Kanwaljit Singh Ahluwalia, J.@mdashBy this Common judgment, two criminal appeals bearing Nos. 1021-SB of 1997 and 1039-SB of 1997,
preferred by Prem Kumar and Tarsem Singh, appellants, shall be decided.
2. Both the appellants have been convicted by the Court of Learned Presiding Officer, Special Court, Kaithal, u/s 7 of the Essential Commodities
Act (for short ""the Act"") and sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/- each. In default of payment of
fine, to further undergo rigorous imprisonment for three months, in a case arising out of FIR No. 422 dated 10.12.1993 registered at Police Station
City, Kaithal u/s 7 of the Act.
3. FIR Ex.PA/1 was recorded on the basis of ruqa Ex.PA sent by Attar Singh, Sub Inspector, who has stated in ruqa Ex.PA that he along with his
companion police officials was present in front of Civil Hospital gate, Kaithal and from reliable sources he learnt that Prem Kumar, appellant, used
to sell a bag of Kissan Khad to the farmers at the rate of Rs. 150/- per bag after he purchased the same from Punjab at the rate of Rs. 100/- per
bag and he has brought about 200 bags from village Sangatpura to Kaithal in a truck bearing No. PAT-8945 and since he has been selling the
fertilizer without any license, therefore, he has committed the offence u/s 7 of the Act.
4. On 3.6.1994, learned Presiding Officer, Special Court, Kaithal, framed a charge against both the appellants that on 10.12.1993 in the area of
City Kaithal at Baba Ladana Chowk, both the appellants were found transporting for sale 200 bags of Urea fertilizer from Patran, Punjab, to the
State of Haryana and thereby they contravened the provisions of Sub-clause (iii) of Clause 3 of the Fertilizer (Movement) Order, 1973 (for short
the Order"") and thereby they committed an offence u/s 7 of the Act.
5. After registration of the case, vide recovery memo Ex.PC accused along with truck was apprehended and 200 bags in a truck were recovered
and accused were formally arrested. The matter was investigated and challan was submitted.
6. Prosecution examined PW.1 Gurcharan Singh, Assistant Sub Inspector, who proved ruqa Ex.PA and FIR Ex.PA/1 and thus, he was witnesses
of formal nature.
7. PW.2 Kewal Krishan has stated that on 9.12.1993 some villagers have come to purchase fertilizer and cash memo was issued by his concern
and Prem Kumar who was present in the Court had not visited him. On cross-examination by the Public Prosecutor, he reiterated that Prem
Kumar accused was not known to him. He also denied that Prem Kumar had purchased 200 bags of fertilizers on 9.12.1993 from his shop at the
rate of Rs. 100/- per bag.
PW.3 Vishnu Dutt, Sub Inspector stated that he had prepared the final report u/s 173 Cr.P.C.
8. PW.4 Surinder Singh, Constable, has stated that on that date he was posted along with Attar Singh, Sub Inspector. They had laid a naka and
they apprehended one truck bearing registration No. PAT- 8945. On signal truck was made to stop and 200 bags of fertilizer were found and on
interrogation driver of the truck told his name as Tarsem Singh. In the Court he stated that he is not able to recognize the accused who is present in
the Court. He also stated that he is not able to identify Prem Kumar who was present in the Court.
9. In cross-examination PW.4 Surinder Singh, Constable, admitted that no official from the office of Food & Supplies Department and Sub
Divisional Magistrate''s office was called at the spot. He further admitted that no person from the public was called by the Investigating Officer
even though many persons were coming and going at that time. He admitted in cross-examination that no effort was made to join an independent
witness.
10. PW.5 Suresh Kumar, Constable, has stated that the truck was apprehended and 200 bags were recovered and the accused were present in
the truck.
11. PW.6 Attar Singh, Assistant Sub Inspector, stated regarding nakabandi, apprehension of truck, recovery of 200 bags and arrest of the
accused.
