CRIMINAL APPEAL None on 14 June 1997

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

Criminal Appeal No. 697-SB of 1998Date of decision: 23[rd] March, 2010

Vidya Parshad Tiwari

State of Haryana

Versus

… Appellant

… Respondent

CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present:Mr. Harbhagwan Singh, Senior Advocate with Mr. Amit Kumar, Advocate for the appellant.

Mr. Manish Deswal, Deputy Advocate General, Haryanafor the State. for the State.

KANWALJIT SINGH AHLUWALIA, J.

Present appeal has been filed by Vidya Parshad Tiwari son ofRam Saran Tiwari. He was named as an accused in case FIR No.729dated 14.06.1997 registered at Police Station Central Faridabad underSection 7 of the Essential Commodities Act, 1955 (hereinafter referred toas, ‘the Act’). The appellant has been convicted by the Court of SpecialJudge, Faridabad.

The appellant was a Depot holder for supplying sugar andkerosene as ration to the beneficiaries under the Public DistributionSystem. The trial Court came to the conclusion that the accused had failedto maintain the account books properly regarding the months of May andJune, 1997. He failed to account for 4 quintals 42 kilograms and 50 gramsof sugar and 1005 liters of kerosene pertaining to the quota for the monthof May, 1997. The appellant also failed to account for 900 liters ofkerosene out of the allotted quota for the month of June, 1997. The appellant had not maintained the sales and stock registers in consonancewith the provisions of Clause-9 of the Haryana Prevention of Hoarding andMaintenance of Quality Order, 1977 (hereinafter referred to as, ‘the QualityOrder’). Furthermore, it was held that the sale register of sugar for themonth of May 1997 contained various blank entries against whichsignatures of the consumers were appended and thus, he had alsoviolated Clause-6 of the Quality Order. For these violations, the appellantwas held guilty of offence under Section 7 of the Act. Having held theappellant guilty, he was sentenced to undergo rigorous imprisonment for aperiod of one year and to pay a fine of Rs.5000/-, in default of payment offine to further undergo rigorous imprisonment for three months. It hasbeen submitted that the appellant had deposited the fine.

In the present case, FIR was registered on the basis of awritten communication sent by J.B. Gondia, District Food and SuppliesController, Faridabad. It was stated in the FIR that the complainant alongwith his staff on 13[th] June, 1997 had conducted the inspection of thepremises of Vidya Parshad Tiwari, Depot holder, Rajiv Nagar, Faridabad.The appellant had received 6 quintals of levy sugar from the wholesalegodown of CONFED, Faridabad in the month of May 1997 for distributionto the ration-card holders. After inspection of the registers, it came to thelight that the Depot holder had misappropriated 4 quintals 42 kilogramsand 50 grams of sugar and there were blank entries in the register, whichwere allegedly signed by the consumers. At the time of inspection, therewas no stock in the ration Depot. Furthermore, in the month of May 1997,the Depot holder lifted 2860 liters of kerosene for distribution. The Depotholder had not made any entry regarding the quantity of kerosenedistributed to the ration-card holders. According to the register, the Depotholder had shown distribution of kerosene to 265 ration-card holders. If a

maximum of 7 liters of kerosene per ration-card holder is taken intoconsideration, then also the Depot holder could not distribute more than1855 liters of kerosene. In this manner, the Depot holder hadmisappropriated 1005 liters of kerosene. In the month of June 1997, theDepot holder had lifted 2860 liters of kerosene. No entry was shown in thesale register regarding quantity of the kerosene received and itsdistribution to the ration-card holders. The Depot holder had shown thedistribution of kerosene to 280 ration-card holders. If a maximum of 7 litersof kerosene per ration-card holder is taken into consideration, then thetotal distribution will come to 1960 liters. In this manner the Depot holderhad misappropriated 900 liters of kerosene.

These violations gave rise to the presumption that the goodsmeant for distribution through Public Distribution System were sold at ahigher price in the open market. For these alleged irregularities andviolation of the Quality Order, Special Judge, Faridabad served notice ofaccusation upon the appellant on 12[th] January, 1998. The appellantpleaded not guilty and claimed trial.

J.B. Gondia, District Food and Supplies Controller, Faridabadappeared as PW-1. He reiterated as to what was stated in the complaintEx.PA, contents of which have been noticed above. In cross examination,this witness stated that no ration-card holder came with any grievance atthe spot against the accused. However, the following suggestion was putto this witness:

“It is wrong to suggest that the accused was ill in thosedays and in his absence kerosene and sugar were distributedto the card holders by his younger brother who might not havebeen able to maintain the record properly. I did not verify fromthe card holders whose names were entered in the registersthat he or she had actually not received kerosene or sugar. It is wrong to suggest that the accused has been falselyimplicated in this case.”

