Bhagwan Dass vs State Of Pb
2022 Latest Caselaw 15719 P&H

CRA-S-1665-SB-2006                                                     - 1-


302          IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                        CRA-S-1665-SB-2006
                                        Reserved on: 15.11.2022
                                        Date of pronouncement: 05.12.2022


Bhagwan Dass                                                      ...Appellant
                                        vs.
State of Punjab                                                  ...Respondent
Coram :      Hon'ble Mr. Justice N.S.Shekhawat

Present :    Mr. D.S.Pheruman, Advocate
             for the appellant.

             Mr. Vipin Pal Yadav, Additional Advocate General, Punjab

                   ***

N.S.Shekhawat J.

The present appeal is directed against the impugned judgment and

order dated 14.08.2006, passed by the Court of learned Special Judge, Amritsar,

whereby the appellant was convicted under Section 7 of the Essential

Commodities Act, 1995 (hereinafter to be referred as the Act) and Section 420

of IPC and was sentenced to undergo rigorous imprisonment for four years

under Section 7 of the Essential Commodities Act, 1955 and to pay a fine of

Rs.5,000/-, in default of payment of fine, to further undergo rigorous

imprisonment for six months, and to undergo rigorous imprisonment for three

years under Section 420 IPC and to pay a fine of Rs.3,000/-, in default of

payment of fine, to further undergo rigorous imprisonment for three months,

with default stipulation.

Initially, FIR No.43 dated 11.03.1995, under Section 7 of the

Essential Commodities Act, 1955, Police Station 'A' Division, Amritsar, was

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registered against six persons. Out of the total six accused, Sri Ram S/o Hafu

was declared to be a proclaimed offender, whereas, Sita Ram S/o Mela Ram had

died and the proceedings qua him had abated. After presentation of challan, the

trial was held by the Court of learned Special Judge, Amritsar vide Sessions

Case No.9 of 1996. Even two separate challans i.e. one against Amarjit Singh

and Joginder Singh and another against Bhagwan Dass were also presented and

they had faced trials in separate Sessions cases i.e. Sessions Case No.8 of 1996

and Sessions Case No.12 of 1996 and were separately convicted and sentenced.

The case in the present trial was held as Sessions case No.12 of 1998/2005

titled as "State Vs. Bhagwan Dass".

As per the story of the prosecution, on 11.03.1995, Inspector

Jaswinder Singh, Incharge, Detective Staff, Amritsar alongwith Inspector Jasjit

Singh, Incharge, Anti-Smuggling Staff, Amrtisar and other police officials were

present at Taranwala Bridge, Amritsar and in the meantime, the complainant

Dharambir S/o late Baldev Raj, resident of House No.170, Satguru Ram Singh

Avenue, Amritsar appeared before them and made a statement to them. As per

the complainant Dharambir, he was running a grocery shop with his brother.

On 08.03.1995, he went to G.S. Traders, owned by Sita Ram S/o Mela Ram,

resident of House No.211, Muslim Ganj near Shivala Colony, Amritsar and his

another shop is situated at Hussainpura Chowk, Amritsar and Sita Ram and his

son Hari Mohan were present there. He purchased 10 bags of cement of ACC

Company and they issued him a bill at the rate of Rs.125/- per bag of cement.

He had shown the bag of cement to mason for the construction of house and

was informed that the colour of the cement did not match with of that ACC

brand. He asked the mason to check the cement by using the same with the

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bricks. On this, the mason told him that the cement was adulterated and lacked

grip between the bricks. The complainant investigated the matter at his own

level and came to know that both these persons had taken a rent a godown from

Tarlok Singh, which is situated at some distance beyond Daburji on the left side

at Amrtisar-Jalandhar road. He came to know that they would bring Bhal

powder from outside and mixed at the same in the bags of original ACC cement

and sold this adulterated cement, representing it to be genuine ACC cement to

the innocent people and general public. He had also been cheated by Sita Ram

and Hari Mohan. Similarly, Bhagwan Dass (appellant) and his family members

and some other persons had taken on rent a godown from Bhan Singh, resident

of Bahi Lalo Jee Nagar, Amritsar. They were also mixing Bhal power in ACC

cement and selling at their shop at Mahan Singh gate, Amrtisar to the innocent

people by representing it to be genuine ACC cement and in this manner, they

had cheated him. If the raid is conducted at their shops and godowns, a large

quantity of adulterated cement bags containing ACC mark, bags of Bhal powder

and genuine bags of ACC cement and other items could be recovered. At the

instance of the complainant, Inspector Jaswinder Singh along with other

members of the raiding party and also by taking Dharmbir Singh alongwith

them, raided the godown of Bhagwan Dass (appellant) at Bahi Lalo Jee Nagar,

Amritsar. When the police party reached there, Bhagwan Dass succeeded in

escaping from the arrest alongwith his companions by using a ladder. Search of

godown, which was taken on lease by Bhagwan Dass (appellant), was

conducted after following the due procedure of law and 100 bags of ACC

cement, 270 bags of adulterated cement, 30 bags of Bhal powder, 300 empty

bags, a platform balance were recovered from his godown. Nine samples of 35

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kgs of each were drawn from the different bags of cement, adulterated cement

