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CR.A/377/1999 2/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 377 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
====================================================
MATHURBHAI
JEKANBHAI BARIA & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
====================================================
Appearance :
MR
KB ANANDJIWALA for Appellant(s) : 1 - 2.
MR HL JANI APP for
Opponent(s) : 1,
====================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/04/2010
ORAL
JUDGMENT
Present
Appeal is directed against the judgment and order dated 01.04.1999
delivered by the Learned Special Judge, Panchmahals, Godhra in
Special Summary Case No.6 of 1999 recording the conviction of the
accused persons for the offence under Section 420 of the Indian
Penal Code and under Section 3 read with Section 12(A)(A) of the
Essential Commodities Act and imposing
sentence of RI for 18 months and fine of Rs.1,000/-, in default, to
undergo RI for 4 months each. The sentences were also ordered to run
concurrently.
The
facts of the case briefly summarized are as follows:
2.1 It
is the case of the prosecution that the appellants-original accused
were having fair price shop for the respective areas. They were also
to distribute the essential commodities under the Mid-day Meal to the
respective centres/schools. Therefore, the original accused no.1, who
was to distribute such Mid-day Meal centres for the village Kara,
Kanajiya and Fulpari, had supplied Longdal instead of Tuverdal and
thereby committed offence under the provisions of Indian Penal Code
as well as under the provisions of Essential Commodities Act.
Similarly, the original accused no.2, who was having fair price shop
at Jambughoda and was to distribute essential commodities in respect
of Mid-day Meal centre at Dhebar Faliya, Duma etc. had supplied
Longdal instead of Tuverdal and thereby committed offence as alleged.
It is also stated that under Section 44(A) of the Food Adulteration
Act, there was prohibition for sale of Longdal. The Deputy Mamlatdar
under the Mid-day Meal Scheme visited the centres and found these
irregularities, for which, he registered complaint being
C.R.No.24/1996 with Jambughoda Police Station for the alleged
offences under
Section 420 of the Indian Penal Code and under Sections 3 and 7 of
the Essential Commodities Act, copy of which is produced at Exh.5.
2.2 On
the basis of the aforesaid complaint, case was registered being
Special
Summary Case No.6 of 1999.
Since it is a summary case, plea of the accused was recorded at
Exh.2. The accused denied to have committed any such offence and,
therefore, the learned trial Court proceeded
with the trial.
2.3 In
order to bring home the charges leveled against the accused, the
prosecution has examined P.W.No.1, Deputy Mamlatdar at Exh.4,
P.W.No.2, Principal at Exh.26, P.W.No.3, Organizer at Exh.27,
P.W.No.5, Investigating Officer at Exh.29 and P.W.No.6, Organizer at
Exh.31.
2.4 After
recording the evidence of the prosecution witnesses was over, the
Learned
Special Judge, Panchmahals, Godhra
recorded the further statements of the accused under Section 313 of
the Criminal Procedure Code.
2.6 After
hearing the learned APP as well as learned advocate for the accused,
the Learned
Special Judge, Panchmahals, Godhra convicted
the accused for the alleged offence under
Section 420 of the Indian Penal Code and under Section 3 read with
Section 12(A)(A) of the Essential Commodities Act and
sentenced them as stated hereinabove.
It
is this judgment and order which has been assailed on the ground
inter alia that the conviction of the accused for the alleged
offence has been recorded erroneously, bad and illegal. The Learned
Special Judge has failed to appreciate the material and evidence on
record.
