The prosecution must prove that an accused is a dealer under the Essential Commodities Act to sustain a conviction for possessing kerosene without a permit.

JUDGMENT : 

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 27.11.2014, passed by learned Sessions Judge, Hamirpur, District Hamirpur, H.P. (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 4.8.2012, passed by learned Judicial Magistrate First Class, Court No.3, Hamirpur, District Hamirpur, H.P. (learned Trial Court) were partly upheld and the sentence was reduced from six months to three months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 3 and 7 of the Essential Commodities Act (EC Act). It was asserted that SI Guler Chand (PW6), HHC Daulat Ram (PW1), HHC Hoshiar Singh (PW2) and Constable Pawan Kumar (PW10) had set up a naka at Masyana Nalti Chowk on 28.12.2008. A vehicle bearing registration No. HP-22A-3289 came from Nalti towards Hamirpur at about 4.45 AM. The police signalled the driver to stop the vehicle. The driver identified himself as Rakesh (the accused). The police checked the dickey of the car and recovered eleven containers (Ex.P1 to Ex.P11) containing 170 litres of kerosene oil. The police demanded a permit for transporting the kerosene, but the accused could not produce any permit. The police seized the vehicle and the containers vide memo (Ex.PW1/A). One bottle each was taken out of each of the containers for chemical analysis. The container and the bottles were sealed with seal ‘H’. The seal impression was taken on a separate piece of cloth. Rukka (Ex.PW6/A) was prepared and sent to the Police Station, where FIR (Ex.PW6/B) was registered. The accused produced his driving licence, which was seized vide memo (Ex.PW1/B). SI Guler Chand (PW6) investigated the matter. He prepared the site plan (Ex.PW6/C). The accused produced the registration certificate of the vehicle, which was seized vide memo (Ex.PW6/F). The case property was deposited with MHC Vijay Prakash (PW5), who deposited it in Malkhana and made an entry at Serial No.1336/221/08 (Ex.PW5/A). He handed over the sample bottles and the seal impression to HC Amar Nath (PW7) with a direction to carry them to RFSL, Gutkar vide RC No. 186/8 (Ex.PW5/B). Amarnath deposited all the articles at RFSL, Gutkar and handed over the receipt to MHC Vijay Prakash on his return. The result of the analysis was issued, mentioning that blue kerosene was detected in the sample bottles. The blue colour was being used by the Public Distribution System in kerosene. The statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 7 of the EC Act, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined ten witnesses to prove its case. HHC Daulat Ram (PW1), HHC Hoshiar Singh (PW2), and HC Pawan Kumar (PW10) are the official witnesses to the recovery. Rakesh Kumar (PW3) was posted as a salesman in a public distribution system depot, who proved that the accused had not purchased any kerosene from the Depot. Joginder Pal (PW4) did not support the prosecution’s case. Vijay Prakash (PW5) was working as MHC with whom the case property was deposited. Guler Chand (PW6) conducted the investigation. Amar Nath (PW7) carried the sample bottles to RFSL, Gutkar. Anjani Jaswal (PW8) signed the FIR and prepared the challan. Sunil Kumar (PW9) proved the entry in the daily diary.

5. The accused, in his statements recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He stated that proceedings were wrong