12. In the cross-examination, PW.6 Attar Singh, Assistant Sub Inspector stated that he tried to join private witnesses but they refused to become
witness.
13. The appellants were examined u/s 313 Cr.P.C. Appellant Prem Kumar stated that he was falsely implicated and he was called from the shop
at the instance of Prem Kumar Shorewala. He was not present in the trade nor the fertilizer belongs to him. Tarsem Singh appellant stated that he
has been falsely implicated at the instance of Gurcharan Singh, Sarpanch. He was not driver of truck No. PAT-8945.
14. In defence accused examined DW.1 Bhag Singh. He stated that on 9.12.1993 he along with Sohan Singh and Mehanga Singh had gone to
Pattran to purchase the fertilizers. 50 bags belong to him, 75 bags belong to Sohan Singh and 75 bags belong to Mehanga Singh. He stated that
separate receipts were issued to the owners of the bags of fertilizer. To the same extent is the statement of DW.2 Sohan Singh and DW.3 Mehnga
Singh.
15. DW.4 Randhir Singh, Clerk in the office of Excise and Taxation Department, Kaithal, has been examined to prove that there was one Prem
Chand Shorewala who used to deal in fertilizer and he was partner of the firm Aggarwal Timber Store and his father''s name was Om Parkash.
This witness has been examined to fortify the statement made u/s 313 Cr.P.C. by Prem Kumar appellant that instead of Prem Kumar Shorewala
appellant has been implicated.
16. I have heard Mr. Jasjit Singh Bedi, and Mr. Satish Saini, Advocates, for the appellants and Mr. Sunil Nehra, learned Assistant Advocate
General, Haryana.
17. PW.2 Kewal Krishan who is having a shop at Pattran has specifically stated that he had not sold the fertilizer to the appellant Prem Kumar.
Rather the defence witness DW.1 Bhag Singh, DW.2 Sohan Singh and DW.3 Mehnga Singh, stated that they had purchased fertilizer from
Pattran. PW.4 Surinder Singh, Constable has stated that it is correct that DW.1 Bhag Singh, DW.2 Sohan Singh and DW.3 Mehnga Singh, were
also present in the truck and receipts Ex.P1 to Ex.P3 were taken by the Investigating Officer from them.
18. It emerges from the reading of the evidence and the arguments of the parties that at the relevant time, fertilizer bags were cheap in the State of
Punjab than the State of Haryana. It has been also stated that Pattran falls in the State of Punjab, no doubt is at a short distance of Kaithal from
where the recovery of fertilizer bags were made. It cannot be ruled out that the agriculturists of the area in order to save have been purchasing
fertilizer from the Punjab and transporting the same. DW.1 Bhag Singh, DW.2 Sohan Singh and DW.3 Mehnga Singh are the agriculturists. DW.1
Bhag Singh had taken a definite stand that he had purchased 50 bags of fertilizer, whereas DW.2 Sohan Singh and DW.3 Mehnga Singh stated
that they had purchased 75 bags of fertilizer each. They have also stated that the receipts of purchase Ex.P1 to Ex.P3 were recovered from them.
Prosecution witness PW.4 Surinder Singh, Constable, has also stated that all the three defence witnesses were in the truck when the recovery was
effected and the receipts were also taken in possession from the defence witnesses. PW.2 Kewal Krishan from whose shop according to the
prosecution fertilizer was purchased has stated that the appellant Prem Kumar had not purchased the fertilizer from his shop. From the entire
evidence including the defence evidence, it can be inferred that there was no sale at the instance of the appellants. Nobody has been produced to
prove the fact that the appellants were effecting any sale. At the best it can be stated that the appellants were engaged for transportation of the
fertilizer for the farmers who wanted to use the same for their own agricultural purposes.
19. Hence, it is not safe to maintain the conviction of the appellants and the benefit of doubt can be extended to them. Therefore, the present
appeals are accepted, conviction and sentence of the appellants are set aside and they are acquitted of the charges.