JUDGMENT
T.K. Chandrashekhara Das, J.
1. The appellant impugned in this appeal, the judgment and order passed by the Special Judge (Essential Commodities Act), Thane dated 28th April, 1988. In the impugned Judgment, the appellant was found to be guilty under Section 5 and Section 23(1)(a) of the Petroleum Act and sentenced to simple imprisonment for one month and fine of Rs. 1,000/- and in default to suffer further S.I. for two months. He was also found to be guilty under Section 7(1)(a)(ii) under the Essential Commodities Act and sentenced to suffer R.I. for one year and to pay fine of Rs. 1,000/- and in default to further R.I. for three months. The substantive sentence are directed to run concurrently.
2. According to the prosecution, the appellant is the driver of tanker lorry No. MWN 1437 which belongs to M/s. R.G. Chandak and Company who are the authorised wholesale dealer in Kerosene. The appellant was employed by them.
3. On 29.1.1985 at 10.30 a.m. or 11.00 a.m. the appellant was entrusted with an indent form, a draft and Tahsildar’s certificate and he was sent to Vadala for taking delivery of 12000 Its of Kerosene. Accordingly the appellant had brought with him the above mentioned tanker at about 7.00 p.m. and after taking delivery of the kerosne, he again came to the office of accused No. 2 who is the partner of the aforesaid firm who directed the driver to go to Ahrnedngar to deliver the kerosene. It is alleged by the prosecution that on 30.01.1985 at 00.45 hrs Sawant. Dy S.P. Shahapur had left Thane in the police jeep. He was proceeding towards Shahapur. He was accompanied by driver constable Lingade and security Head constable, Raje. They were going by highway. When they reached the limit of Vahuli about 2.00 a.m. when they were passing by the petrol pump, they found a tanker lorry standing near the storage tank of the pump and that two persons were standing on the tanker. This gave rise to a suspicion in the mind of Dy. S.P. Bhal and he went to diesel pump. He found that tanker bearing No. MWN 1437 was standing near the storage tank and that accused Nos. 1 and 2 were present near the tanker. On enquiry they told that the tanker contained kerosene. The accused had however, no receipt or voucher regarding the said kerosene. Bhal further found that a pipe was connected to the valve of the tanker and it was left in the valve of the underground storage tank. The tanker had the four compartments. The kerosene in the tanker was passing through the pipe to the underground storage tank. There was a small leakage at the place where the pipe was fixed to the valve of the tanker. Through that leakage kerosene was leaking drop by drop and getting collected in a small tin which was kept under if. Bhal was thus, convinced that kerosene was being mixed in the diesel in the underground storage tank. He immediately sent person to the police station to bring sufficient number of policemen and two panchas. Accordingly the panchas were brought. Compartment Nos. 2 and 3 of the lorry found full of kerosne. However, the police officer has collected the samples from underground storage tank of the petrol pump and also kerosane from the compartment Nos. 2 and 3 of truck in two plastic cans, each sample was of 5 ltrs. before collecting the sample, the cans were washed with the kerosene. The samples taken from the underground tank and the tanker lorry were sent to Chemical Analyser and from the report of the Chemical Analyser, it was found that the samples taken from the underground tank of the petrol pump was adulterated with kerosene.
4. After following due procedure, the statements of the witnesses were recorded and charge sheet was fileld before the Court. After the trial, the appellant were convicted and sentenced in the manner mentioned above.
5. I heard learned Counsel for the appellant Shri Ketkar and learned A.P.P. Shri S.R. Shinde.
6. Mr. Ketkar, learned Counsel for the Appellants submits that the appellant driver of the tanker lorry has not been identified by the P.W. 2 before the Court, he also submits that the defence taken by the driver that he was taken custody by P.W. 2 when he was driving tanker lorry before the Hotal in the next day morning namely 30.1.1985 and therefore, he was innocent.
7. I have gone through the evidence led by prosecution in this case P.W. 3 L.N. Chandak was examined by the Court below. He deposed before the Court that the lorry was belonging to Firm R.G. Chandak and Co. and accused is employer of that company and that on the date the appellant was driving that petrol tanker bearing No. MWN 1437, This witness has clearly identified the appellant No. 2 before the Court. Therefore, it has been established beyond all reasonable doubts that the appellant was driving the lorry on that date and he is in charge of the kerosene which he had taken delivery from the depot I.O.C. The fact that the P.W. 2 Police Officer could not identify him after two years of the commission of offence cannot be taken as a ground for acquittal of the appellant. As I noted earlier, before the Court P.W. 3 employer of the company has identified and stated that he was entrusted with the kerosene in question along with tanker lorry on that date. Therefore, it is primary duty of the appellant to explain as to what happened to the contents of the tanker lorry. It is not his case that the kerosene taken delivery from the I.O.C. depot has been redelivered to the person to whom it was allotted. In the absence of such explanation, the defence put forward by the appellant in his statement cannot be treated as true. Therefore, the contention of Mr. Ketkar that the appellant has not been identified by the police officer cannot be made use of in the circumstance, in favour of the appellant. Even though the P.W. 1 the panch has turned hostile, also will not come to the rescue of appellant in this case. There is no evidence or suggestion that the Police Officer P.W. 2’s testimony before the Court should be disbelieved. In the absence of any mala fide or any other circumstances, the police officer’s version cannot be thrown out. No such circumstances has been brought out by the defence in this case to disbelieve the police officer. P.W. 2’s presence at the scene of occurrence is well explained and natural. Accordingly, I find that the conviction entered by the Court below against the appellant under Section 5 and 23(1)(a) of the Petroleum Act has to be confirmed. But the conviction entered by the Court below against the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act has to be set aside. As I stated earlier, only offence committed by the appellant is that he was in custody of the petroleum products and is not dealer nor the purchaser of the Essential Commodities. In order to bring the offence under the provision of the Essential Commodities Act, he must have been dealing with the petroleum product as seller or purchaser or agent for selling or purchasing. The trial Court has very rightly discussed this aspect and found that the appellant was neither a dealer nor agent of the dealer, he is only the custodian of the Essential Commodities. Therefore, the conviction entered by the Court below against the appellant under the provisions of Essential Commodities Act is found to be unsustainable.
8. In view of this the appellant has to be acquitted of the offence under Section 7(1)(a)(ii) of the Essential Commodities Act. Therefore, the only conviction that has to be remained is under Section 5 Sec 23(1) of the Petroleum Act. S.I. for 1 month and fine of Rs. 1000/- in default S.I. for 2 weeks which were ordered by the Court below. I find that it is not proper after the long lapse of time, to sent after 13 years, the appellant to jail. Therefore, I modify the sentence to the extent that the appellant is liable to pay fine of Rs. 2000/- and in default to suffer S.I. for one month.
9. In the result the appeal is partly allowed and partly dismissed.
The appellant is acquitted of the offence punishable under Section 7(1)(A)(ii) of the Essential Commodities Act.
The conviction under Section 5 and 23(1)(a) of the Petroleum Act is confirmed. However, the imprisonment ordered by the Court below is substituted as under :
The appellant is directed to pay a fine of Rs. 2000/- within two months from the date of receipt of the Judgment and in default to suffer further S.I. for one month.
Rule disposed of accordingly in the above terms.