been able to prove only

two charges. Para 49 of the impugned judgment is as

under:-

"49. vr% izdj.k esa miyC/k lk{; vkSj ifjfLFkfr;ksa rFkk vijk/k ds Lo#i dks ns[krs gw, nksuksa vkjksihx.k dks /kkjk 3 vko';d oLrq vf/kfu;e ds varxZr cuk, x, fu;e ,oa vkns'k ^^yqczhdsfVax vkW;y ,oa xzhlsl izkslsflax lIykbZ ,.M fMLVªC;w'ku jsxqys'ku vkMZj 1987 dh dafMdk 3 dh vogsyuk esa] blh izdkj vuqKfIr dh 'krZ dzekad 3 ¼1½ dh vogsyuk esa rFkk eksVj fLizV vkSj mPp osx Mhty iznk; vkSj forj.k esa vukpkj fuokj.k vkns'k 1990 ds dafMdk 5 dh vogsyuk es dh vogsyuk esa /kkjk 7 vko';d oLrq vf/kfu;e ds varxZr nks"kh fl) izekf.kr ik;k tkrk gS] D;ksafd vkjksih dzekad &1 dfFkr isVªksy iai dk Hkkxhnkj gS vkSj dzekad 2 izca/kd gSA

11. The learned trail Court also recorded its finding that on

the date of incident i.e. on 23.07.1992, the appellants

were not having requisite license to sell lubricating oil or

mobil oil but M.K. Thakur (DW/2), retired Treasury

Officer, has admitted the fact of issuance of document

(Ex.D-2). He has stated that on 15.10.1988, Rs.25/- was

deposited by Bhilai Motor Car Sector-10 as license fee

through challan No.3 under the Head No. 0852.

12. Bhagwati Prasad Sharma (PW/2) has stated in para 9 of

his evidence that he does not remember that at the time

of investigation he was told that payment was made in

the Treasury to renew the license for the sale of

lubricating oil and grease. Chandrakant Shukla (DW/3)

has also stated in examination-in-chief that on

10.08.1992 license fees was paid and on 22.12.1993,

recommendation for issuing license along with the

receipt of challan was sent to the competent authority.

13. The learned trial Court recorded its finding that on

23.07.1992 the license of appellants was expired and

after one month i.e. on 10.08.1992, he applied for

renewal of the same. This finding of the learned trial

Court, is based on proper appreciation of oral and

documentary evidence. The learned trial Court also

recorded its finding that appellants have breached the

condition as also stored oil and grease in much quantity.

With regard to this finding of the learned trial Court, this

Court has gone through the evidence of Nisar Ahmed

(PW/1), Additional District Magistrate, who has stated in

para 7 of his evidence that it is true that under the

Government rules, if there is a difference of 4% in the

stock of petrol, then it is considered to be justified. The

reduction of 4% is considered to be justified in terms of

storage capacity. He has also stated that there was a

circular of Madhya Pradesh Government in which 0.7%

discount was given in petrol and 0.25% for diesel on the

basis of vaporization. This witness has himself said that

after that more circulars have been issued by the State

Government but he has no information.

14. It is worth mentioning here that the prosecution did not

file any notification or circular of the State Government

as to what was the upper permissible limit of percentage

of petrol or diesel to be discounted owing to

vaporization.

15. In criminal case, the prosecution has to prove the guilt of

the accused/appellant beyond all reasonable doubt but

in the instant case, the prosecution has utterly failed to

prove this fact that at the time of offence, what was the

exact maximum limit of mobile oil, lubricating oil and

grease and how the seizure so made was more than the

prescribed quantity. Bare perusal of the record goes to

show that only one breach of condition of E.C. Act is

found beyond all reasonable doubt. Thus, in the facts

and circumstances and the nature of evidence adduced,

the appellants can safely be held guilty under Section 7

of E.C. Act.

16. Next question which arises for consideration of this Court

is as to what would be the appropriate sentence to be

imposed upon the appellant No.1 for committing the

offence under Section 7 of E.C. Act ?

17. In the case in hand, charge sheet against the appellant

No.1 was filed on 26.08.1992 and the impugned

judgment has been passed on 14.03.2005 i.e. after more

than 28 years. Appellant No.1 Pramod Jain, at the time of

offence, was aged about 57 year and by now he is aged

about 85 year old (senior citizen). In the peculiar facts

and circumstances of the case, no useful purpose would

be served in sending him back to jail.

18. Accordingly, the conviction of the appellant under 7 of

E.C. Act is maintained. However, the substantive

sentence of imprisonment is set aside. Imposition of fine

is affirmed. Besides, the appellant No.1 shall pay fine of

Rs.2000/- in addition to fine so imposed upon him by the

trial Court within three months from today, in default of

payment of fine amount, he shall have to undergo S.I.

for 14 days.

19. The appeal is partly allowed and the order of the learned

trial Court is modified to the extent indicated above.

Sd/-

(Rajani Dubey) JUDGE pkd