Learned
advocate, Mr.Anandjiwala referred to the evidence in detailed and
submitted that though the accused persons may have been charged with
having supplied Longdal instead of Tuverdal, the material and
evidence on a closure scrutiny would make it clear even from the
statements, which are in the nature of confessional statements
recorded by the Deputy Mamlatdar that they had supplied to the
organization and after about 8-10 days, the panchnama has been made
during which period, it could have been changed. Learned counsel
submitted that if it was supplied as State Government by the accused
persons then the quantity would have been consumed and, therefore,
at the time when the panchnama is made, no such quantity could be
found or recovered. He, therefore, submitted that the reliance
cannot be placed on such evidence. Learned counsel also submitted
that it was necessary for the I.O. to collect the stock register
from the fair price shop of the accused persons, which has
admittedly not been recorded. There is no evidence to show with
regard to any irregularity. He further submitted that though there
is a reference to Rule 44(A) of the Prevention of Food Adulteration
Act prohibiting the sale of such Longdal, no notification has been
placed on record. He further submitted that even record is required
to be maintained on the school or centre under the Mid-day Meal
Scheme, however, no such record has been produced or brought on
record. He further submitted that the statements of cooks are not
recorded. Learned counsel, Mr.Anandjiwala submitted that though it
has been admitted by complainant in his testimony at Exh.14, if such
items are purchased from the fair price shop by the Mid-day Meal
Centre and if it is found to be an inferior quality then the
complaint could have also been registered against the fair price
shop owner. He further submitted that the Organizer of Mid-day Meal
Scheme has not received any such complaint with regard to inferior
quality and goods have not been received by any such centres/schools
for Mid-day Meal Scheme. Even said Mid-day Meal Centre or the School
can refuse to accept such goods supplied by the fair price shop
registered for that area when it is delivered. He submitted that
therefore even the Principal of the School, who is in-charge of such
centre would, have resisted or registered the complaint against the
accused persons, who are running fair price shop to any Organization
or any authority under the Mid-daly Meal Scheme. He submitted that
even they can refuse to take such an inferior quality when it is
supplied by the fair price shop owner like accused. Learned counsel,
Mr.Anandjiwala also referred to the statements of original accused
nos.1 and 2 at Exh.19 and 20 respectively and submitted that even
the statements of accused at Exh.19 and 20 cannot be said to be a
confessional and he has on the contrary stated about the supply of
the same goods (Tuverdal).
He
referred to the testimony of P.W.No.2, Principal and submitted that
he has admitted that after such goods were received, he did not know
till the expiry of 8 days and he had not inspected the same. He also
referred to the testimony of P.W.No.3, Exh.27 that when he inquired
about the quality to the accused, the accused is said to have stated
that whatever is received from the Government is supplied, however,
there is no further complaint made by him.
Learned
advocate, Mr.Anandjiwala submitted that as an Organizer, he has
admitted that he had to maintain register and no such register has
been recovered. He further submitted that every day consumption is
about 7 Kg. and if after 7 or 8 days, it is noticed, most of the
quantity would have been consumed, which raises doubt with regard to
the recovery. He has denied suggestion that he has not supplied the
register to the Mamlatdar under the Mid-day Meal Scheme.
Mr.Anandjiwala, therefore, submitted that the P.W.No.1, complainant,
Deputy Mamlatdar has stated that he has not recovered any such
register. Therefore, learned advocate, Mr.Anandjiwala referring to
this evidence submitted that there are many lapses and the I.O. or
even the complainant, Deputy Mamlatdar has not taken proper steps to
recover the documentary evidence and, therefore, it cannot be said
to have proved beyond reasonable doubt that the accused persons had
sold Longdal instead of Tuverdal. He emphasized that after it was
purchased or supplied from the fair price shops of the accused, it
could have been diverted or got consumed by the Organizer and there
was specific suggestion put to the Organizer under the Mid Day Meal
Scheme. Therefore, learned counsel, Mr.Anandjiwala submitted that
this possibility of Organizer of Mid-day Meal Scheme having
manipulated or committed irregularities cannot be ruled out coupled
with the fact that no such registers have been examined during the
investigation and, therefore, when such possibility was not ruled
out, the benefit should go to the accused.
Learned
counsel, Mr.Anandjiwala referred to the further statements of the
accused recorded under Section 313 of the Criminal
Procedure Code and submitted that while
recording such statements, specific points or material like
statements including the so-called confessional statements of the
accused and they have not been asked to explain. Further question
based on the panchnama regarding the recovery of the Longdal is not
put to them. He, therefore, submitted that it would suggest that
they have not been given proper opportunity to explain about any
inculpatory material, on the basis of which the conviction is
recorded.
Learned
A.P.P., Mr.Jani resisted the present appeal. He referred to the
confessional statements of the accused persons produced at Exhs.19
and 20 and submitted that even if the statement at Exh.20 is not
direct confessional statement, the statement, Exh.19 clearly admits
about the fact of having sold Longdal instead of Tuverdal. He
further submitted that there may be some flow in the investigation
but the benefit may not be given to the accused in light of the
evidence on record. He submitted that the scheme under the Mid-day
Meal is implemented by the Government for the benefit of children
and, therefore, it requires serious consideration. He submitted that
the suggestion that the Organizer under the Mid Day Meal Scheme may
have manipulated or committed irregularities by itself would not be
sufficient though he admitted that sufficient material has not been
collected like registered, which would have thrown some light to
fasten the liability with regard to such offence or the
irregularities.
