JUDGMENT
T.P.S. Mann, J.
1. The appellant, along with Makhan Singh, was tried by Special Judge, Barnala for offence under Section 7 of the Essential Commodities Act (hereinafter referred to as ‘the Act’) on the ground that they violated Rule 3 of the Punjab Wheat Dealers Licencing Order, 1978 issued under Section 3 of the Act.
2. Vide judgment and order dated 7-4-1994, the trial Court acquitted Makhan Singh of the charge against him and convicted the appellant under Section 7 of the Act and sentenced him to undergo RI for one year and to pay a fine of Rs. 1,000/-, or in default of payment of fine to undergo further RI for three months.
3. On 22-11-1992, S.I. Ashutosh, SHO, Police Station Mehal Kalan, along with ASI Bhag Singh and ASI Mohinder Singh, was present at the local bus-stand in Mehal Kalan. He received a secret information that one truck bearing No. DL-1G-3556 driven by Makhan Singh accused was coming from the side of village Nihaluwal and the said truck was loaded with bags containing wheat. He was accompanied by a businessman, who had purchased wheat from there and taking the same to the other place for sale without any G.R. issued in respect of the said wheat bags SI Ashutosh wrote a ruqa Ex. PD and sent the same to the Police Station, on the basis of which formal FIR EX. PD/1 was registered.
4. A naka was held thereafter by SI Ashutosh on the T-point of village Nihaluwal. Afore mentioned truck came from the side of Nihaluwal and was stopped. Makhan Singh accused was found driving the truck, whereas Baldev Singh was sitting by his side. When the truck came to a halt, Baldev Singh managed to run away. The truck was searched and found to contain 90 bags of wheat. They were taken into possession vide memo Ex. PE. Registration Certificate of the truck and the driving licence of Makhan Singh were taken into possession vide memo Ex. PF. Makhan Singh accused was arrested. A week later, i.e. on 29-11-1992, Baldev Singh accused was also arrested.
5. After the completion of the investigation, the challan was presented in the Court. Charge under Section 7 of the Act was framed against both the accused to which they pleaded not guilty and claimed trial.
6. In support of its case, the prosecution examined Karam Singh P.W. 1. According to the prosecution, Baldev Singh accused had made extra-judicial confession before him and accordingly, he produced him be fore the police. However, Karam Singh did not support the case of the prosecution and was declared hostile. He was cross-exam ined by Additional Public Prosecutor, but no material could be elicited from him so as to connect the accused with the crime. Sarabjit Singh P.W. 2 did not support the case of the prosecution regarding the purchase of wheat from him by Baldev Singh accused. He was similarly declared hostile. Balwinder Singh, who was owner of the truck in question, appeared as P.W. 3. In his cross-examina tion he stated about Baldev Singh accused came to him and hired his truck for taking the wheat to Raikot. However, during his cross-examination, he stated that Baldev Singh had told him that it was the wheat raised by him of his own cultivation, which he wanted to take to Raikot for sale. At this, Balwinder Singh P.W. 3 was also declared hostile. He was confronted with portion ‘A’ to ‘A’ of Ex. PC made before the police that Baldev Singh accused had told him that he wanted to transport the wheat in the truck which he had purchased for taking it to Delhi. However, he denied making such a statement.
7. SI Ashutosh, who was Investigating Officer of the case, appeared as P.W. 4 and deposed about the steps taken by him from the time of receipt of secret information till the presentation of the challan.
8. Both the accused were thereafter examined. Baldev Singh accused stated that he was agriculturist by profession and the 90 bags of wheat recovered in this case belonged to him. Makhan Singh accused also made a similar statement about driving the truck in which Baldev Singh accused was also sitting with him and the police thereafter recovered 90 bags of the wheat. In view of the statements of the accused, learned Additional Public Prosecutor gave up all other prosecution witnesses as unnecessary and closed the prosecution case.
9. The prosecution case was then put to the accused when they were examined under Section 313, Cr.P.C. Baldev Singh acqused again reiterated that he was an agriculturist and the wheat belonged to him which he had produced from his land. The land was in the nante of his mother. He cultivated that land besides some other land on theka and batai. According to him, he was taking the wheat to the mandi situated in Mehal Kalan for sale. To the same effect was the explanation of Makhan Singh accused.
