Baldev Singh, J.@mdashRakesh son of Harish Chand and Rajinder son of Bahadur Singh, both Depot Holders, residents of Rohtak have filed this appeal against the impugned judgment of conviction dated 23.4.1991 and sentence order dated 27.4.1991 passed by Shri R.P. Bajaj, the then Judge Special Court Rohtak, vide which they were convicted for the offence punishable u/s 7 of the Essential Commodities Act, 1955 and were sentenced to undergo R.I. for 3 months and to pay fine of Rs.500/- each and in default of payment of fine to undergo further R.I. for month.
2. Case FIR No.574 dated 31.8.1989 u/s 7 Of the Essential Commodities Act, 1955 was registered in Police Station City Rohtak on the written complaint fried by Chaman Lal, the then AFSO Rohtak. It was alleged by him that on 31.8.1989 he along with Sh. D.D. Gupta, DFSO raided kerosene oil business premises of Rajinder-appellant at Sukhpura Chowk, Rohtak. At the time of checking, Rakesh-appellant who was representative of Rajinder depot holder, was present at the shop. On checking the following serious irregularities were detected:
(1) The stock and rate of kerosene oil was not written on the notice Board. The columns of stock and rate were lying blank.
(2) That on demand Rakesh did not produce record of kerosene oil i.e. stock and sale registers of kerosene for checking purposes.
(3) That there was a stock of 160 litres of kerosene oil in the shop.
(4) That Rakesh-appellant did not cooperative in checking the business premises.
Moreover, he also misbehaved.
3. It was further alleged that in this way Rakesh controverted the provisions of the Haryana Kerosene Dealers Licensing and Price Control Order, 1976 and Haryana Price Marking and Display Order, 1975. Contravention of the aforesaid orders constituted an offence punishable u/s 7 of the Essential Commodities Act,1955.
4. After registering the case on the basis of the complaint of Chaman Lal AFSO Ex.PA and scribing of the formal FIR PA/1, PW6 Duni Chand SI then commenced with the investigation of the case. He visited the kerosene oil shop of the appellants on 31.8.1989 and found it closed. Then he went there on 1.9.1989. Rakesh-appellant was found present, Daily stock register Ex.P2 and two Sale Registers Ex.P3 and P4 were taken into possession vide recovery memo Ex.PD. A drum containing 160 litres of kerosene oil was taken into possession vide recovery memo Ex.PE. Site-plan was prepared showing the premises. Rakesh was arrested on 1.9.1989. Rajinder-appellant, in whose name the licence was, was arrested on 11.9.1990 by Gian Chand SI. On completion of the investigation challan was put in against the appellants.
5. The Ld. Special Judge Rohtak on 27.10.1990 framed charge against both the appellants for the offence punishable u/s 7 of the Essential Commodities Act, 1955 for the contravention of the Haryana Kerosene Dealers Licensing and Pricing Marketing and Display Order, 1975. They did not plead guilty to the charge and claimed trial.
6. The prosecution at the trial examined PW Rajpal clerk of the office of District Food and Supplies Rohtak. He proved that Licence No.452K was issued in the name of Rajinder-appellant on 13.8.1987. Ex.Pl is the licence. It was valid upto 31.3.1990. Chaman Lal AFSO was examined as PW2. He proved his written complaint Ex.PA. Hukam Singh SI was examined as PW3. He had recovered licence Ex.Pl and he proved recovery memo Ex.PB. PW4 Uma Kant was examined. He is employee of M/s. Shadi Ram Udmi Ram, Mai Gbdown Road, Rohtak. He proved that on 29.8.1989 he had supplied 3500 litres kerosene oil from his firm to appellant Rajinder. Ex. PC is the copy of the record proving this fact. PW5 D.D. Gupta DFSO Rohtak was tendered for cross-examination, but no cross-examination was made. Then PW6 Duni Chand SI was examined. He had gone the investigation in the case, as mentioned above.
7. Both the appellants were examined on the conclusion of the prosecution evidence and their statements were recorded u/s 313 Cr.P.C. They stated that the case is false against them. The DFSO wanted to obtain illegal gratification from them on monthly basis. They refused. Hence, the case was made out.
8. Arguments of Sh. Narender Hooda, Ld. Counsel for the appellants and of Sh. H.S. BisIa, Assistant Advocate General, Haryana were heard and the evidence was perused with their help.
9. It is argued by the Ld. counsel for the appellants that the prosecution case rests solely on the statement of PW2 Chaman Lal AFSO. He is the complainant, on whose complaint Ex.PA, this case was registered. Sh. D.D. Gupta DFSO Rohtak who had accompanied him for raid in the business premises of the appellant was not examined. He was simply tendered for cross-examination by the appellants, but the appellants did not conduct any cross-examination. It is argued by the Ld. counsel for the appellant that simply tendering a witness for cross-examination does not amount to "examine" him. So, the statement of Chaman Lal AFSO is not corroborated by the any other evidence. POW2 Chaman Lal AFSO admitted in his cross-examination that he did not enquire from the persons, whom allegedly the appellants distributed the kerosene oil. He further admitted that 160 litres kerosene oil was found in the business premises contained in 2 drums. The kerosene oil was measured. He could not, however, tell the names of the persons with whose help the kerosene oil was measured. He did not obtain their signatures or thumb impressions. He also admitted that there were several shops around the depot of the appellants, but he did not feel necessity of calling any person at the time of search of raid. His cross-examination reveals that independent witnesses were available, but no effort was made at all to join them. Independent corroborative evidence would have certainly lent credence to the testimony of this official witness, but in the absence of any independent corroborative evidence, his solitary statement does not inspire any confidence to convict the appellants. The Ld. Trial Judge went out of the way to attach undue weight to bald statement of P W2 Chaman Lal AFSO. He also took into consideration this fact that PW5 D.D. Gupta was tendered for cross-examination, but he was not cross-examined by the appellants and, therefore, the defence version was not substantiated. He was oblivious of this proposition of law that the practice of tendering witness for cross-examination is inconsistent with Section 138 of the Indian Evidence Act, 1872. This section lays down that witnesses shall be first examined in chief and then if the adverse party so desires, cross-examined and if the adverse party calling him so desires, re-examined. The evidence of D.D. Gupta DFSO was of vital importance. The procedure of tendering him for cross-examination certainly should not have been employed in his case, he being an important eye-witness. The cases of Sadeppa Cireppa Mutgi v. Emperior, AIR 1942 Nag.37 and
10. The trial court wrongly conjectured that since the Stock Register was made available to Duni Chand SI on 1.9.1989,160 litres kerosene oil was entered in it. There was no shortage of kerosene oil. It is not the case of the prosecution that the kerosene oil was found short as compared to the Stock Register. The evidence of those persons who had taken kerosene oil against their cards was not collected. No card holder ever made complaint that the kerosene oil was not supplied to him and the Stock Register was irregularly maintained. The defence plea is that the officials of the Food and Supplies Department wanted to extract illegal gratification from the appellants on monthly basis and they refused to pay it. In cross-examination PW2 Chaman Lal AFSO admitted that Rakesh-appellant man-handled both, him (Chaman Lal AFSO) and D.D. Gupta AFSO and they had disclosed this fact to the police. So, there was something fishy at the time of checking the kerosene oil business premises of the appellants. It was not a fair checking.
11. In view of the above infirmities in this case, the conviction and the sentence order passed against the appellants cannot be sustained in the eyes of law. This appeal is allowed. The impugned judgment of conviction and sentence order are set aside and the appellants are acquitted of the charge framed against them u/s 7 of the Essential Commodities Act.
