CHANDRABABU Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) The appellant stands convicted for the offences under S.7(1)(a) of the Essential Commodities Act, 1955 read with Clause.3 of the Kerala Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers' Licensing Order, 1975 (for short 'the Order'). There were two accused in the Trial Court and the appellant was the first accused. The other accused was acquitted by the Trial Court.

(2.) The Sub Inspector of Police, Nadakkavu Police Station, received information at 10.30 p.m. on 31-5-1984 that an autorikshaw carrying palm oil was stopped and detained on the public road by some people alleging that the movement of the oil was in violation of law. The Sub Inspector along with the police party went to the spot and seized two barrels of oil wrapped in gunny bags and kept in the autorikshaw (KRZ 1924). When samples from the barrels were analysed by the chemical examiner, it was revealed that the barrels contained soya bean oil. The case was charge sheeted on completion of the investigation alleging that the two accused were clandestinely transporting soya bean oil in violation of the provisions of the Order. According to the prosecution, the oil belonged to the second accused. The Trial Court acquitted the second accused for want of evidence. But the appellant was found guilty as the evidence proved that he was the driver of the autorikshaw. Hence he was convicted and sentenced to imprisonment for three months and also to pay a fine of one thousand rupees.

(3.) Under Clause.3 of the Order "a person other than a dealer shall not keep in his possession at any time more than 20 kgs. of hydrogenated vegetable oil or 10 kgs. of other notified foodstuffs in all". Unless there is evidence to show that the appellant was in possession of soya bean oil seized from the autorikshaw he cannot be convicted for contravention of Clause.3 of the Order. The lower court found that the appellant was in possession of the soya bean oil as he was the driver of the autorikshaw in which the contraband articles were found. Learned counsel contended that there is no evidence to show that the appellant was the driver of the autorikshaw. It was further contended that even if the appellant was the driver he could not be found to be in possession of the contrabands since the prosecution case is that the soya bean oil belonged to the other accused. PWs 1 to 3 were the witnesses cited by the prosecution to prove that the autorikshaw was driven by the appellant. But all those three witnesses did not support the prosecution and hence they were treated as hostile. Learned Special Judge has relied on the testimony of the Sub Inspector (P.W.4) who deposed that the appellant admitted to him that he was the driver of the autorikshaw. The Trial Court also relied on an affidavit said to have been sworn to by the appellant on 5-6-1984 before the Additional Judicial Magistrate of the First Class. Kozhikode, admitting that he was the driver of the autorikshaw (KRZ 1924) which was seized by the Sub Inspector on 31-5-1984.