10. In defence the accused examined Amar Singh D.W. 1, who stated that he was a lambardar of village Kasba Bharal and knew Baldev Singh accused, who was an agriculturist and owing five killas of land. The said land was recorded to be the ownership of his mother. Besides, he also cultivated 5/6 killas of land, which he had taken from Rur Singh on batai. He denied that the accused did not cultivate any land. Rur Singh appeared as D.W. 2 and stated that his 10 killas of land was under the cultivation of Baldev Singh accused on batai. Besides Baldev Singh also cultivated five killas of land belonging to his mother.
11. After going through the evidence, the trial Court came to a conclusion that Baldev Singh accused had not been able to prove that the wheat recovered was produced by him. Accordingly, he was treated as a dealer and as he had not obtained any licence under Rule 3 of the Order, he violated the said provision, making him liable under Section 7 of the Act. Accordingly, he was convicted and sentenced. However, Makhan Singh accused was acquitted as he was not found to be privy to the crime. He was held to be a simple driver of the truck, who had been asked by Baldev Singh for transporting wheat to Raikot.
12. I have heard learned Counsel for the parties and gone through the evidence with their assistance.
13. The prosecution evidence against the appellant mainly consists of the testimonies of Balwinder Singh P.W. 3 and SI Ashutosh P.W. 4. The two other witnesses, namely, Karam Singh P.W. 1 and Sarabjit Singh P.W. 2, did not support the case of the prosecution. Even Balwinder Singh P.W. 3 in his examination-in-chief stated that the appellant came to him and wanted to hire his truck for transporting wheat to Raikot. On this, he allowed Makhan Singh accused to take the wheat of Baldev Singh accused in the truck to Raikot. When he was cross-examined, he admitted that baldev Singh accused had told him that it was the wheat raised by him by his own cultivation, which he wanted to take to Raikot for sale. At this stage, Balwinder Singh P.W. 3 was declared hostile. He was then cross-examined by Additional Public Prosecutor but he declined to toe the line of the prosecution that Baldev Singh was to transport wheat to Delhi after purchasing the same. Fact remains that Balwinder Singh P.W. 3 has not said anything that the appellant had purchased the wheat and was to transport the same in his truck to Delhi.
14. SI Ashutosh P.W. 4 admitted in his cross-examination that the appellant was an agriculturist. In spite of this he did not join any Patwari in the investigation of the case. Though, he denied that the wheat belonged to the appellant as his own agricultural pro duce, yet he stated that he did not know whether the appellant was taking the wheat to the mandi for sale. The statement of SI Ashutosh, when read as a whole, does not show that the appellant had purchased the wheat from someone else and was then taking the same for sale. In fact there is sufficient indication that the appellant himself was cultivating the land from which he produced wheat, which was thereafter to be sold in the mandi. When the appellant was questioned about the wheat, he did state that he was an agriculturist by profession and the 90 bags of wheat belonged to him. Similar stand was taken by him in his examination under Section 313, Cr.P.C.
15. Amar Singh D.W. 1, who is a lambardar of the village of the appellant, deposed that he knew the appellant, who was an agriculturist and owing live killas of land, which he had been cultivating. According to D.W. 1, the mother of the appellant was recorded as owner of the land. Besides cultivating the land, which was owned by his mother, the appellant also cultivated 5/6 killas of land belonging to Rur Singh on batai.
16. Rur Singh D.W. 2 stated that he owned 10 killas of land which was being cultivated by the appellant on batai. Besides his land, the appellant also cultivated five killas of land belonging to his mother. Mere fact that there was no writing executed between Rur Singh and the appellant or that the girdawri of land was shown in his own name and not in the name of the appellant was no ground to held that the appellant did not cultivate the land of Rur Singh D.W. 2 on batai.
17. The accused also produced a copy of jambandi Ex. DA. As per the same, Manohar Singh father of the appellant had 1/4th share in land measuring 451 kanals 5 marlas. The fact that the appellant had two other brothers and all three of them, besides their father, were agriculturists, is no ground to hold that the appellant alone could not have taken the produce from his fields to the mandi for sale. It is, thus, clear that the appellant had sufficient land under his cultivating possession, from which he could have produced enough wheat, including 90 bags of wheat and the said wheat was to be thereafter taken to the mandi for sale. By no stretch of imagination, it can be said that the appellant was not an agriculturist but a trader. Under these circumstances, there was no requirement for the appellant to obtain any licence/permit as is necessary for a person, who is a trader under the relevant rule of the Order.
18. Upshot of the above discussion leads me to conclude that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently, the appeal is accepted. Conviction and sentence of the appellant is set aside and he is acquitted of the charge against him. Amount of fine, if already deposited by the appellant, shall be refunded to him.