Judgment:
Chandra Mohan Prasad, J.
1. The appeal is against the judgement dated 30.4.92 of the Special Judge, Begusarai passed in Garhpura P.S. Case No. 4 of 1986 (G.R. No. 221/86) whereby the appellant Ram Sewak Mahton has been held to have violated the Clouse-10, 16 and 17 of Bihar Trade Articles (Licences Unification) order 1984 and also Clause-5(i)(ii), (vii) and 10 of Form-C (terms and conditions) of Bihar Trade Articles (Licences Unification) order 1984 and accordingly convicted under Section 7 read with Section 12(A) of the essential commodities Act and sentenced to undergo R.I. for one year.
1. The prosecution commenced with written report (Ext.2) dt. 30.1.86 of the informant (P.W.3), a Supply Inspector who stated that on 29.1.86 at about 11 A.M. he (P.W.3) inspected the shop of the appellant who is P.D.S. dealer and found that a board was hanging at the shop and there was no entry in the board. He demanded register from the appellant and then the appellant went into his house and brought an old register of the period of October, 1985 with respect to stock and sell of sugar and kerosene oil. Any new register was not produced. At the insistence of the informant the appellant produced new register which showed that 700 liters of kerosene oil had been supplied on 25.1.86 but any quantity of kerosene oil was not found present in the stock. The appellant could not show any sell of the kerosene oil to the ration card holders nor any distribution register was produced. The informant also obtained a self written and signed statement (Ext.3) dated 29.1.86 of the appellant wherein he admitted that he had obtained a supply 700 liters of kerosene oil on 25.1.86 and that the stock of the kerosene oil had not been mentioned in the stock register and the stock of the kerosene oil was not with him nor there was any distribution register with him. Making of the statement by the appellant was witnessed by Upendra Paswan (P.W.1) who also put his L.T.I. on the statement with an endorsement that the statement was made in his presence. The informant also stated in his written report that he had seized two registers from the appellant by making a seizure list. The aforesaid report (Ext.2) of the informant was addressed to the Anchal Adhikari. On the basis of report, the Anchal Adhikari, Bakhri wrote to the Officer Incharge, Bakhri P.S. for institution a case against the appellant. Accordingly, F.I.R. was instituted and investigation commenced and on completion of the investigation charge-sheet was submitted and appellant was put on trial and on completion of trial, the appellant has been convicted and sentenced as above.
2. As many as four witnesses were examined by prosecution P.W.1, Upendra Paswan is witness in whose presence, the statement (Ext.3) of the appellant is said to have been made, but this witness has turned hostile and he admitted his L.T.I. on the statement but he further deposed that the investigation of the shop was not made in his presence nor the statement was taken up in his presence.
3. The P.W.2, Md. Raza Ansari is the I.O. of the case. The P.W.3, Damodar Poddar is the informant and P.W.4 Ashok Kumar Singh is the wholesale dealer who was stated to have supplied 700 liters of kerosene oil to the informant.
4. The appellant also examined two defence witnesses D.V.1, Ram Balak Yadav is a purchaser of kerosene oil who deposed that on 7.4.86 he had purchased two liters of kerosene oil from the appellant for Rs. four and paise forty and he had also put his signature on the distribution register marked Ext.A. The D.W.2. Gultan Pd. Yadav was President of Vigilance Committee during the relevant time and he deposed that on 7.4.86 and 8.4.86 700 liters of kerosene oil was distributed on sell by the appellant and that the distribution was made in presence of the President and Members of the Vigilance Committee. He also deposed that 700 liters of kerosene oil was the quota for the month of January, 1986. He further deposed that the members of the Vigilance Committee had given in writing before the S.D.M. complaining that the Supply Inspector (informant) had falsely implicated the appellant in this case. He also deposed that 700 liters of kerosene oil had been got distributed in their presence. He further deposed that 700 liters of kerosene oil which was present in the shop had been distributed in his presence. He further deposed that the appellant had filed a show cause reply before the S.D.M. and finding his show cause reply satisfactory the S.D.M. vide his letter under Ext.E had recalled the order about cancellation of the licence of the appellant.
5. The D.W.3, Rama Kant Rai is a member of Vigilance Committee who also deposed that the 700 liters of kerosene oil had been distributed in his presence to the ration card holders. He further deposed that 268 liters of kerosene oil was distributed on 7.4.86 and remaining was distributed on 8.4.86. He has proved the distribution register which was marked Ext.C. The P.Ws. 2 & 3 have signed over the seizure list.
