Court No. - 11
Reserved on 20.03.2018 Delivered on 29.03.2018 Case :- CRIMINAL APPEAL No. - 10 of 1991 Appellant :- Gopal Prasad Respondent :- State Of U.P.
Counsel for Appellant :- Lalji Sahai Srivastva,Sanjay Srivastva Counsel for Respondent :- A.G.A.
Hon'ble Abhai Kumar,J.
This criminal appeal has been preferred challenging the judgment and order dated 22.12.1990 passed by Special Additional District & Sessions Judge, Varanasi in Special Criminal Case No. 72/84, whereby appellant Gopal Prasad was convicted under Section 3/7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for three months alongwith fine of Rs. 5000/- and in default of payment in fine to further undergo for one month simple imprisonment.
For the purpose of this appeal, brief facts of the case are as follows:
On 16.7.1983 at about 3.00 p.m., the business premises of Firm Chunni Lal and Sons was inspected by A.R.O. Chetganj, Varanasi, which was a wholesale dealer of kerosene oil. In the stock register, 600 Ltrs. of surplus kerosene oil was found and it is told to the inspecting body that 600 ltrs. of kerosene sold to one retailer Gopal Prasad of Mughalsarai. Cash memo of the sale was also shown, upon which signature of Lalji was there and in the stock register, entry for selling to Firm Gopal Prasad is also made and signature of Lalji was also found in the stock register. It is further contention of the prosecution that in the stock register of Firm Gopal Prasad, which was found in shop of Firm Chunni Lal, entry of only 400 ltrs. was found on 16.7.1983 and total stock shown to be 473 ltrs. On the basis of this entry, it has been averred by the prosecution that 200 ltrs of kerosene oil has been black-marketed by Gopal Prasad.
It is the contention of Firm Chunni Lal and sons that Firm has nothing to do with the oil in question and same was already sold to Firm Gopal Prasad but he did not lift 600 Ltrs. of kerosene oil, that remain in the premises of Firm Chunni Lal and sons. Case was registered against Chunni Lal, Gopal Prasad as well as against Lalji. During trial, Chunni Lal as well as Lalji were exonerated of the charges whereas Gopal Prasad has been convicted as referred above. Aggrieved by same, this appeal has been preferred.
It is submission of the learned counsel for the appellant that trial court convicted the appellant on two grounds. The appellant was held vicarious liable for the act done by Lalji and it has been observed by the trial court that it was Gopal Prasad who sent Lalji for purchasing the liqour alongwith stock register and if any act has been done by Lalji, appellant is responsible for that.
The defence of the appellant is also not accepted that appellant was not doing the retailer-ship of kerosene rather it was his brother-in-law (Sadhoo) responsible for all the deeds. The licence of Lalji was suspended, then Lalji took the licence in the name of appellant without his knowledge and business is being carried by Lalji. Appellant was in service and has nothing to do with the business which is being carried by Lalji. It is also submission of the learned counsel that trial court observed that earlier Gopal Prasad/appellant did admit his retailer-ship but later on he resiled from his earlier statement. It is submission of the learned counsel that earlier statement was not in the knowledge of the appellant rather counsels got the blank- papers signed from the appellant and they were misused by the counsels on the behest of coaccused Lalji. It is also submitted by the learned counsel that presumption is also drawn against the appellant by the trial court on the basis of Section 10(C)/14 of the Essential Commodities Act. It is further contended that stock register of Firm Gopal Prasad was found in the premises of Firm Chunni Lal and sons and it is admitted fact that this register was produced before the Firm Chunni Lal and sons and entry in that register regarding the purchase of liquor has been made in the presence of Lalji but entry regarding the incoming of 400 ltrs. of kerosene oil instead of 600 ltrs. has been made by Lalji or somebody else and not by the appellant and this forgery is being committed by somebody else without the knowledge of the appellant and if some fraud has been committed without being instructed by the appellant, then he cannot be held vicariously liable.
Learned AGA vehemently opposed the contention of the learned counsel for the appellant and submitted that from the stock register it is clear that instead of 600 ltrs. kerosene oil, only 400 ltrs. has been shown as input and that is why it was intention of the appellant to black-market the rest of 200 ltrs. of kerosene oil. The facts are being proved orally as well as by documentary evidence and finding returned by the trial court not liable to be altered.
Trial court acquitted Chunni Lal as well as Lalji and from that it can be inferred that excess 600 ltrs. oil, which was found in the premises of Chunni Lal and sons, was purchased by the Firm Gopal Prasad. It is also not disputed that Firm Gopal Prasad was authorized to purchase 600 ltrs. of kerosene oil, as permission in this regard was given by competent authority. Sale of 600 ltrs. is also entered in the stock register of Firm Chunni Lal and sons and cash memo in this regard is also issued. The only point that remains whether entry in the stock register regarding 400 ltrs. of kerosene oil is done on the behest of the appellant and it is being done by somebody else without the knowledge of appellant. Whenever any defence is being put forward by the accused that is not to be proved in the same manner as it is to be proved by the prosecution. If any doubt can be created by the appellant by his defence in the prosecution story then same is sufficient. This can be done by the defence side either by producing evidence on its behalf or facts can be brought before the court from the evidence produced by the prosecution.
So far as the earlier statement of the appellant is concerned whereby he has admitted that he was doing the work of Firm Gopal Prasad, it has been stated by the learned counsel that blank-papers were got signed by the counsel and on the behest of Lalji same were used against him. In this context, role of Lalji is to be seen. In his statement under Section 313 Cr.P.C., he has categorically denied his signature in the stock register of Firm Chunni Lal and sons as well as in the cash memo and he has altogether denied his association in the purchasing of 600 ltrs. of kerosene oil. From the stock register of Firm Gopal Prasad it can be inferred that all the time, whenever kerosene is being purchased, it is being purchased by Lalji and in the stock register at every place his signature is there. From the perusal of stock register of Firm Chunni Lal and sons, it can be inferred that whenever kerosene is being sold from this Firm to Firm Gopal Prasad, it is being received by Lalji. At no place, signature of Gopal Prasad is available in the stock register of Firm Chunni Lal and sons.