and the Bhal powder. The parcels of samples were prepared and were sealed by

Amarjit Singh, D.F.S.O. with his seal. After drawing such samples, the

remaining cement bags were left in the godown itself and all other items were

taken into possession vide separate memos prepared by the raiding team. The

godown was also sealed by the seal of D.F.S.O and one more seal of description

GS was put on the same. The samples of cement and a platform balance were

loaded in a private truck and the initial formalities of investigation were done.

The rough site plan was also prepared. During the course of investigation,

Bhagwan Dass (appellant) was arrested on 11.05.1995.

The samples, which were loaded on private truck were deposited

with the MHC of the Police Station after returning to the Police Station and the

sample parcels were sent to office of Chief Engineer-cum-Director of Concreate

Technology Division, Irrigation and Power Research Institute, Amritsar. The

results of analysis of the samples were received on 25.10.1995 and as per the

analysis of samples, the recovered cement was found to be adulterated.

Thereafter, the statements of various witnesses were recorded and after

completion of the investigation, the challan was presented before the learned

trial Court by the police. Vide order dated 29.04.1998, learned trial Court

ordered framing charges against the appellant for the offences punishable under

Section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred as

the Act) and Section 420 of IPC, to which he pleaded not guilty and claimed

trial.

In support of the charge, the prosecution examined PW-1 ASI

Lakhbir Singh, who registered the FIR. Further, PW-2 SI Surender Kumar, was

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examined, who partly investigated the case and arrested the accused/appellant,

Bhagwan Dass. Still further, MHC Gurminder Singh was examined as PW-3

and Baldev HC was examined as PW-4 and their testimonies were formal in

nature. Inspector Jaswinder Singh, who was Incharge of the Detective staff at

the relevant time was examined as PW-5. He alongwith other police officials

had conducted the raid on getting the information and also had made recoveries

in the instant case. From the godown of the appellant, 100 bags of cement

having mark ACC, 270 bags having mark ACC, but the bags were found

containing fake cement after mixing the powder, 30 bags of container clay

powder, 300 empty bags containing mark ACC were found. The samples were

drawn from the recovered articles as per law and he explained the entire

recovery process. Still further, the prosecution examined PW-6, Jyoti Inder

Ogra, who was working as Sales Officer in ACC cement, who did not support

the case of the prosecution. The prosecution further examined PW-7 Amarjit

Singh, retired D.F.S.O., who was also part of the raiding team and supported the

case of prosecution in toto. The prosecution further examined PW-7, Inspector

Harbans (Harbir) Singh before whom the complainant produced the bill dated

08.03.1995 for the purchase of 10 bags of cement and the same was taken into

possession vide memo Ex.PU. The prosecution further examined, PW-8 Swaran

Singh, Clerk, whose testimony was formal in another. The prosecution further

examined Dalip Singh as PW-9, who was posted as Research Officer in

Irrigation Department. He prepared the report Ex.PU, which ran into three

pages. He exhibited the second report as Ex.PW and another report as Ex.PX.

As per the said reports, the supplied cement samples did not meet the

requirement of I.S.-269/1976 in respect of the tests done. Still further, the

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supplied cement samples were found to be adulterated and the powder sample

with Lab Registration No.3441/CBM was not found to be a cement sample.

Consequently, as per the lab reports, the samples did not confirm to the

standards and were found to be adulterated. The prosecution further examined

the complainant Dharmbir Singh, who supported the case of the prosecution.

After the prosecution evidence was closed, the entire incriminating

evidence collected by the police during the course of the investigation was put

to the accused in his statement under Section 313 Cr.P.C. and he pleaded that he

had been falsely implicated in the instant case and no recovery was effected

from him.

Learned counsel for the appellant vehemently contended that the

entire case hinges on the testimony of the official witnesses. Even no witness

was joined from the public or any other independent witness from any other

department was examined. Consequently, the case of the prosecution is liable

to be discarded on this ground alone. It was further alleged that the godown

was taken on rent by Bhagwan Dass (appellant) and the owner of the godown

was not examined by the prosecution. Still further, learned counsel, while

referring to various testimonies, referred to certain minor contradictions

appearing in the case of the prosecution. Still further, learned counsel for the

appellant submitted that the case property was not produced in the Court and a

serious prejudice has been caused to the present appellant.

Learned counsel for the State has vehemently opposed the

submissions made by learned counsel for the appellants. He further submitted

that the testimonies of various official witnesses could not be discarded on the

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ground that they were official witnesses and their testimonies may be taken into

consideration.