A perusal of the above suggestion reveals that the accusedwas conscious of not maintaining the record.

Rishi Pal ASI PW-2 had arrested the appellant on 16[th] July,

1997.

Rurra Ram ASI PW-3 was entrusted with the investigation on14[th] June, 1997. He had recorded the statements of the witnesses and hadalso prepared the rough site plan Ex.PB.

Prosecution has placed on record the Quality Order asEx.PC. Mr. Harbhagwan Singh, Senior Advocate appearing for theappellant, has extensively referred to the Quality Order Ex.PC. This orderdefines a Dealer as under:

“2.(b) ‘Dealer’ means a person engaged in the businessof sale or storage for sale of any article, whether suchbusiness is carried on in retail or in wholesale, and include thedistributing agent of the selling agent of such person;”

Clause 3 of the Quality Order reads as under:

“3.The Government may, by notification, in theofficial Gazette, in respect of any article; (a)the maximum quantity which may, at anyone time, be possessed by a dealer or aproducer;one time, be possessed by a dealer or aproducer; (b)the maximum quantity which may, at anyone time, be possessed by any consumer; one time, be possessed by any consumer;

(c) the maximum quantity which may, in anyone transaction be sold to any person by adealer or a producer;one transaction be sold to any person by adealer or a producer; (d)the quantities fixed in respect of any articleunder this clause may be different indifferent localities;under this clause may be different indifferent localities; Provided that no stock limit shall be fixed inrespect of producers regarding sugar, khandsari, gurand shakkar.”

It will also be apposite here to reproduce Clause 9 of theQuality Order:

“9.(1) The physical stock balances of various articles ina fair price shop, authorized and approved by the Governmentor by any officer authorized by it in this behalf, shall conformto the book balance as per account books maintained by him. (2)All purchases, sales and production made will becorrectly accounted for in the account books maintained andshall conform to the actual transaction made.”

It is contended before me that the Government has issued nonotification under sub-clause 1 of Clause 6. It is further submitted that interms of Clause 3 also, no notification was issued. It has been urgedbefore me that until under Clauses 6 and 9, the State Government hadprescribed maximum quantity of any article which may be sold to anyconsumer or group of consumers, it cannot be held that there was anymisappropriation of kerosene or sugar by the appellant.

I have given my thoughtful consideration to the submissionsmade before me. The prosecution may have failed to prove on record thesubsequent notification which prescribes maximum quantity of an articlewhich can be issued to a card holder. It is evident that the prevailingpractice demands that sale and stock registers ought to have beentruthfully filled by the appellant. The appellant is also conscious of this fact.Therefore, a suggestion was given that due to sickness, the appellant maynot have filled up the registers and the Depot was managed by his brotherRam Parkash Tiwari. The statement of the accused under Section 313

Cr.P.C. was recorded and all incriminating circumstances were put to him.He denied the same and stated as under:

“I am innocent. Entries in the registers Ex.P-1 to Ex.P-4are in the handwriting of my brother Ram Parkash Tiwari, whocommitted some mistakes.”

Furthermore, Ram Parkash Tiwari was examined as DW-1,who in examination in chief stated as under:

“Vidya Parshad accused is my brother. On 11[th] of April,1997 he had gone to his native village as our mother was ill atthat time. He returned around 15[th] or 16[th] of June, 1997. In hisabsence I had looked after the running of his ration depot. Ihad distributed various articles to the consumers againstration cards. I could not maintain appropriate entries in theaccount books because of rush and my lack of experience.”

Thus, it is a case of the accused that the requisite registerswere not maintained and they had not depicted the quota received, thesales effected and the stocks available. Consequently, there was aviolation of Clause 9 of the Quality Order, which specifically provides thatphysical stock balance of various articles in a fair-price-shop shouldconform to the book balance as per the account books maintained by theDealer.

Having held that the appellant had not maintained theregisters in consonance with the procedure prescribed, it is difficult for thisCourt to assume that the stock not available was sold in the open market.Thus, this Court at the most can say that the appellant was remiss in hisduty to maintain the necessary registers and account books. The offenceunder Section 7 of the Act is punishable for a term which should not beless than three months but which may extend upto seven years.Furthermore, all offences under the Act are to be tried in a summary manner under Section 12-A of the Act and the maximum sentence which aCourt can award for a summary trial is two years.

The inspection, in the present case, was carried in the monthof June 1997. The appellant is in corridors of the Courts for the last about13 years and he has suffered mental pain and agony of a protracted trial.Since this Court has already held that the appellant had failed to maintainthe requisite registers and the account books, it would be in the interest ofjustice in case sentence of the appellant is reduced from one year to threemonths rigorous imprisonment.

With the aforesaid modification in sentence, present appeal is disposed of.

March 23, 2010rps

[KANWALJIT SINGH AHLUWALIA]JUDGE