Point of Law: Illegal selling kerosene oil - Conviction modifies - Quantity and nature of Essential Commodity i.e. kerosene oil, it will be too harsh to send him to prison and in opinion of this Court imposition of fine will serve purpose of justice.

JUDGMENT :

SYED AFTAB HUSAIN RIZVI, J.

1. Heard learned counsel for the appellant and learned AGA for the State.

2. This criminal appeal has been filed against the judgment and order dated 10.11.1993 passed by Special Judge, Varanasi in Criminal Case No. 52 of 1986 (State vs. Jagarnath), Crime No. 356/1982, Police Station-Sigra, Varanasi convicting the appellant under Section 3/7 of Essential Commodities Act and sentencing him to undergo two years rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine, further six months rigorous imprisonment.

3. In brief, the prosecution case is that on 17.10.1982 at about 9:15 p.m., Station House Officer, Sigra received an information that one Jagarnath has stored kerosene oil in his house in illegal manner, in order to sell it, in black market. The SHO, Sigra along with other police officials and public witnesses-Sahablal and Paras reached at the house of Jagarnath and on search found 200 litres of kerosene oil kept in a drum in the corner of the outer room of the house. The accused could not show any licence. The Raiding Party took the drum of kerosene oil in its possession, prepared the recovery memo at the spot and lodged a First Information Report at police station-Sigra on the same day at about 10:30 p.m. Investigation commenced and after completion of investigation, charge-sheet was submitted. Statement of the accused was recorded and particulars of the offence stated to him. The accused pleaded not guilty and claimed for trial. The prosecution produced four witnesses. Statement of accused under Section 313 Cr.P.C. was recorded in which accused denied the prosecution case and further stated that his brother-Sita Ram is inimical to him, who falsely got him implicated in this case in connivance with the local police. Learned trial court after hearing the arguments by the impugned judgment held accused guilty and sentenced him.

4. Learned counsel for the appellant contended that the place of recovery of kerosene oil is an open place outside the house and in the premises where other families also reside. The appellant has no concern whatsoever with the seized kerosene oil which belongs to his brother-Sita Ram. The kerosene oil has been recovered from an open chabutara, so it cannot be said that it has been recovered from the possession of the accused. Learned counsel for the appellant further submitted that prosecution has led no evidence that kerosene oil was kept there for sale and there is no evidence to show that appellant was selling it. No instrument or material has been recovered which can show that it was kept for sale. The prosecution has failed to prove that the seized kerosene oil was recovered from the exclusive possession of the appellant. As such the conviction and sentence passed by the trial court is against the fact and law.

5. Learned AGA submitted that kerosene oil has been recovered from chabutara which is outer portion of the house of the appellant. The prosecution witnesses have proved the recovery of the kerosene oil. The accused/appellant has failed to produce any evidence in defencee that seized kerosene oil belongs to his brother-Sita Ram. The huge quantity of the kerosene oil itself indicates that it was kept for black marketing. The learned trial court has rightly examined the evidence on record and finding recorded by the trial court is reasonable and proper and there is no perversity in it.

6. Out of the four witnesses produced by the prosecution, two witnesses, namely constable Krishna Bihari Misra PW-1 and D.P. Shukla, the then Station House Officer, Sigra PW-2 are the witnesses of facts. They are members of the police party that raided the house of the accused and made the recovery. Both the witnesses supporting the FIR version in their examination-in-chief have stated that two hundred litres of kerosene oil kept in a drum in the outer portion of the house of the accused in an open room was recovered by them. The site plan (Exhibit ka-6)