I have heard learned counsel for the parties and have gone through

the record of the case carefully.

Learned counsel for the appellants vehemently contended that the

entire prosecution case is based on the testimonies of the official witnesses and

despite availability, no independent witness was joined in the instant case. The

FIR in the case was registered on 11.03.1995, whereas the raid was conducted

by associating various other official witnesses, on 12.03.1995 and there was

ample time with the official witnesses to join private and independent witnesses

at the time of the raid. I find no substance in the said arguments as the official

witnesses are also competent witnesses, if there testimonies inspire confidence.

Only because of the fact that the prosecution did not examine any independent

witness, would not necessarily lead to a conclusion that the accused was falsely

implicated. The evidence of official witnesses cannot be distrusted and

disbelieved, merely on account of their official status. It has been held by the

Hon'ble Supreme Court of India in the matter of "State, Govt. of NCT of Delhi

Vs. Sunil & Anr.", (2001) 1 SCC 652 as follows:-

"It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the legislature".

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 CRA-S-1665-SB-2006                                                      - 8-

Consequently, there is no reason to discard the testimonies of

official witnesses in the present case. All the official witnesses have been cross-

examined at length, but nothing material could be extracted from there

testimonies.

Still further, the testimonies of the official witnesses, have been

duly corroborated by the statement of PW-10 Dharmbir, complainant, who had

produced 10 bags of cement from Sita Ram and Hari Mohan, whereas, 5 bags

were purchased from Bhagwan Dass. The defence has not suggested any

reason as to why Dharmbir Singh had falsely implicated the accused in this

case. Dharmbir Singh was an independent witness, who had produced 15 bags

from the accused for the purpose of construction and the mason found the same

to be adulterated and the said cement could not be used for the purpose of

construction. The testimony of PW-12 Dharmbir Singh was corroborated by

the statement of PW-9 Dalip Singh, retired Research Officer, Irrigation

Department. In fact, in the year 1995, he was posted as Research Officer,

Concrete Technology Division of Irrigation and Power Research Institute,

Amrtisar. He had analyzed 12 samples, which were taken from the accused and

he exhibited the reports as Ex.PX, Ex.PV and Ex.PW. The report submitted by

him clearly proved that the supplied cement samples did not meet the

requirements of I.S.209-1976 and the samples were found to be adulterated.

Thus, it is apparent that the accused had cheated the complainant and they have

been rightly convicted under Section 420 of IPC. Apart from that, there is

prohibition of manufacturing, sale etc. of the cement, which is not up to the

prescribed standard and this also constitutes an offence under Section 7 of the

Act.

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 CRA-S-1665-SB-2006                                                     - 9-

Learned counsel for the appellant vehemently argued that the

accused was running his business from the godown and the owner of the

godown was not joined at the time of the raid. In fact, there is no requirement

of law that the owner of the godown should also be joined during the raid.

There was enough evidence to prove the complicity of the present appellants in

the commission of the crime as they were caught at the spot mixing the Bhal

powder into the genuine ACC cement. Still further, learned counsel has

referred to the minor inconsistency with regard to the minor variation of the

price of the cement, which is of no significance. Still further, the huge quantity

of cement was recovered from the appellants and it was not humanly possible to

produce the entire case property before the Court at the time of the trial and no

such request was even made by the defence at the time of the trial.

In view of the above, it has been held that the impugned judgment

and order dated 14.08.2006, is based on correct appreciation of evidence and

the settled canons of law and the conviction of the appellant is liable to be

maintained by this Court.

A perusal of the record would reveal that the FIR in the instant

case was registered on 11.03.1995, and the accused was arrested in the instant

case on 14.08.2006 and since then, he is facing the agony of trial/appeal. The

appellant, Bhagwan Dass has undergone about 3 months and 15 days of actual

sentence. The appellant is facing the prosecution for the last more than 25 years

and has no criminal antecedents. Learned counsel for the appellant has

submitted that the appellant is the sole bread earner of his family and a lenient

view may be taken in the matter.

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 CRA-S-1665-SB-2006                                                      - 10-

Consequently, ends of justice would be suitably met, if the

sentence imposed on the present appellant is reduced to the period already

undergone by him. However, the amount of fine is increased to Rs.50,000/-,

which shall be deposited by the appellant with the concerned Chief Judicial

Magistrate within a period of three months from today, failing which, the

appellant shall undergo the sentence for a period of one year.

Pending application, if any, is also disposed off, accordingly.

Case property, if any, be dealt with, and destroyed after the expiry

of period of limitation. The trial court record be sent back.

                                                      (N.S.SHEKHAWAT)
05.12.2022                                                 JUDGE
hemlata
                   Whether speaking/reasoned :       Yes/No
                   Whether reportable        :       Yes/No




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