400 ltrs. of kerosene oil was purchased on 10.6.1983 by Firm Gopal Prasad from the Firm Chunni Lal and sons and signature of Lalji is there. Similarly, 400 ltrs. of kerosene oil was purchased on 30.6.1983 by the Firm Gopal Prasad and signature of Lalji is there. 600 ltrs. of kerosene oil that was purchased on 16.7.1983, signature of Lalji finds place in the stock register of Firm Chunni Lal and sons, even in the stock register of Firm Gopal Prasad, signature of Gopal Prasad is not there, except on page one. From this fact, it can very well be inferred that it was Lalji who was carrying all the business of Firm Gopal Prasad and contention of the learned counsel for the appellant that Lalji was doing the business in the name of Firm Gopal Prasad after his licence is being suspended is having substance and same can also be verified from the discussion that is done herein.
It is admitted fact that stock register of appellant was found in the shop of Firm Chunni Lal and sons, so if any entry is being made on 16.7.1983, when 600 ltrs. of kerosene oil is being purchased, it ought to have been done by Lalji and not by Gopal Prasad.
Prosecution has utterly failed in proving the fact that entry of 400 ltrs. of kerosene oil is being made on the behest of appellant. From the perusal of stock register of Firm Gopal Prasad it can also very well be inferred that this entry is being wrongly made and it could have been made not by Lalji or Gopal Prasad but by some other person just to implicate the Firm Gopal Prasad. This stock register starts from 29.5.1983. There is entry of receipt of kerosene, daily sale and remaining stock. Whenever kerosene is being purchased, same is being entered in the stock register and at every place amount of entry is same which is being purchased by the Firm Gopal Prasad. It has been averred in the stock register as to how much kerosene oil is being permitted to be purchased by the Firm Gopal Prasad, then on the permission same is being purchased from the Firm either Chunni Lal and sons or Modiram Mehgiram. Whatever quantity is being purchased, it is being exactly entered in the stock register. On 29.5.83 - 200 Ltrs. kerosene oil was purchased and same entry was made. On 31.5.83 - 200 ltrs. of kerosene oil was purchased and same entry is being made. On 10.6.83 - 400 ltrs., on 14.6.83 - 600 ltrs., on 18.6.83 - 400 ltrs., on 30.6.83 - 400 ltrs and on 6.7.83 - 400 ltrs. are being purchased and same entries are being made in the stock register regarding the stock. The only discrepancy regarding the purchase and entry in the stock register is on the disputed date that is on 16.7.1983, on that date 600 ltrs. of kerosene oil is being purchased but only 400 ltrs. has been mentioned. Prosecution has utterly failed to prove this entry of 400 ltrs and as to why a person will make a wrong entry on the date of raid whereas in all the above referred dates correct entries are being made. It can also be inferred that on the earlier occasion entries are being made by Lalji as he was the person who was making purchase. It is also beyond comprehension as to why Lalji will make wrong entry when rest of the entries are being correctly made by him. When purchase is already mentioned in same register only a fool will make incorrect input in stock in the same register. Moreover when purchased kerosene did not reach to the premises of Firm Gopal Prasad, whey an input be made in stock register. Input is to be made only when oil reaches the premises from where sale is to be made, so disputed entry in the stock register of Firm Gopal Prasad is without any reason and certainly manipulated. From this fact it can be accepted that this entry is being made just to implicate the Firm Gopal Prasad falsely.
On the basis of above discussion, this Court is of the view that Gopal Prasad was not running the Firm Gopal Prasad rather Lalji was running the Firm in the name of Gopal Prasad and the entry of 400 Ltrs. has been shown in the stock register is not being made either by Gopal Prasad or by Lalji rather it is being made just to implicate Gopal Prasad and just to justify the raid conducted. So far as the observation of the trial court is concerned, Section 10(C)/14 is not applicable in the case, I do not find any reason for the application of that Section and from the perusal of that section, this application has been wrongly made. It is also observation of the trial court that appellant did not get his licence revoked, in case he was not doing the business or in case he had not taken licence in this regard. The contention of the learned counsel is also tenable. As per learned counsel, cancellation of licence by the appellant was not required as it is automatically being cancelled when Firm is being challaned. As per him, one of the condition of licence enumerated at Serial No. 9, the licence of the appellant will get automatically cancelled, which runs as follows:
"If the licensee contravenes any of the conditions of this licence or found to have made any incorrect statement in his application for a licence or in any return submitted by him or any accounts maintained by him, his licence may be cancelled and he shall also be punishable under Section 7 of the Essential Commodities Act, 1955."
So this adverse inference of trial court is of inconsequential and has no bearing for finding appellant guilty.
In view of the above, appeal succeeds and is allowed.
The conviction order dated 22.12.1990 passed by Special Additional District & Sessions Judge, Varanasi in Special Criminal Case No. 72/84, whereby appellant Gopal Prasad was convicted under Section 3/7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for three months alongwith fine of Rs. 5000/- and in default of payment in fine to further undergo for one month simple imprisonment, is hereby quashed and appellant is acquitted of the aforesaid charges.
Lower court record alongwith a certified copy of this order be sent back to the district court concerned immediately for further necessary action.
Order Date :- 29.3.2018 Ranjeet Sahu