M.G. Gaikwad, J.
1 Heard learned counsel, appearing on behalf of respective parties.
2. The appellant who was accused No. 1 in Special Case No. 1 of 1992, by preferring this appeal, has challenged his conviction for the offence punishable under Section 3(2)(d) read with Section 7(1)(a)(ii) of the Essential Commodities Act as well as sentence of simple imprisonment for seven days and fine of Rs. 1000/-, passed by the learned Special Judge, Ahmednagar.
3. The facts relevant for the purpose of this appeal are as under Appellant/accused No. 1 Baban Shankar Walzade runs a Fair Price Shop at village Nimgaon in Kopargaon Taluka. He was having a permit for sale of kerosene. PW. 4 Madanlal Chopade was working as Supply Inspector at Kopargaon. On 10-03-1989, PW. 4 Chopade received a phone call from unknown person that at Nimgaon, kerosene was being sold in black-market. On that information, immediately he had visited village Nimgaon at about 4.30 p.m. None of the accused were present at their shops. Twelve barrels (tanks) full of kerosene were found lying at a distance of twenty feet from the house of accused No. 1; however, he was not present there. Hence, PW4 Chopde called panch witnesses and recorded panchanama of the said barrels lying there. One barrel containing 25 litres of kerosene was also found lying there. A detailed panchanama (Exh-20) came to be recorded and that property came to be seized. That property was carried by PW. 4 Chopde to Kopargaon. After completion of panchanama, this appellant/accused was alleged to have arrived on the spot. PW. 4 Chopde checked the stock and sale registers of accused No. 1 which were produced before him by the accused. PW. 4 Chopde made an endorsement of inspection of the said registers. Thereafter, he lodged a complaint against the accused in the Police Station, Kopargaon on 08-04-1989 alleging offence under Sections 3 read with Section 7 of the Essential Commodities Act. PW. 5 Head Constable Bhogale, on the complaint of PW. 4 Chopade, registered the offence. PW. 4 Chopade did produce the registers before the Investigating Officer. Same were seized by him under panchanama (Exh-35). Then, the chargesheet came to be filed in the court of Special Judge at Ahmednagar against this appellant and two others.
4. Learned Sessions Judge recorded plea of all three accused. All of them pleaded not guilty and claimed to be tried. Their defence at the trial was of total denial.
5. At the trial, prosecution did examine in all five witnesses. PW 1 Prakash Mate is the panch witness who proved panchanama of seizure of kerosene barrels (Exh-20). PW2 Harun Shaikh and PW3 Ahmed Pathan are the panch witnesses of panchanama (Exh-32), which is a panchanama of seizure of registers, but they did not support the prosecution case. The only evidence material before the Special Judge was the testimony of PW4 Chopade who has stated that he had seized the stock and sale register. He has admitted at the trial that the accused were not found selling kerosene in black-market and the stock found was proper. However,he gave statement that the stock and sale register was not maintained properly. He did not give any details in support of those allegations. However, the learned Special Judge convicted this appellant for not maintaining the accounts as per the condition of the licence and this appellant is convicted for the offence punishable under Section 3(2)(d) read with Section 7(1)(a)(ii) of the Essential Commodities Act and sentenced to suffer simple imprisonment for seven days and fine of Rs. 1000/-. Other two accused who were tried with this appellant/accused came to be acquitted of the offence with which they were charged.
6. The appellant, feeling aggrieved with the said order of conviction, preferred present appeal.
7. On behalf of the appellant, learned advocate Shri Mohd. Mustafa Ahmed Momin submitted that there is no evidence at all to show that the appellant/accused has not maintained the accounts because PW 4 Chopade has not stated a single word about the alleged account books. Entries in the account books have not been proved. However, learned Special Judge, on the basis of the entries in the register which are not proved, recorded the finding that the accounts were not maintained properly for which there was no evidence on behalf of the prosecution. According to him, this order of conviction recordedagainst the appellant needs to be quashed. On the other hand, learned APP Shri Tele supports the order of conviction recorded by the learned Special Judge.
