Full Judgment
Raghuvendra S. Rathore, J.
1. This Criminal Appeal has been filed under Section 374, Cr.P.C. against the judgment dated 22-12-1984 passed by the Special Judge (Essential Commodities Act), Jaipur whereby the learned trial Court has convicted the accused-appellant under Section 3/7 of the Essential Commodities Act and sentenced him for 6 months R.I. and a fine of Rs. 100/-. in default of which, to further undergo 15 days R.I.
2. The brief facts of the case are that, an FIR came to be lodged at Police Station, Bhinai, District Ajmer by the Enforcement Officer on 29-1-1983. It was alleged in the report that the informant along with the Inspector had inspected the shop of M/s. Raju Traders on 27-11-1982. They are said to have been informed by the appellant that he is the salesman of the firm and Proprietor of the same is one Harish Kumar. It is further stated that during the said inspection, following irregularities were found:
(i) that the firm, without holding any valid license provided under Rajasthan Trade Articles (Licence & Control) Order, 1980 (hereinafter to be referred as Order, 1980, for short) purchased 17 Qutl. and 54 Kg. wheat from M/s. Rakesh Kumar Shyam Sunder, Commission Agent on 3-9-1982 through bill No. 3127 in one transaction and for that the firm had to procure a valid licence and this wheat was sold on the shop which is clear from bill Nos. 297, 2008, 124, 1901 and 1421.
(ii) that on the shop a list of prices and stocks of trade articles was present but the rates and stocks were not mentioned in that, hence the firm has done the violation of Clause 15 of the Order of 1980.
(iii) that the firm has never issued the bills on the purchase exceeding Rs. 10/- and it was also stated that the firm is not having any bill book hence it has done the contravention of Clause 17 of Order, 1980.
3. After registration of an FIR in the aforesaid report the police filed charge sheet on 9-8-1984 for contravention of Clauses 3, 15 & 17 of Rajasthan Trade Articles (Licensing & Control) Order, 1980 and as such they have committed the offence under Section 3 of the Essential Commodities Act which is punishable under Section 7 of the said Act. The said charge-sheet was filed against the present appellant and one another namely, Harish Kumar.
4. After submissions of the charge-sheet, the learned trial Court i.e. the Special Judge (Essential Commodities Act), Jaipur had thereafter the read out the substance of the accusation to the appellant on 27-9-1984, along with the co-accused Harish Kumar. The appellant denied the accusation and claimed for trial. During the trial the prosecution got examined, 8 witnesses and also submitted that the documents including the receipt, etc., in support of its case. Subsequently, on completion of the prosecution evidence, the statement of the accused appellant under Section 313, Cr.P.C. was recorded wherein he denied the charges put forward by the prosecution. The accused-appellant had specifically stated that at the relevant time the shop was closed and he was at his residence. He has further stated that he was ill at that time and it was the informant as well as the Inspector who called him to the shop, through his brother Laxman. It has also been mentioned in the said statement that the shop was got opened and signatures were procured on the copy of the price board under duress, the accused appellant had produced three witnesses in defence and also submitted some documents.
5. Learned trial Court, on conclusion of the trial held that there was no contravention of Clauses 3 & 17 of the Order of 1980. However, the learned trial Court was of the view that there had been the contravention of Clause 15 of the said order, committed by the accused-appellant. It is noteworthy that the co-accused Harish Kumar was acquitted of all the charges levelled against him. Consequently, the learned trial Court passed the impugned judgment on 22-12-1984 convicted the accused-appellant for contravention of Clause 15 of the Order of 1980 and sentenced him for six months R.I. and fine of Rs. 100/-. Learned Counsel for the appellant has submitted, inter alia that in absence of seizure of the board which was to display all the stock position and the prices only a copy of the same was got prepared, no offence can be said to be proved on such evidence. He has further submitted that, it is an undisputed fact that neither the display board was seized nor any photograph of the same had been taken. Therefore, he has submitted that merely preparing a copy of the notice board and submitting the same during the trial is an inadmissible piece of evidence. In support of his submissions he has placed reliance on the case of State of Rajasthan v. Mishri Lal 1990(1) RLR 711.
6. Learned Counsel for the appellant has further submitted that a substantial part of the prosecution case has been specifically disbelieved by the learned Court below itself by holding that there has been no violation of Clauses 3 & 17 and it has not been held to be proved against the accused. He has also submitted that the owner of the shop namely, Harish Kumar has been acquitted of all the charges by the learned Court below. Learned Counsel for the appellant further submitted that there was no mens rea on the part of the appellant in the commission of the alleged crime. The learned trial Court, according to the learned Counsel, has arrived to the conclusion that only Clause 15 of the Order 1980 has been violated and this itself goes to show that the offence alleged is merely on the ground that there was improper display of the prices on the board. But he has further submitted that even this allegations cannot be said to have been proved in absence of seizure of the board and prosecution has failed to produce the primary evidence on record. The learned Public Prosecutor has tried to support the judgment passed by the learned Court below and submitted that the prosecution has been able to prove its case beyond doubt. He has further submitted that the appellant in his statement under Section 313, Cr.P.C. has stated, that in the display board the price list was not given. He has further submitted that the learned Court below has disbelieved the defense of the accused that he was not present at the time of inspection or that he was ill.
7. I have considered the aforesaid submissions made by the rival parties and has also perused the record of the trial Court. In this case, the inspection had taken place on 27-11-1982 and the instant report was lodged only on 29-1-1983. The prosecution had launched the case against the appellant as well as the owner of the shop namely, Harish Kumar. The charge-sheet was filed against the accused-persons for contravention of Clauses 3, 15 & 17 of the Order of 1980 and as such they were said to have committed the offence which is punishable under Sections 3/7 of the Essential Commodities Act. But the learned Court below had itself come to the conclusion that the prosecution has failed to prove the case in respect of contravention of Clauses 3 & 17 of the Order of 1980. Furthermore, the learned trial Court has disbelieved the case of the prosecution as against Harish Kumar, the owner of the shop. It was only in respect of non-disclosure of quantity and price on the display board, that learned trial Court held that the accused-appellant has contravened Clause 15 of the Order of 1980 and convicted him for the offence under Sections 3/7 of the Essential Commodities Act and awarded sentence of six months and a fine of Rs. 100/-.
8. In my opinion, the learned Court below has seriously erred in holding the offence to be proved against the accused appellant for contravention of Clause 15 of the Order of 1980 as the prosecution could not prove the same in absence of seizure of the display board, itself, which was the primary piece of evidence. Undisputedly, only a copy of the display board was got prepared by the accused-appellant and has been placed on record by the prosecution. Such evidence is inadmissible in law because the same is a secondary piece of evidence. Neither the board itself, nor a photograph of the same was put on record by the prosecution so as to bring the primary evidence on record. As has been held by this Court in the case of Mishri Lal (supra), I am of the considered opinion that no conviction can be based solely on such secondary piece of evidence as placed on record by the prosecution.
9. Consequently, this Criminal Appeal is allowed and impugned conviction and sentence awarded by the learned Court below on 22-12-1984, is quashed and set-aside. Accused-appellant is acquitted of all the charges levelled against him. His bail bonds are discharged.