S.N. Pathak, J.@mdashThis appeal is directed against the judgment dated 6.9.91 passed by Sri B.K. Thakur, Special Judge (E.C. Act) Muzaffarpur in trial No. 21/91 (Maniari Rs. Case No. 31/88). The Appellant was convicted for the offence u/s 7 E.C. Act and was sentenced to undergo (sic) for 3 months.
2. The prosecution case was based on the self-statement of Sri Umesh Pd. Srivastava, Inspector of Police Sadar ''A'' Anchal, Muzaffarpur. He alleged in the fardbeyan that on 11.4.88 at 1.45 p.m. he raided the Line Hotel called "Raghunathpur Line Hotel" which allegedly belonged to Arjun Patel on confidential information. He found that 21/2 drums of diesel were stacked in the sahan of the aforesaid line hotel. The aforesaid diesel drums were seized in presence of the independent witnesses and seizure list was prepared. Arjun Patel was searched at his house, but he was found absconding. There was no paper for storing those diesel drums in the sahan of the hotel.
3. The accused-Appellant took up the defence of false implication and denied that the aforesaid hotel belonged to him and that he had stored diesel for sale without any valid licence. The aforesaid statements of the accused came from his examination u/s 313 Code of Criminal Procedure.
4. The prosecution had examined 5 witnesses and brought an the record seizure list (Exhibit 2), fardbeyan of the informant, Umesh Pd. Srivastava (Exhibit 3), formal FIR (Exhibit 4), and alleged signatures of P.Ws. 1 and 2 (Exhibits 1 and 1/1).
5. P.Ws. 1 and 2 both denied any seizure of any drum full of diesel in their presence. P.W. 1 rather said that when he was going to his own line hotel at his village, he was asked by the police officer to sign on a paper. Nothing was seized in his presence and in cross-examination by the accused, this witness said that the accuaed-Appellant was resident of Raghunathpur, but he did not own any line hotel. P.W. 2 had gone to the hotel of P.W. 1 for taking tea. This witness said in-chief itself that Arjun Patel owns no line hotel. This witness also said in cross-examination by the accused that his signature was taken on plain paper, in cross-examination by the accused, he said that there was a petrol pump at a distance of 10 Laggis from the hotel of P.W. 1, Bisheshwar Sah. P.W. 3 was the informant of the case. His evidence is that he went to the hotel of Arjun Patel with raiding party and found 2 1/2 drums of diesel at the back portion of "Raghunathpur Line Hotel" in sahan. 5 empty and 21/2 drums full of diesel were seized by him. He proved seizure list (Exhibit 2). He searched the accused-Appellant, but he found him absconding. He also brought his own fardbeyan (Exhibit 3) on the record. In cross-examination by the accused, this witness, admitted that he did not see any paper in order to ascertain and confirm the fact that Raghunathpur line hotel belonged to the Appellant. This witness further admitted that he had no connection of any kind with the aforesaid hotel. He learnt on confidential information that this hotel belonged to Arjun Patel. P.W. 4 was member of the alleged raiding party and he was reader attached to P.W. 3. This witness corroborated whatever was stated by P.W. 3, but in cross-examination by the accused, this witness also admitted that he had no concern with the aforesaid line hotel. He also did not go to this line hotel before the alleged occurrence. He did not have any proof of the fact that this "Raghunathpur Line Hotel" belonged to the Appellant. He was unable to say as to who told him that the aforesaid hotel belonged to accused-Appellant, P.W. 5 was the investigating officer and he was also a member of the raiding party and he admitted in-chief itself at page 2 of his deposition that he had seized incriminating articles in presence of P.W. 3 Umesh Pd. Shrivastava. He arrested the accused-Appellant on 24.7.88 and in cross-examination by the accused, this witness also admitted that before the alleged occurrence, he had neither any concern nor any connection with the accused-Appellant. He added that even on earlier occasion he had gone to the house of Arjun Patel to make some kind of infor-mation. He described the P.O. a hotel having two rooms and one another room which was used as residence by the accused. The two front rooms were used for running hotel. However, he failed to note the aforesaid fact in the case diary. He failed to enquire as to what was the plot number of the aforesaid hotel and on whose land the hotel was there. Incriminating articles were seized from the sahan on the rear portion of the hotel. Wife of the accused and children were present, where seizure was being made but they failed to affix their signatures on the seizure list. He failed to state the aforesaid denial on the seizure list. He further admitted that there was Parti land in front of the hotel and he was confronted with the question whether he had implicated the accused-Appellant falsely, and spared the real culprit, but he denied the suggestion.
6. The aforesaid evidence clearly suggests that concerned drums of diesel were seized from a particular alleged open land on the alleged Raghunathpur Line Hotel Admittedly, according to the evidence of P.W. 5, wife of accused-Appellant and children were present there. So if at all concerned drums full of diesel belonged to the accused, police officer ought to have obtained signature of the family members of the Appellant, and he should have handed over copy of the seizure list to his wife. If at all, she denied to make any endorsement on the seizure list, there should have been an endorsement to this effect on the seizure list which was admittedly missing. Moreover, the fact that the concerned line hotel belonged to the accused should also have been established by evidence either documentary or oral. None of the witnesses examined in the court said in any positive statement that the aforesaid hotel belonged to the accused-Appellant. P.Ws. 3 to 5 all have failed to state in clear terms as to what was the source of knowledge regarding the fact that this hotel belonged to the accused-Appellant. There is no evidence, on the record to indicate that accused-Appellant was present at the time of seizure.
7. The opinion of the trial court that since P.Ws. 1 and 2 admitted their signatures on the seizure list, they were in substance supporting the alleged seizure is not based on logical premises. P.W. 2 has categorically stated that his signature was obtained on plain piece of paper and P.W. 1 said that his signature was obtained by the police officer when he was going to his own line hotel. It is not difficult for the police officer to obtain signature of any body on any plain paper.
8. In view of the above circumstances, the trial court has erred in relying on the signatures of P.Ws. 1 and 2 on the seizure list. The rest of the witnesses, all, are police officers whose evidence has already been referred to above, from which it transpires that neither they had personal knowledge that Raghunathpur line hotel belonged to the accused-Appellant nor they had other reliable source of information that this hotel actually belonged to accused-Appellants. Moreover even if it is admitted that any drum full of diesel was seized from the P.O., admittedly, it was seized from the open sahan in the back portion of the hotel. So from the aforesaid facts, it cannot be definitely said that the aforesaid Incriminating articles were in possession of the accused-Appellant or in possession of any of his family members. In any view of the matter, the accused-Appellant will not be connected with the alleged seizure on the basis of materials on records.
9. I do not think the order of conviction and sentence recorded by the trial court was justified.
10. In the result, this appeal is allowed and the Appellant shall stand acquitted.
