JUDGMENT
P.B. Gaikwad, J.
1. Original accused Basavraj Kalburgi filed present appeal challenging the order passed by Second Additional Sessions Judge, Kolhapur dated 5th March, 1993 in Special Case No. 3 of 1982.
2. Facts in nutshell leading to the present appeal are that Executive Engineer, PWD Department, Ratnagiri had placed an order for purchasing cement with Bagalkot Cement Factory. The order was for 200 tonnes out of which 150 tonnes is to be supplied at the Office of B&C Department at Ratnagiri while 50 tonnes is to be transported within the same District at Laanja. It is further alleged that on 6th June, 1991 Truck Registration No. MTL-711 was seized by police, Police Station Ichalkarani along with cement load containing near about 240 bags of cement. Driver, Cleaner and the present appellant were in the said truck at the relevant time. Initially a Police Constable attached to traffic has submitted a report to Police Authorities, Ichalkarani Police Station and the P.I. attached to police station Ichalkarani after making necessary enquiry noticed that the said cement being transported in breach of Cement Control Order and thereby committed an offence under Section 3 r.w. Section 7 of the Essential Commodities Act by those three persons who were found in the said truck at the relevant time including cleaner, driver and the present appellant. P.I., Police Station Ichalkarani thereafter accordingly made a report initially against these persons including the owner of truck, cleaner, driver present appellant and two others. However, while submitting charge-sheet the present appellant, driver and cleaner were only shown as accused in the above said crime. During the pendency of Criminal Case the driver of truck found dead and accordingly the proceedings being abated against him. Cleaner was absconding and therefore Special Judge i.e. Additional Sessions Judge, Kolhapur passed necessary order under Section 317 of Cr.P.C. and the case of present appellant is accordingly split up. Special Judge accordingly recorded plea of the present appellant for offence under Section 3 r.w. Section 7 of Essential Commodities Act as the accused on 6th June, 1981 along with other accused found in possession of 240 bags of cement approximately to the extent of 12 tonnes in truck registration No. MTL-711 without any pass and permit and thereby committed breach of the Maharashtra Cement (Licensing and Control) Orders 1973 offence under Section 3 r.w. Section 7 of the Essential Commodities Act.
3. The prosecution to connect the accused with the above said crime examined near about 12 witnesses. P.W.1 Vijay Sakharam Kalap, a Peon working at Municipal Council, Ratnagiri and at the relevant time he was working at Shivaji Nagar Jakat Naka in Octroi Section. He produced a Register maintained at Jakatnaka and according to him a Truck bearing Registration No. MTL-711 had been to the said Naka on 29th May, 1981. Through his evidence the entry taken in the Register was proved as cement was transported to Ratnagiri, the Extract Exhibit-51 is got proved through his evidence of this witness. Evidence is at Exhibit-50 which shows that by Truck bearing Registration No. MTL-711 a cement was transported to Ratnagiri i.e. on Friday, 29th May, 1981. Then P.W. 2 Shivaji Laxman Potdar, Chief Officer, Municipal Council, Malkapur and from his evidence it is brought on record that the Truck MTL-711 had been to Malkapur on 27th May, 1981. An Escort Receipt being brought on record through this witness at Exh-54, while P.W.3 Janardhan Malhari Pathade, Nakedar in Octroi Section at Municipal Council Sangli. Through his evidence the Escort Receipt Exh-56 is brought on record so as to show that on 27th May, 1981 a truck No. MTL-711 has passed through Municipal Octroi Naka, Sangli. P.W.4 is one Vijay Dhondiram Sutar, through his evidence Escort Receipt Exh-58 is brought on record as this witness was working as Nakedar on 4th June, 1981 at Sangli and according to him a truck No. MTL-711 has proceeded to Ratnagiri from Miraj. P.W.5 is one Babu. Annappa Chougule, a Clerk working in Octroi Section, Municipal Council, Ichalkarani and receipts Exh-60 and receipt Exh-61 is for payment of Rs. 300/-. The truck which was loaded with cement i.e. 240 bags proceeded towards Ratnagiri from Ichalkarani. Then P.W. 6 is one Manohar Parasu Jadhav, serving in Municipal Council, Octroi Section, Jaysingpur, by this witness a document Exhd-63 is got proved and according to the truck bearing No. MTL-711 has also passed from Jaysingpur. While P.W.7 is one Harischandra Vithoba Shinde, a person who is serving in North PWD Division, Ratnagiri and according to him out of 200 tonnes cement in respect of which order was placed at Bagalkot Cement Factory the Department has received only 143 tonnes cement i.e. 107 tonnes at Ratnagiri and 36 tonnes cement at Laanja. Through the evidence of this witness document Exh-67 is got proved which shows that by truck No. MTL-711 cement was transported from Bagalkot Cement Factory to Ratnagiri only to the extent of 10 tonnes i.e. loaded at Bagalkot on 28th May, 1981 and unloaded at Ratnagiri on 29th May, 1981. P.W. 8 is one Laxman Bhau Jadhav, a person serving in Municipal Council, Miraj Nagar Parishad while P.W.9 is Sonlal Gulabchand Badjatya, General Manager, Konoriya Industries, Bagalkot Cement Factory and according to him the cement is transported to the extent of 155 tonnes to the B&C Department at Ratnagiri. So far as truck No. MTL-711 is concerned the said truck was loaded twice from Bagalkot (1) on 26th May, 1981 i.e. 12 tonnes load, i.e. 240 bags of cement and again it was loaded with cement i.e. 10 tonnes load on 28th May, 1981. Extract of the cement transported by Bagalkot Factory is also got proved by this witness and the said extract or Delivery Note is proved at Exh-81. P.W. 10 is one Madhav Asingirao Murnad, a Sales Incharge at Bagalkot Cement Factory and the extract in respect of transporting cement is brought on record , Exh-33. Then P.W.11 is one Shripatrao Balwantrao Mane, P.I. who lodged report and the basis of which Crime is registered for the offence punishable under Section 3 and 7v of Essential Commodities Act on 6th June, 1981. P.W.12 is one Balasaheb Virupaksh Heddur, another P.I. attached to Police Station, Ichalkarani who completed the investigation and submitted charge-sheet.
