{"id":51854,"date":"2010-08-23T00:00:00","date_gmt":"2010-08-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mathurbhai-vs-unknown-on-23-august-2010"},"modified":"2015-11-30T19:01:26","modified_gmt":"2015-11-30T13:31:26","slug":"mathurbhai-vs-unknown-on-23-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mathurbhai-vs-unknown-on-23-august-2010","title":{"rendered":"Mathurbhai vs Unknown on 23 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Mathurbhai vs Unknown on 23 August, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/377\/1999\t 2\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 377 of 1999\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\t\t:\tSd\/-\n \n \n====================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n====================================================\n\n\n \n\nMATHURBHAI\nJEKANBHAI BARIA & 1 - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n====================================================\nAppearance : \nMR\nKB ANANDJIWALA for Appellant(s) : 1 - 2. \nMR HL JANI APP for\nOpponent(s) : 1, \n====================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/04\/2010\n \n\nORAL\nJUDGMENT<\/pre>\n
Present
\n\tAppeal is directed against the judgment and order dated 01.04.1999
\n\tdelivered by the Learned Special Judge, Panchmahals, Godhra in
\n\tSpecial Summary Case No.6 of 1999 recording the conviction of the
\n\taccused persons for the offence under Section 420 of the Indian
\n\tPenal Code and under Section 3 read with Section 12(A)(A) of the
\n\tEssential Commodities Act and imposing
\n\tsentence of RI for 18 months and fine of Rs.1,000\/-, in default, to
\n\tundergo RI for 4 months each. The sentences were also ordered to run
\n\tconcurrently.\n<\/p>\n
The
\n\tfacts of the case briefly summarized are as follows:\n<\/p>\n
2.1\tIt
\nis the case of the prosecution that the appellants-original accused
\nwere having fair price shop for the respective areas. They were also
\nto distribute the essential commodities under the Mid-day Meal to the
\nrespective centres\/schools. Therefore, the original accused no.1, who
\nwas to distribute such Mid-day Meal centres for the village Kara,
\nKanajiya and Fulpari, had supplied Longdal instead of Tuverdal and
\nthereby committed offence under the provisions of Indian Penal Code
\nas well as under the provisions of Essential Commodities Act.
\nSimilarly, the original accused no.2, who was having fair price shop
\nat Jambughoda and was to distribute essential commodities in respect
\nof Mid-day Meal centre at Dhebar Faliya, Duma etc. had supplied
\nLongdal instead of Tuverdal and thereby committed offence as alleged.
\nIt is also stated that under Section 44(A) of the Food Adulteration
\nAct, there was prohibition for sale of Longdal. The Deputy Mamlatdar
\nunder the Mid-day Meal Scheme visited the centres and found these
\nirregularities, for which, he registered complaint being
\nC.R.No.24\/1996 with Jambughoda Police Station for the alleged
\noffences under
\nSection 420 of the Indian Penal Code and under Sections 3 and 7 of
\nthe Essential Commodities Act, copy of which is produced at Exh.5.\n<\/p>\n
2.2\tOn
\nthe basis of the aforesaid complaint, case was registered being
\nSpecial
\nSummary Case No.6 of 1999.\n<\/p>\n
Since it is a summary case, plea of the accused was recorded at
\nExh.2. The accused denied to have committed any such offence and,
\ntherefore, the learned trial Court proceeded
\nwith the trial.\n<\/p>\n
2.3\tIn
\norder to bring home the charges leveled against the accused, the
\nprosecution has examined P.W.No.1, Deputy Mamlatdar at Exh.4,
\nP.W.No.2, Principal at Exh.26, P.W.No.3, Organizer at Exh.27,
\nP.W.No.5, Investigating Officer at Exh.29 and P.W.No.6, Organizer at
\nExh.31.\n<\/p>\n
2.4\tAfter
\nrecording the evidence of the prosecution witnesses was over, the
\nLearned
\nSpecial Judge, Panchmahals, Godhra
\nrecorded the further statements of the accused under Section 313 of
\nthe Criminal Procedure Code.\n<\/p>\n
2.6\tAfter
\nhearing the learned APP as well as learned advocate for the accused,
\nthe Learned
\nSpecial Judge, Panchmahals, Godhra convicted
\nthe accused for the alleged offence under
\nSection 420 of the Indian Penal Code and under Section 3 read with
\nSection 12(A)(A) of the Essential Commodities Act and
\nsentenced them as stated hereinabove.\n<\/p>\n
It
