CR.A/109/1992 of STATE OF GUJARAT Vs HARISH AMRATLAL NIRMAL on 22 December 2000

1. Whether Reporters of Local Papers may be allowed : NO

to see the judgements?

2. To be referred to the Reporter or not? : NO

3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- STATE OF GUJARATVersus HARISH AMRATLAL NIRMAL

-------------------------------------------------------------- Appearance:

MR ND GOHIL,PUBLIC PROSECUTOR for Appellant.

MR AS PANDYA for Respondent No. 1

-------------------------------------------------------------- CORAM : MR.JUSTICE D.A.MEHTA

Date of decision:22/12/2000

CAV JUDGEMENT

1. This is an appeal filed by the State against the judgment and order dated 28.10.1991 passed by the Special Judge, Court No.4, Ahmedabad in Special Criminal Case No.56 of 1990. The case of the prosecution is that the accused - respondent contravened clause 3(g) of Notification dated 7.3.1988 bearing No.CER/(18)/88-CLB issued by the Textile Commissioner under clause 17 of the Textiles (Control) Order 1986 as provided in Section 3 of the Essential Commodities Act, and thus committed offence punishable under section 7 of the Act.

2. The respondent is the sole proprietor of M/s.

Jay Folding Works which is carrying on business of processing by way of grading, cutting, stamping and packing of finished cloth on job work basis received from different merchants and traders. Vide the aforesaid clause 3(g) of notification a processor as the accused-respondent is required to obtain declaration in Form 'A' from owners of goods delivered for processing and enter such goods in Register in Form 'B' on the day of the receipt of goods. The case of the prosecution is that one Mr.N.R.Chandrashekarappa (complainant) in the present proceedings was the Technical Investigator of the office of the Regional Textile Commissioner, Ahmedabad and in the course of his duty he visited M/s.Jay Folding Works on 29.09.1989. Mr.R.V.Pancholi, another Technical Investigator of the same office and Enforcement Inspectors Mr.B.M.Bhatia and Mr.S.D.Brahmbhatt accompanied the complainant. It is the say of the prosecution that at the time of the visit of the above officers, proprietor Shri Harishbhai viz. the accused respondent was present, and the complainant inquired from him whether they were maintaining. Form no.'A' and maintaining register in Form no.'B' as required under the notification. It is further the case of the prosecution that the accused replied that as he was not receiving Form 'A' from the merchants he was not making any entry in the register Form 'B'. According to the visiting party on the day and at the time of visit of M/s.Jay Folding Works cloth of two parties, P.Nikhilkumar & Co. and M/s.Darshan Textiles was lying in the premises and the said cloth was seized. Thereupon a panchnama was drawn in presence of two panchas and the accused also signed the panchnama and copy whereof was given to the accused. Mr.Bhatia, the Enforcement Inspector wrote a seizure memo and the original seizure memo was given to the accused while the complainant prepared an inspection report, a copy of which was also given to the accused. On 04.12.1989 the complainant filed a complaint in the Kagdapith Police Station and the police after making due inquiries and investigation submitted the chargesheet on 28.03.1990.

3. At the time of recording the plea of the accused he pleaded not guilty to the charge framed against him

and claimed that he be tried. Accordingly, the prosecution evidence was recorded and thereafter further statement of the accused was recorded. In his further statement it is the say of the accused - respondent that when the officers of the office of the Regional Textile Commissioner visited M/s.Jay Folding Works he was not present and that he was subsequently called and asked to sign the papers which were already prepared; that he had never been asked about the Forms 'A' & 'B'. It was also the say of the accused that he had told the complainant that he was maintaining register and G.P.-1 Form but the visiting officers did not bother to see and check G.P.-1 Form and the register. It was further stated by the accused that no cloth was seized in his presence and that he does not know how to read or write English language and he was not readover document of seizure memo but his signature was obtained thereon. In the backdrop of these facts and circumstances the Trial Court has framed the following three issues and recorded respective findings against each of the issues as under :

1 Is it proved by the proseuction��In the beyond reasonable doubt that the��Negative accused committed breach of the cl.3(g) of notification by not maintaining forms 'A' and 'B'? 2 What offence/s,if any,the��No accused has committed ?���offence �����is ������proved.