6. The informant (P.W.3) says that he had inspected the appellant's shop but any kerosene oil was not found present and that the appellant did also give in writing that any kerosene oil was not present and that he had not mentioned any kerosene oil in his stock. The statement of the appellant (Ext.3) mentions that any kerosene oil was not present in stock in the shop and that the kerosene oil had also not been mentioned in the stock register. The learned Counsel for the appellant argued that the Supply Inspector being a person in authority had obtained the statement of the appellant under threat and duress and that the statement is not a voluntary statement in this regard, The learned Counsel pointed out the statement of the P.W.1, Upendra Paswan who is said to have sinned on the statement as a witness but in his evidence this witness did not support the prosecution story and he stated that although there exists his L.T.I, on the statement but the statement was not taken in his presence nor the investigation was made in his presence. Vide the statement (Ext.3) the prosecution case is that according to the admission of the appellant himself, the stock of the kerosene oil was not mentioned in the stock register but in his written report (Ext.2) itself, the informant has mentioned that the stock register of kerosene oil was produced by the appellant before him and on perusal of the stock register he had found that the supply of 700 liters of kerosene oil was shown in it. This has also been stated by the informant in his evidence before the court. Thus when the informant himself admits that stock of 700 liters of kerosene oil was mentioned in the stock register how the appellant could have made the statement of the nature that the stock of kerosene oil was not mentioned by him in the stock register. This circumstance supports the claims of the defence that the statement (Ext.3) of the appellant was obtained under threat and duress because in ordinary course when the stock of kerosene oil was mentioned in the stock register he would not have made any such statement voluntarily. In such view of the matters, the statement (Ext.3) of the appellant cannot be found to be of any avail to the prosecution case.
7. The informant claimed that the appellant had sold 700 liters of kerosene oil in black market but he does not appear to have made any kind of enquiry into the matter to find out whether the kerosene oil was sold in black market or not? At para-3 of his evidence the informant deposed that at the time of investigation he was alone and he stayed at the appellant's shop for 45 minutes and that during the period none of the ration card holders appeared to complain before him that he was not supplied kerosene oil. At para-4 of his evidence he also deposed that he had not made any enquiry from any ration card holders that the appellant was selling kerosene oil in black market.
8. The informant has further stated at para-5 of his evidence that the kerosene oil is distributed on the orders and in presence of the Vigilance Committee. The evidence of the President and Members of the Vigilance Committee is relevant to be noticed. The D.W.2, who is the President of the Vigilance Committee has deposed that the 700 liters of the kerosene oil was distributed by the appellant on two dates i.e. 7.4.86 and 8.4.86 in the presence of him and the members of the Vigilance Committee. The D.W. 3 who is a Member of the Vigilance Committee has also testified that the 700 liters of the kerosene oil had been distributed by the appellant on 7.4.86 and 8.4.86 in his presence. The D.W.1 who is a villager has testified that he had purchased two liters of kerosene oil on 7.4.86 from the appellant. The defence has proved the distribution register (Ext.C) which mentions the signature and L.T.I. of the villagers to whom the 700 liters of kerosene oil had been distributed on sell and the register also mentions the signatures of the resident and members of the Vigilance Committee out of whom the D.Ws. 2&3 have deposed before this court that distribution was made in their presence. Considering this evidence. I find that the prosecution story that the appellant did not sell the 700 liters of the kerosene oil to the ration card holder is not believable.
9. The informant deposed at para-2 of his evidence that he had seized the kerosene oil register and stock register. The I.O. (P.W.2) at para-1 also deposed that he had recorded the statement of the informant and he had also seized some register given by the informant. Thus, admittedly according to the prosecution case the appellant's register was seized by the informant which was given to the I.O. During trial the prosecution did not produce any such register. The learned A.P.P. could not give any satisfactory reply about non-production of the register seized by him. In such view of the matters an adverse inference has to be drawan against the case of the prosecution that the register if produced would have gone against the case of the prosecution, hence, it was not produced by the prosecution.
10. Thus, considering the evidence brought by the prosecution and also considering the evidence put forth by the defence, I find that the prosecution case is highly doubtful and prosecution has not been able to bring whom the charges levelled against the accused. Therefore the appellant is acquitted of the charges. Accordingly, the order of conviction as passed by the learned Special Judge is hereby set aside. The appeal is allowed. The appellant is discharged from his liability.