\n\tis this judgment and order which has been assailed on the ground
\n\tinter alia that the conviction of the accused for the alleged
\n\toffence has been recorded erroneously, bad and illegal. The Learned
\n\tSpecial Judge has failed to appreciate the material and evidence on
\n\trecord.\n<\/p>\n
Learned
\n\tadvocate, Mr.Anandjiwala referred to the evidence in detailed and
\n\tsubmitted that though the accused persons may have been charged with
\n\thaving supplied Longdal instead of Tuverdal, the material and
\n\tevidence on a closure scrutiny would make it clear even from the
\n\tstatements, which are in the nature of confessional statements
\n\trecorded by the Deputy Mamlatdar that they had supplied to the
\n\torganization and after about 8-10 days, the panchnama has been made
\n\tduring which period, it could have been changed. Learned counsel
\n\tsubmitted that if it was supplied as State Government by the accused
\n\tpersons then the quantity would have been consumed and, therefore,
\n\tat the time when the panchnama is made, no such quantity could be
\n\tfound or recovered. He, therefore, submitted that the reliance
\n\tcannot be placed on such evidence. Learned counsel also submitted
\n\tthat it was necessary for the I.O. to collect the stock register
\n\tfrom the fair price shop of the accused persons, which has
\n\tadmittedly not been recorded. There is no evidence to show with
\n\tregard to any irregularity. He further submitted that though there
\n\tis a reference to Rule 44(A) of the Prevention of Food Adulteration
\n\tAct prohibiting the sale of such Longdal, no notification has been
\n\tplaced on record. He further submitted that even record is required
\n\tto be maintained on the school or centre under the Mid-day Meal
\n\tScheme, however, no such record has been produced or brought on
\n\trecord. He further submitted that the statements of cooks are not
\n\trecorded. Learned counsel, Mr.Anandjiwala submitted that though it
\n\thas been admitted by complainant in his testimony at Exh.14, if such
\n\titems are purchased from the fair price shop by the Mid-day Meal
\n\tCentre and if it is found to be an inferior quality then the
\n\tcomplaint could have also been registered against the fair price
\n\tshop owner. He further submitted that the Organizer of Mid-day Meal
\n\tScheme has not received any such complaint with regard to inferior
\n\tquality and goods have not been received by any such centres\/schools
\n\tfor Mid-day Meal Scheme. Even said Mid-day Meal Centre or the School
\n\tcan refuse to accept such goods supplied by the fair price shop
\n\tregistered for that area when it is delivered. He submitted that
\n\ttherefore even the Principal of the School, who is in-charge of such
\n\tcentre would, have resisted or registered the complaint against the
\n\taccused persons, who are running fair price shop to any Organization
\n\tor any authority under the Mid-daly Meal Scheme. He submitted that
\n\teven they can refuse to take such an inferior quality when it is
\n\tsupplied by the fair price shop owner like accused. Learned counsel,
\n\tMr.Anandjiwala also referred to the statements of original accused
\n\tnos.1 and 2 at Exh.19 and 20 respectively and submitted that even
\n\tthe statements of accused at Exh.19 and 20 cannot be said to be a
\n\tconfessional and he has on the contrary stated about the supply of
\n\tthe same goods (Tuverdal).\n<\/p>\n
He
\n\treferred to the testimony of P.W.No.2, Principal and submitted that
\n\the has admitted that after such goods were received, he did not know
\n\ttill the expiry of 8 days and he had not inspected the same. He also
\n\treferred to the testimony of P.W.No.3, Exh.27 that when he inquired
\n\tabout the quality to the accused, the accused is said to have stated
\n\tthat whatever is received from the Government is supplied, however,
\n\tthere is no further complaint made by him.\n<\/p>\n
Learned
\n\tadvocate, Mr.Anandjiwala submitted that as an Organizer, he has
\n\tadmitted that he had to maintain register and no such register has
\n\tbeen recovered. He further submitted that every day consumption is
\n\tabout 7 Kg. and if after 7 or 8 days, it is noticed, most of the
\n\tquantity would have been consumed, which raises doubt with regard to
\n\tthe recovery. He has denied suggestion that he has not supplied the
\n\tregister to the Mamlatdar under the Mid-day Meal Scheme.