3 What order ?����As per

������final

������order.

4. The learned Public Prosecutor Shri Gohil reiterated the contentions that were raised by the prosecution before the Trial Court and stated that the acquittal of the accused - respondent requires to be upset. However, for the reasons that follow I am not inclined to disturb the order of acquittal and I am entirely in agreement of the the judgment of the Trial Court.

5. It is pertinent to note that the complainant has admitted in his deposition that he does not know Gujarati language and that the panchnama under exhibit 18 was not explained to the panchas in Gujarati; however, it is the say of the complainant that the panchnama was explained to the panchas in Hindi language. The complainant has also admitted in his deposition in cross that the accused had maintained G.P.-1 Form and that all the relevant information necessary for the purposes of the notification was available in the said G.P.-1 Form. Mr.Pradip Dodia, one of the panchas was examined by the prosecution under exhibit 17 wherein he has categorically stated that he is working in the adjoining office and on the day of the visit by the officers of the Regional Textile Commissioner Office he was called and shown document on which there was something written and that his signature was obtained on that paper and that he had not been readover contents in the said document. Though he identified his signature in the panchnama he deposed that nothing was seized in his presence. Similarly another panch viz. Dharmendra Amrutlal deposed that he was working as a labourer in M/s.Jay Folding Works and when the above officers had come for inspection his signature was obtained on a paper which was written in English but he did not know the contents of the said paper because the writing was in English and he did not know English language. Though this witness also identified his signature in the panchnama he deposed that no cloth was seized in his presence.

6. Thus, the prosecution case has not been supported by either of the panchas and the contents of the panchnama remained unproved. Both the panchas have further categorically deposed that their signatures were obtained in prepared panchnama which was written in English language and as can be verified from the record admittedly panchnama at exhibit 18 is in English language. Taking into consideration that they have categorically stated on oath that they were not readover or explained the contents of panchnama and that the complainant did not know Gujarati language the prosecution has not been able to establish the seizure of cloth. In so far as the say of the complainant that panchnama was explained to the panchas in Hindi nothing has been brought on record by way of examination or cross of the panchas that they were so explained the contents of panchnama in Hindi. The prosecution has not led any other evidence to show and prove that the cloth which was seized from the premises of M/s.Jay Folding Works was sent for processing by other traders. The complainant and the visiting officers from the office of the Regional Textile Commissioner did not make any inquiry at the premises of the two parties whose cloth is said to have been seized and those parties would have been the best persons to disclose whether the cloth which was seized was sent to the accused for processing. Therefore, the Trial Court has rightly come to the conclusion that as the contents of panchnama are not proved any cloth was in fact seized, and assuming for sake of argument any seizure of cloth the prosecution has not been able to prove that cloth which was seized from the premises of M/s.Jay Folding Works was meant for processing. The oral evidence of the complainant does not get corroboration either from any independent witness or any other evidence on record. The learned Public Prosecutor at this juncture submitted that the complainant was the officer of the Government run Corporation and hence he could not be said to have any bias against the accused. Even accepting this part of the submission of the prosecution, the case of the prosecution does not go any further because the prosecution has not examined any of the other three persons who are part of the visiting party from the office of the Regional Textile Commissioner. Therefore, as rightly held by the Trial Court it is most unsafe to convict the accused on the sole testimony of the complainant which is not corroborated by any other independent witness or evidence.

7. To summarise, the prosecution has failed to prove seizure of cloth and even if it could be accepted for the sake of argument that the cloth was seized from the premises of M/s. Jay Folding Works, the prosecution has further failed to prove that the said cloth was sent for processing. Thus, in effect the prosecution has failed to prove that there was any contravention of clause 3(g) of the notification dated 07.03.1988. In view of these circumstances, this appeal fails and is hereby dismissed. Records and Proceedings be returned.

����Sd/-

����(D.A.Mehta, J)

m.m.bhatt