In
light of this rival submission, it is required to be considered
whether the impugned judgment and order passed by the trial court
calls for any interference by this Court or not.
As
recorded hereinabove, referring to the testimony of the witnesses,
learned counsel, Mr.Anandjiwala has pointedly referred to the aspect
that the I.O. and the complainant, Deputy Mamlatdar both have not
seized and recovered the necessary registers of the accused, who are
running fair price shop. Similarly, registers are required to be
maintained by the Mid-day Meal Centre, which has also not been
recovered as he pointedly referred to this aspects. It is not
repeated, however, as can be seen from the testimony of P.W.No.1,
Exh.4. He has also admitted that if the quality is not good, which
is to be supplied by the fair price shop, the centres/schools under
the Mid-day Meal can refuse to accept, however, there is no such
refusal and there is no complaint. It is also admitted that the
Organizer of such centre or the Principal of the school can lodge
the complaint to the Organizer under the Mid-day Meal Scheme. It is
also admitted that he has not collected and seized the stock
registers of both accused nor the stock register or the record of
the school/centre under the Mid-day Meal Scheme have been recovered.
The I.O., P.W.No.1 in his testimony at Exh.29 has submitted that
even he has not recorded the statement of the godown keeper or cook,
who were preparing the food at the school. The Organizer, P.W.No.6
at Exh.31 has stated that the Principal of the School had not
verified about the quality. He admitted that he has direct contact
with the Mamlatdar under the scheme but he has not lodged any
complaint. Therefore, the moot question which is required to be
considered is whether there is any cogent material and evidence with
regard to supply of Longdal instead of Tuverdal by the accused while
running their fair price shops registered for the supply under the
Mid-day Meal Scheme. There is no evidence on this aspect to
establish that they had supplied Longdal instead of Tuverdal,
therefore, as rightly emphasized, possibility of the irregularities
having been committed by the Organizer under the Mid-day Meal Scheme
or the school cannot be ruled out. Further as rightly emphasized
while recording statements under Section 313 of the Criminal
Procedure Code, all incriminating or
inculpatory material is required to be brought to the notice of the
accused in order to provide him opportunity or to explain, but no
such panchnama of recovery of such muddamal nor so-called
confessional statement of the accused persons have been referred to
in their further statements. Therefore, this would also affect the
case of the prosecution. A useful reference can be made to the
decision of the Hon’ble Apex Court reported in (2009)6 SCC 583,
wherein the Hon’ble Apex Court has clearly observed as under :-
the
whole object of enacting Section 313 of the Code was that the
attention of the accused should be drawn to the specific points in
the charge and in the evidence on which the prosecution claims that
the case is made out against the accused so that he may be able to
give such explanation as he desires to give.
Further
quoting from the earlier judgment reported in 2007(12) SCC 341, it
has been observed in Para No.15 as under :-
13. The
importance of observing faithfully and fairly the provisions of
Section 313 of the Code cannot be too strongly stressed.
It
is not sufficient compliance to string together a long series of
facts and ask the accused what he has to say about them. He must be
questioned separately about each material substance which is
intended to be used against him. The questionings must be fair and
couched in a form which an ignorant or illiterate person will be
able to appreciate and understand. Even when an accused is not
illiterate, his mind is apt to be perturbed when he is facing a
charge of murder. Fairness, therefore, requires that each material
circumstance should be put simply and separately in a way that an
illiterate mind, or one which is perturbed or confused, can readily
appreciate and understand.
Therefore,
in light of the aforesaid discussion and on scrutiny of the
evidence, the impugned judgment and order recording the conviction
of the accused persons deserves to be quashed and set aside.
In
the result, Criminal Appeal accordingly stands allowed. Judgment and
Order dated 01.04.1999 delivered by the Learned Special Judge,
Panchmahals, Godhra in Special Summary Case No.6 of 1999 recording
the conviction of the accused persons for the offence under Section
420 of the Indian Penal Code and under Section 3 read with Section
12(A)(A) of the Essential Commodities Act are quashed and set aside
and the
appellants-accused are ordered to be set at liberty forthwith, if
not required in any other offence. They are on bail and, hence,
their bail bonds stand cancelled. The fine paid by
the appellants-accused, if any, is ordered to be refunded.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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