JUDGMENT
S. Padmanabhan, J.
1. Wrong approach to the relevant legal provisions alone is responsible for the convictions and sentences, which resulted in these two criminal appeals, one by accused 1 and 2 and the other by the third accused.
2. On 19-10-1987, at about 11 p.m., P.W. 8 Sub-Inspector at first searched Shop No. C11 of Tirur Municipality admittedly possessed by accused 1 and 2 as their business premise. Two tins of palm oil were found. A neighbouring room No. A14 in another building claimed by accused 1 and 2 as their godown was also searched as opened by them. 18 tins of palm oil were also found and seized. They were charge-sheeted and tried for contravention of Clause 3 of the Kerala Edible Oil Seeds and Edible Oils, Vanaspathi and Baby Food Dealers’ Licensing Order, 1975 (for short ‘the order’). P.Ws. 1 to 6 were examined. On the evidence of P.Ws. 5 and 6, third accused was also impleaded under Section 319(1) of the Code of Criminal Procedure. All the three were convicted and sentenced to simple imprisonment for 18 months and to pay a fine of Rs. 5,000/- each. Third accused is none other than P.W. 6.
3. The Special Judge seems to go under the impression that Section 319(1) of the Code is intended to book a prosecution witness, who turns hostile without any evidence regarding his involvement in the offence. Both the shop rooms are included in the shopping complex belonging to the Municipality. Accused 1 and 2 are admittedly the lessees of Room No. C11 and they are licensed dealers under the order. That is the prosecution case also. Prosecution case and its evidence is that Shop No. C11 is the business premises of accused 1 and 2 and Shop No. A-14 is their godown taken on rent from P.W. 6 (third accused). That is why accused 1 and 2 alone were charge-sheeted and the third accused made a witness. Even going by the prosecution case and its evidence, accused 1 and 2 are licensed dealers to whom the prohibition under Clause 3 of the order is not applicable. They were entitled to possess palm oil.
4. The investigating officer (P.W. 8) seized three licenses under the order expiring only by March 1989 from the business premises of accused 1 and 2. After taking photostat copies, proved by him as Exts. P10, P11 and P12, to originals were returned to them as they were necessary for daily use. In the first place, after having found that accused 1 and 2 are licensed dealers, he ought to have referred the case instead of charge-sheeting them because contravention of Clause 3 is not at all involved. Unfortunately, when the prosecutor attempted to prove Exts. P10 to P12 through P. W. 8, the defence counsel, without realising the advantage to his clients by the proof of these documents, objected on the ground that they are only unauthorised copies. The Special Judge overruled the objection by a detailed order in the deposition itself and marked the documents. At the same time, while disposing of the case, he refused to accept Exts. P10, P11 and P12 for the sin committed by the defence counsel in objecting to the marking. He proceeded to convict them stating that since the original licenses were not produced by the accused and since the marking of copies was objected he is proceeding without relying on Exts. P10 to P12.
5. The Special Judge did not realise the envious position of an accused in a criminal case. The entire burden to prove its case is on the prosecution. The burden of the accused, if any, unlike that of the prosecution is only to establish preponderance of probabilities as in a civil case. In the discharge of that burden, even without adducing any independent evidence, he can rely on the prosecution evidence itself. The benefit of doubt arising from the prosecution evidence itself may be sufficient to discharge that burden. Prosecution had no consistent case whether what is seized is palm oil or palmolein while admitting that both are entirely different. Though sample was taken and sent for analysis, no report was produced and proved. The Special Judge may be correct when he said that proof of identity is immaterial because both are prohibited items. But burden is there only to prove disputed facts. When the prosecution case itself is that accused are licensed dealers and when it attempted or even proved that fact by production of Exts. P10 to P12, it was too much on the part of the Special Judge to be vindictive for punishing them on the ground that licenses were not proved. Atleast benefit of doubt ought to have been given to them even if the Special Judge was not prepared to accept them as licensed dealers. This wrong approach resulted in conviction and sentence necessitating these two appeals in a case which ought to have ended in a refer report. Cognizance under Section 11 of the Essential Commodities Act also is only on facts constituting an offence. At that stage itself, the Special Judge ought to have refused to take cognizance on the ground that the materials produced by P.W. 8 along with the final report establish that no offence is made out. If so, the unnecessary trial and appeal and the consequent harassment could have been avoided.
6. Now let us come to the third accused, who is the appellant in Criminal Appeal No. 64 of 1989. His brother deceased Moideen, husband of P.W. 5, was the lessee of Shop No. A14 from the Municipality. Their evidence and that of the Municipal Commissioner, examined as P.W. 4, is only that after Moideen died, the lease-hold was transferred to P.W. 6 (third accused). That was after P.W. 8 took action. Even conceding that P.W. 6 became a lessee of Shop No. A14 even before P.W. 8 took action, the prosecution case and its evidence was that accused 1 and 2 were the sub-lessees under him and the article was stored by them in the room which was used by them as their godown. There is no case and no evidence that the palm oil or palmolien or any portion of it was possessed by the third accused. He was made an accused by way of penalisation simply because he turned hostile and denied the sub-lease to accused 1 and 2. Simply because of such a statement, which might have been given to help accused 1 and 2, the Special Judge was not at all justified in making P.W. 6 an accused under Section 319(1). His evidence that he is in possession of the room as lessee cannot, at any rate, be taken as proof, without anything else, of the fact that it was he who possessed the palm oil. The evidence of P.W. 8 is that the key was with accused 1 and 2 and they opened it as if it is their godown and accordingly the seizure was made. There was every reason to think that possession was by them alone and not by P.W. 6.
7. The power under Section 319(1) is an extraordinary power and it could be exercised only when it appears from the evidence during inquiry or trial that any person, not being an accused, has committed any offence. There was no evidence that P.W. 6 committed any offence. At the maximum the evidence is that he was the lessee of the shop. That is not, an offence. It is also necessary that the offence must be one for which he could be tried together with accused 1 and 2. There is ho case or evidence that the three are joint offenders. Even if P.W. 6 is taken to have violated Clause 3 of the order and possessed palm oil in his leasehold premises, it is an offence unconnected with accused 1 and 2 and it is in a separate premises also. A separate prosecution alone could have been had for that. Resort to Section 319(1) is not, at any rate, justified.
8. Not only for resorting to Section 319(1), but for conviction of the third accused also the Special Judge relied on his evidence as P.W. 6. Even for resort to Section 3 19(1), it ought not have been used because of the proviso to Section 1.32 of the Evidence Act. Further it is against all accepted norms of a fair trial. Placing a man on trial on his own evidence is contrary to the traditions of justice in Criminal Courts. Further the evidence used in the inquiry or trial preceding action under Section 319(1) and not tendered in the de novo trial cannot be used at all for conviction. That is evidence tendered in his absence as an accused and is a violation of Section 273 of the Code of Criminal Procedure. The provisions of Section 319(4) for de novo trial and rehearing of witnesses were also violated. The witnesses were only recalled and further examined in continuation of the depositions already recorded. These earlier depositions were also read as evidence. Even then there was no atom of evidence that the third accused is in any way responsible for violation of Clause 3. Added to ail these what is awarded is not the minimum sentence, but imprisonment for 18 months and fine of Rs. 5,000/-. All these happened because the licenses once accepted by the Court were subsequently illegally rejected and P.W. 6 penalised for turning hostile without any legal evidence.
Both the criminal appeals are allowed. Convictions and sentences are set aside and appellants are acquitted. Their bail bonds are cancelled.