Court No. - 41
Case :- CRIMINAL APPEAL No. - 293 of 1992 Appellant :- Madhav Lal Respondent :- State Counsel for Appellant :- S.S. Tripathi Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
The present appeal has been filed against the judgment and order dated 23.01.1992 passed by Special Judge, Gorakhpur in Sessions Trial No. 31 of 1990 under Section 3/7 Essential Commodities Act, 1955 (hereinafter referred to as 'the EC Act') Police Station Puranderpur, District Maharajganj, convicting the accused-appellant for the offence under Section 3/7 of the EC Act and sentencing each of them with rigorous imprisonment for a period of three months and fine or Rs. 500/-.
The brief facts relating to this case are that Sri Surendra Nath Singh, SO of Police Station Puranderpur and SI Surya Vilas of Police Station Puranderpur during patrolling duty along with constable etc., at about 1:45 p.m. on 11.4.1989, apprehended two persons Madhav Lal and Toofani Yadav unauthorizedly carrying diesel to neighbouring country of Nepal in three plastic Jery Cans by each of them on the bicycles and the three plastic Jery Cans by each of them were containing 45 and 35 litres of diesel respectively. The above diesel was being carried in contravention of provisions of Section 10 read with section 2(C) of the Uttar Pradesh High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981, (hereinafter referred to as 'Control Order 1981') which was an offence punishable under Section 3/7 of the EC Act.
A memo of recovery and arrest of 6 Jery Cans from two accused-appellants containing around 80 litres of diesel was prepared on the spot and FIR was lodged at Police Station Puranderpur at Case Crime No. 42 and 43 of 1989.
Upon investigation, charge sheets Ex. A5 and A6 were submitted against apprehended accused Madhav Lal and Toofani Yadav. After framing of charges against them, prosecution produced SI Surya Vilas as PW-1, first informant SO, Surendra Nath Singh as PW-2 and Investigating Officer Umashankar Singh as PW-3. Thereafter the statement of accused persons were recorded under Section 313 Cr.P.C., wherein accused Madhav Lal admitting themselves to be resident of village Karauta, Police Station Mahadea, District Rupandehi, Country Nepal, stated that he was carrying 45 litre diesel to his maternal uncle of village Kharherwa then police apprehended him while accused Toofani Yadav stated that he was carrying 35 litre diesel to his Mama Harihar Yadav in village Karauta for his pumping set and was apprehended by the Police and denied that diesel was being smuggled to neighbouring country Nepal.
Learned Trial Court after hearing the learned counsel for the parties and perusal of records passed the impugned judgment and order of conviction convicting the two appellants as a result of which the convicted accused persons Madhav Lal and Toofani Yadav have preferred this appeal.
The accused were released on bail in this appeal and since then they did not turn up and could not be traced out despite issuance of warrants against them, on which, Smt. Kalpana Singh was appointed as Amicus Curiae to look after their interest.
Heard Smt. Kalpana Singh, Advocate, Amicus Curiae and Sr. LD Rajbhar, learned AGA for the State and perused the record as well as the lower court record.
Learned Amicus Curiae submitted that the prosecution has failed to prove its case against the appellants beyond the reasonable doubt; that the prosecution has failed to produce any independent witness of recovery; that the appellants are alleged to have been apprehended within the territory of India before leaving to their native country Nepal; that it is proved from the evidence on record as has been deposed by DW-1 and DW-2 Mewa Lal and Harihar Yadav; that the appellants were carrying diesel oil for the pumping sets of their maternal uncles and it will not be correct to say that they were unauthorizedly carrying on the diesel oil or smuggling the same to neighbouring country Nepal in contravention of the Control Order or have committed any crime under Section 3/7 of EC Act; that the appeal is liable to be allowed.
Per contra learned AGA supported the impugned judgment and order of conviction and contended that the recovery of 45 litres of diesel in 3 Jery Cans from Madhav Lal and 35 litres of diesel from another 3 Jery Cans from Toofani Yadav is not disputed rather it is admitted as they have admitted to be carrying the same for their uncles; that since the recovery has not been disputed, the requirement to produce any independent witness of recovery does not exist; that DW-1 Mewa Lal and DW-2 Harihar Yadav claiming themselves to be the maternal uncle of respective accused though have stated to had instructed the accused persons to bring diesel oil for their pumping sets and when apprehended by the Police, but both of them in their cross examination have admitted that they did not move any application for release of recovered diesel oil in their favour, which shows that they had no concern with the recovered diesel oil and were produced as false and hired witnesses claiming themselves of maternal uncle of the convicted accused persons; that in any case the two defence witnesses have admitted that there is no entry of purchase of diesel oil in question in their passbooks of pumping set; that in any case carrying the diesel oil for any other person in contravention of Control Order does not relieve the convicted persons from the liability and it is wrong to say that they did not commit any wrong / offence.
Upon hearing the learned counsel for the parties, I find that the recovery of huge quantity of diesel oil, in 3 Jery Cans from each of the accused-appellant who are natives of neighbouring country Nepal is not disputed. The accused-appellants have failed to show that they were unauthorized to carry the same under any permit, licence or Ration Card issued by competent authority. The learned Amicus Curiae has failed to show any illegality or incorrectness in the impugned order of conviction. The accused-appellant from whom huge quantity of diesel has been recovered are neither alleged to be holding any licence of dealership nor were carrying on the same under any permit under Section 12 of Control Order, 1981 nor were carrying on the same on account of entry in the diesel ration cards or diesel ration cards of their Mamas, allegedly issued under Section 11 of the Control Order, 1981. The argument of learned Amicus Curiae for reducing the sentence in view of the fact that case relates to the incident of recovery, which had taken place about 29 years back also has no force because the appellants are enjoying bail and as per their statement under Section 313 Cr.P.C. they were 21 and 25 years old at that time. Moreover, they are absconding after having been granted bail and there is no sufficient ground for reducing the sentence. The appeal is devoid of merits and is liable to be dismissed.
The appeal is dismissed. The impugned judgment and order of conviction and sentence is upheld.
The accused appellants are on bail. They are directed to surrender forthwith for undergoing the remaining period of sentence and let non-bailable warrant be issued against them by the trial court.
I appreciate the valuable assistance rendered by learned Amicus Curiae Smt. Kalpana Singh Advocate.
Let the lower court record be transmitted back to court below forthwith, along with a copy of this order for ascertaining arrest of accused-appellants.
Order Date :- 29.10.2018 Akram
Court No. - 41
Case :- CRIMINAL APPEAL No. - 293 of 1992 Appellant :- Madhav Lal Respondent :- State Counsel for Appellant :- S.S. Tripathi Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
Smt. Kalpana Singh, Advocate was appointed as Amicus Curiae in this case.
Registrar General of this Court is directed to pay an honorarium of Rs.5500/- to the learned Amicus Curiae for rendering effective assistance in the matter. The said amount be paid to her within two months.
Order Date :- 29.10.2018 Akram