\n\tMr.Anandjiwala, therefore, submitted that the P.W.No.1, complainant,
\n\tDeputy Mamlatdar has stated that he has not recovered any such
\n\tregister. Therefore, learned advocate, Mr.Anandjiwala referring to
\n\tthis evidence submitted that there are many lapses and the I.O. or
\n\teven the complainant, Deputy Mamlatdar has not taken proper steps to
\n\trecover the documentary evidence and, therefore, it cannot be said
\n\tto have proved beyond reasonable doubt that the accused persons had
\n\tsold Longdal instead of Tuverdal. He emphasized that after it was
\n\tpurchased or supplied from the fair price shops of the accused, it
\n\tcould have been diverted or got consumed by the Organizer and there
\n\twas specific suggestion put to the Organizer under the Mid Day Meal
\n\tScheme. Therefore, learned counsel, Mr.Anandjiwala submitted that
\n\tthis  possibility of Organizer of Mid-day Meal Scheme having
\n\tmanipulated or committed irregularities cannot be ruled out coupled
\n\twith the fact that no such registers have been examined during the
\n\tinvestigation and, therefore, when such possibility was not ruled
\n\tout, the benefit should go to the accused.\n<\/p>\n
Learned
\n\tcounsel, Mr.Anandjiwala referred to the further statements of the
\n\taccused recorded under Section 313 of the Criminal
\n\tProcedure Code and submitted that while
\n\trecording such statements, specific points or material like
\n\tstatements including the so-called confessional statements of the
\n\taccused and they have not been asked to explain. Further question
\n\tbased on the panchnama regarding the recovery of the Longdal is not
\n\tput to them. He, therefore, submitted that it would suggest that
\n\tthey have not been given proper opportunity to explain about any
\n\tinculpatory material, on the basis of which the conviction is
\n\trecorded.\n<\/p>\n
Learned
\n\tA.P.P., Mr.Jani resisted the present appeal. He referred to the
\n\tconfessional statements of the accused persons produced at Exhs.19
\n\tand 20 and submitted that even if the statement at Exh.20 is not
\n\tdirect confessional statement, the statement, Exh.19 clearly admits
\n\tabout the fact of having sold Longdal instead of Tuverdal. He
\n\tfurther submitted that there may be some flow in the investigation
\n\tbut the benefit may not be given to the accused in light of the
\n\tevidence on record. He submitted that the scheme under the Mid-day
\n\tMeal is implemented by the Government for the benefit of children
\n\tand, therefore, it requires serious consideration. He submitted that
\n\tthe suggestion that the Organizer under the Mid Day Meal Scheme may
\n\thave manipulated or committed irregularities by itself would not be
\n\tsufficient though he admitted that sufficient material has not been
\n\tcollected like registered, which would have thrown some light to
\n\tfasten the liability with regard to such offence or the
\n\tirregularities.\n<\/p>\n
\tIn
\n\tlight of this rival submission, it is required to be considered
\n\twhether the impugned judgment and order passed by the trial court
\n\tcalls for any interference by this Court or not.\n<\/p>\n
\tAs
\n\trecorded hereinabove, referring to the testimony of the witnesses,
\n\tlearned counsel, Mr.Anandjiwala has pointedly referred to the aspect
\n\tthat the I.O. and the complainant, Deputy Mamlatdar both have not
\n\tseized and recovered the necessary registers of the accused, who are
\n\trunning fair price shop. Similarly, registers are required to be
\n\tmaintained by the Mid-day Meal Centre, which has also not been
\n\trecovered as he pointedly referred to this aspects. It is not
\n\trepeated, however, as can be seen from the testimony of P.W.No.1,
\n\tExh.4. He has also admitted that if the quality is not good, which
\n\tis to be supplied by the fair price shop, the centres\/schools under
\n\tthe Mid-day Meal can refuse to accept, however, there is no such
\n\trefusal and there is no complaint. It is also admitted that the
\n\tOrganizer of such centre or the Principal of the school can lodge
\n\tthe complaint to the Organizer under the Mid-day Meal Scheme. It is
\n\talso admitted that he has not collected and seized the stock
\n\tregisters of both accused nor the stock register or the record of
\n\tthe school\/centre under the Mid-day Meal Scheme have been recovered.