8. There is no dispute that this appellant was possessing Permit issued by the Supply Department for sale and stock of kerosene. PW 4 Supply Inspector Chopade lodged a complaint (Exh-37), making allegations that this appellant and another licence holder Tajoddin were found selling kerosene in black-market in contravention of the terms of licence and thus committed an offence punishable under Section 3 read with Section 7 of the Essential Commodities Act. This complaint came to be filed on 08-04-1989. The complaint itself mentions that PW 4 Chopade received information from unknown person that kerosene was being sold in black-market at village Nimgaon. Hence, on 09-03-1989 itself, he had gone to village Nimgaon Nigoj and seized kerosene barrel. Complaint itself mentions that this appellant had obtained 2000 litres of kerosene from a dealer on 08-03-1989. At the time of visit of PW 4 Chopade, 12 barrels each containing 200 litres of kerosene and one barrel containing 25 litres of kerosene were found lying on the spot. Though this search was conducted on 09-03-1989, PW 4 Chopade did not lodge complaintalleging any offence till 08-04-1989 i.e. for a period of about one month. His complaint itself is vague that the kerosene was found being sold in contravention with the terms of licence.
At the trial, PW 4 Chopade gave evidence about his visit to the spot. He admits that twelve barrels full of kerosene and one more barrel containing 25 litres of kerosene was found lying at a distance of twenty feet from the shop of accused No. 1. He claims that he had checked the stock register and sale register maintained by accused No. 1 and 2 and made remarks in the said register. This is the only evidence given by him in relation to the accounts. He has not uttered a single word as to whether the registers maintained by the accused were updated or whether there were any deficiencies. In the cross-examination, it has come on record that on the very day of this inspection, Tahsildar also had visited that village. He admits that in his presence, no kerosene was found sold. He also admitted that he was not in a position to state as to whether on 09-03-1989, accused No. 1 had sold any quantity of kerosene. He also admitted the possibility of not maintaining the register though kerosene was actually sold by him. He stated that no villager made complaint in relation to kerosene sold by the accused. It has come on record in the cross-examination that on20-02-1989, Anti Corruption Bureau Department had led a trap against him for accepting bribe of Rs. 100/-and based on the said trap, he was prosecuted. Inspite of prosecution against him, he was not suspended. That means, 10-15 days prior to this inspection, the Anti Corruption Department had led a trap against him and that trap was arranged on a complaint lodged by the Union of Fair Price Shop owners i.e. Kerosene dealers. It is not his contention that when he visited the shop of the accused, kerosene was being sold nor the stock was found less. He has also not stated that at the time of his inspection, stock register was not updated.
As stated above, the registers came to be seized, but this witness did not utter a single word about any deficiency in the said register. Inspite of this fact, present appellant is held guilty for not maintaining the accounts by the learned Special Judge. The Special Judge in paragraph No. 9 of his judgement made a reference of entries in the register and observed that in the register, though there were entries of sale of kerosene, signatures or thumb impressions of the persons to whom kerosene was sold were not found obtained. PW 4 Chopade who seized these registers did not give any evidence on this point. It is not the case that anyone of the villagers denied the fact of sale of kerosene to them as per theentries in the register. On the contrary, there is clear admission of PW4 Chopade, the Supply Inspector that no one made complaint with him about the sale of kerosene. It may be mentioned here that Supply Inspector PW 4 Chopade did not make reference of entries in the register nor he alleged any deficiencies therein. However, the court perused that record and conviction came to be recorded for not maintaining the accounts though those entries in the registers were not proved nor exhibited. As such, this conviction recorded on the basis of registers which were not forming the part of the evidence, as the said register entries were not proved by any witness, is found not sustainable. Hence, the order of conviction and sentence needs to be set aside by allowing the present appeal.
9 In the result, appeal preferred by the appellant/accused No. 1 is allowed. The and order of conviction and sentence recorded against the appellant by the learned Special Judge, Ahmednagar in Special Case No. 1/1992, for the offence punishable under Section 3(2)(d) read with Section 7(1)(a)(ii) of the Essential Commodities Act is hereby set aside. The appellant/original accused No. 1 is acquitted of the offences under Section 3(2)(d) read with Section 7(1)(a)(ii) of the Essential Commodities Act. The fine amount if found deposited by theappellant/accused No. 1, be refunded to him. The bail bonds of the appellant/accused No. 1 shall stand cancelled.