4. On close scrutiny of evidence the Additional Sessions Judge concluded that the present accused/appellant was found in the said truck at the relevant time and therefore according to him that cement was loaded in the said truck twice i.e. one on 26th May, 1981, however, the said load did not reach to Ratnagiri. The said truck was again loaded on 28th May, 1981 however, the second load reached at Ratnagiri and therefore, the Court concluded that a misappropriation is committed in respect of the same i.e. 240 bags i.e. 122 tonnes load, loaded in the said truck on 26th May, 1981 even the Additional Sessions Judge further concluded that the accused committed breach in respect of Cement Control Order as the person found in the truck was not having any permit or licence to transport the cement of 240 bags which were found within the jurisdiction of Police Station, Ichalkarani on 6th June, 1981, accordingly he convicted the present appellant for the offence under Section 3 r.w. Section 7 of Essential Commodities Act r.w. Cement Control Order, further directed the accused to suffer R.I. for 3 months and to pay fine of Rs. 500/- in default to suffer S.I. for one month.
5. It is submitted by Shri Mundargi Advocate that so far as present appellant is concerned practically there is no material to connect him as he is not the person who transported the cement from Bagalkot Cement Factory, he is not the owner of the said truck, he is not the owner of the cement which is being transported in the said truck and he has no concern with the PWD Department at Ratnagiri as he is resident of village Ichalkarani and he was one of the occupant in the said truck at the relevant time at the most a gratuitous passenger. Thus in short according to him the Court below committed error in convicting the present appellant for the offence under Section 3 and 7 as there is no obligation on him to obtain pass or permit in respect of said cement as the same does not belong to him. Another aspect, according to him neither complaint filed by P.I. Police Station, Ichalkarani nor by the Bagalkot Cement Factory, names of these persons have been mentioned as accused in the said crime including the owner of the truck. However, one does not know as to why the owner of the truck is not prosecuted. He therefore, submits that so far as present appellant is concerned he deserves to acquittal as against this Mr. Adsule, A.P.P. submits that the evidence on record is sufficient so as to convict the accused for the offence under Section 3 and 7 of the Essential Commodities Act. The order passed by the Court below is proper and justified and therefore, according to him the appeal deserves to be dismissed.
6. Considering the submissions and analysing the evidence on record one thing is proved by the prosecution that out of 200 tonnes the Bagalkot Cement factory has transported 155 tonnes cement as per the requisition of B&C Department, Ratnagiri, however, the cement quota to the extent of 143 tonnes is only received to the office of PWD, Department, Ratnagiri and this is apparently clear from the evidence of a person examined on behalf of prosecution from the PWD/B&C Department, Sales Manager from Bagalkot Cement Factory and also from the Document Exhibit-6.7 and 83. The another aspect which is also sufficiently proved that this truck registration No. MTL-711 was loaded twice at Bagalkot once on 26th May, 1981 however, the said truck load of 12 tonnes did not reached to the B&C/PWD Department till 6th June, 1981 when the crime was registered and this 12 tonnes cement quota i.e. 240 bags of cement was found in the said truck on 6th June, 1981 when the truck was attached or apprehended by the Police within the jurisdiction of Police Station, Ichalkarani on the basis of report given by one Police Constable and the P.I. Mane attached to Police Station, Ichalkarani after making essential enquiries filed a report against six persons including the present appellant as it is alleged that he was one of the occupant of the said truck at the relevant time so am to connect the present appellant though prosecution has examined 12 witnesses, there is no whisper as to how the present accused is connected with the said crime even if it is held to be true as he was one of the passenger only, because as persons at the relevant time by itself does not connect him with the said crime as from the evidence and record he has no concern of what so ever with the truck, he was not driver, nor cleaner, he is not from the B&C/PWD Department, Ratnagiri nor he has any link with Bagalkot Cement Factory and in view of this position when there is no material as to haw he being involved in the said crime, to my mind the Additional Sessions Judge has definitely committed an error in convicting the present appellant only because he was present at the relevant time in the said truck. As I already referred above.
7. In the complaint near about six accused persons are shown, however while filing charge-sheet one does not know as to how the names of owner of the truck is not included in the charge-sheet. So far as present appellant is concerned to my mind the accused/appellant deserves to be acquitted as the offence under Section 3 and 7 read with Cement Control Order is in respect of breach as the driver of the truck at the relevant time was not found with pass or permit. In view of this position I find that the order of conviction and sentence passed by Additional Sessions Judge, is to be set aside. In the result appeal is allowed. The order of conviction of sentence passed by Additional Sessions Judge in Special Case No. 3 of 1982 convicting the appellant for offence punishable under Section 3 and 7 of Essential Commodities Act r.w. Cement Control Order is set aside.
8. Accused/appellant is acquitted, fine amount if paid be refunded to the appellant.