\n\tThe I.O., P.W.No.1 in his testimony at Exh.29 has submitted that
\n\teven he has not recorded the statement of the godown keeper or cook,
\n\twho were preparing the food at the school. The Organizer, P.W.No.6
\n\tat Exh.31 has stated that the Principal of the School had not
\n\tverified about the quality. He admitted that he has direct contact
\n\twith the Mamlatdar under the scheme but he has not lodged any
\n\tcomplaint. Therefore, the moot question which is required to be
\n\tconsidered is whether there is any cogent material and evidence with
\n\tregard to supply of Longdal instead of Tuverdal by the accused while
\n\trunning their fair price shops registered for the supply under the
\n\tMid-day Meal Scheme. There is no evidence on this aspect to
\n\testablish that they had supplied Longdal instead of Tuverdal,
\n\ttherefore, as rightly emphasized, possibility of the irregularities
\n\thaving been committed by the Organizer under the Mid-day Meal Scheme
\n\tor the school cannot be ruled out. Further as rightly emphasized
\n\twhile recording statements under Section 313 of the Criminal
\n\tProcedure Code, all incriminating or
\n\tinculpatory material is required to be brought to the notice of the
\n\taccused in order to provide him opportunity or to explain, but no
\n\tsuch panchnama of recovery of such muddamal nor so-called
\n\tconfessional statement of the accused  persons have been referred to
\n\tin their further statements. Therefore, this would also affect the
\n\tcase of the prosecution. A useful reference can be made to the
\n\tdecision of the Hon’ble Apex Court reported in (2009)6 SCC 583,
\n\twherein the Hon’ble Apex Court has clearly observed as under :-\n<\/p>\n
\t the
\n\twhole object of enacting Section 313 of the Code was that the
\n\tattention of the accused should be drawn to the specific points in
\n\tthe charge and in the evidence on which the prosecution claims that
\n\tthe case is made out against the accused so that he may be able to
\n\tgive such explanation as he desires to give.\n<\/p>\n
\tFurther
\n\tquoting from the earlier judgment reported in 2007(12) SCC 341, it
\n\thas been observed in Para No.15 as under :-\n<\/p>\n
\t 13.\tThe
\n\timportance of observing faithfully and fairly the provisions of
\n\tSection 313 of the Code cannot be too strongly stressed.\n<\/p>\n
\tIt
\n\tis not sufficient compliance to string together a long series of
\n\tfacts and ask the accused what he has to say about them. He must be
\n\tquestioned separately about each material substance which is
\n\tintended to be used against him. The questionings must be fair and
\n\tcouched in a form which an ignorant or illiterate person will be
\n\table to appreciate and understand. Even when an accused is not
\n\tilliterate, his mind is apt to be perturbed when he is facing a
\n\tcharge of murder. Fairness, therefore, requires that each material
\n\tcircumstance  should be put simply and separately in a way that an
\n\tilliterate mind, or one which is perturbed or confused, can readily
\n\tappreciate and understand.\n<\/p>\n
\tTherefore,
\n\tin light of the aforesaid discussion and on scrutiny of the
\n\tevidence, the impugned judgment and order recording the conviction
\n\tof the accused persons deserves to be quashed and set aside.\n<\/p>\n
In
\n\tthe result, Criminal Appeal accordingly stands allowed. Judgment and
\n\tOrder dated 01.04.1999 delivered by the Learned Special Judge,
\n\tPanchmahals, Godhra in Special Summary Case No.6 of 1999 recording
\n\tthe conviction of the accused persons for the offence under Section
\n\t420 of the Indian Penal Code and under Section 3 read with Section
\n\t12(A)(A) of the Essential Commodities Act are quashed and set aside
\n\tand the
\n\tappellants-accused are ordered to be set at liberty forthwith, if
\n\tnot required in any other offence. They are on bail and, hence,
\n\ttheir bail bonds stand cancelled. The fine paid by
\n\tthe appellants-accused, if any, is ordered to be refunded.\n<\/p>\n
\t\t\t\t\t\t\tSd\/-\n<\/p>\n
(RAJESH
\nH.SHUKLA, J.)<\/p>\n
\/patil<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Mathurbhai vs Unknown on 23 August, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-51854","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMathurbhai vs Unknown on 23 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mathurbhai-vs-unknown-on-23-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mathurbhai vs Unknown on 23 August, 2010 - 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