M.G.Sewlikar, J
1. Applicant was convicted under Sections 406, 468, 471 read with Section 34 of the Indian Penal Code (IPC) and under Section 3 read with Section 7
of the Essential Commodities Act, by the learned Judicial Magistrate First Class (JMFC) by his Judgment and order dated 22nd October, 2012 passed
in R.C.C.No.190 of 2008. He was sentenced to sufer rigorous imprisonment for six months and fne of Rs.1,000/-, in default to sufer simple
imprisonment for 15 days for the ofence punishable under Section 406 of the IPC. He was sentenced to sufer rigorous imprisonment for one year and
fne of Rs.1,000/-, in default to sufer simple imprisonment for 15 days for the ofence punishable under Section 468 of the IPC. He was sentenced to
sufer rigorous imprisonment for six months and fne of Rs.1,000/-, in default to sufer simple imprisonment for 15 days for the ofence punishable under
Section 471 of the IPC. He was sentenced to sufer rigorous imprisonment for six months and fne of Rs.1,000/-, in default to sufer simple
imprisonment for 15 days for the ofence punishable under Section 3 read with Section 7 of the Essential Commodities Act.
2. The Appellate Court by its Judgment and order dated 10th April, 2017 passed in Criminal Appeal No.33 of 2012, confrmed the conviction under
Section 406 of the IPC but acquitted the applicant under Sections 468, 471 of the IPC and under Section 3 read with Section 7 of the Essential
Commodities Act. The Appellate Court reduced the sentence of imprisonment to the period already undergone. This order is assailed before this
Court.
3. Facts giving rise to this application are that the applicant was the Fair Price Shopkeeper At Mauje Kanjala, Tq.Akkalkuwa, Dist.Nandurbar. The
grains i.e. wheat and rice were provided to the applicant for distributing the same to the labourers working under the Employment Guarantee Scheme
(EGS) of the Government. As per the Resolution of the Government, 2 kg. of wheat and rice per day was to be distributed to each labourer.
4. Accordingly, applicant was entrusted with the grains i.e. 418 of quintals wheat and 418 quintals of rice for distribution to the labourers on the
coupons provided to them by the Government. On 12th February, 2002, when the stock was inspected at the house of the applicant, no stock was
found available. The applicant had only deposited the coupons in respect of 209.98 quintals each for distribution of wheat and rice to the labourers and
misappropriated grains i.e. 177.67 quintals each of what and rice. Accordingly, Food Supply Inspector lodged the report on the basis of which
investigation was taken up. Applicant was arrested and was sent for trial before the learned JMFC, who after recording evidence and considering the
arguments of the parties, recorded the conviction as aforesaid.
5. In the appeal, the applicant was acquitted for the ofence punishable under Sections 468, 471 read with Section 34 of the IPC and under Section 3
read with Section 7 of the Essential Commodities Act. But the applicant was convicted under Section 406 of the IPC and has been sentenced to the
period of imprisonment he has already undergone during the custody i.e.
13 days. This order is assailed in this revision.
6. Heard Shri G.D.Jain, learned counsel for the applicant and Shr V.S.Badakh, learned APP for the respondent-State.
7. Shri Jain, learned counsel for the applicant submits that the wheat and rice are to be provided only on production of coupons. If the labourers do not
produce coupons, naturally applicant cannot distribute wheat and rice to them. He further submits that the Food Supply Inspector inspected only house
of the applicant . He did not inspect the shop of the applicant. If he had inspected the shop of the applicant, he would have found the entire stock and
there would not have been any variance. He submits that, therefore, there was no misappropriation on the part of the applicant.
8. Shri Badakh, learned APP for the respondent-State submits that when the Food Supply Inspector had visited the house of the applicant, the
applicant was not present. Despite trying his level best, the Food Supply Inspector could not trace the applicant. Therefore, the Food Supply Inspector
had no other remedy than to lodge the report against the applicant. He, therefore, prayed for dismissal of the application.
9. It is no doubt true that the applicant is residing in tribal area. It has come on record that goods have to be carried on the back of donkeys. The
applicant can distribute grains only when the labourers produce the coupons. When the labourers failed to produce coupons, applicant cannot distribute
grains to them. Moreover, when the applicant was not present at the house, the Food Supply Inspector carried out inspection of house only. He did not
carry out inspection of shop of the applicant. Therefore, it cannot be said that the applicant was guilty of misappropriation. Applicant is facing trial
since the year 2008. Having regard to this, it cannot be said that ofence under Section 406 of the IPC is made out against the applicant. In this view of
the matter, order of the learned Appellate Court to the extent of conviction of the applicant under Section 406 of the IPC, needs to be set aside.
Hence, the order :
ORDER
(i) Criminal Revision Application is allowed.
(ii) The Judgment and order passed by the learned Additional Sessions Judge, Shahada, District Nandurbar on 10th April, 2017, to the extent of
conviction of the applicant under Section 406 of the IPC, is set aside.
(iii) Accused is acquitted of the ofence punishable under Section 406 of the IPC.
