KISHORE NARANJIBHAI KHANIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred against the judgment and order of conviction and sentence passed by the learned Special Judge, Jamnagar in Special Criminal Case No.4 of 1997, on 24th November, 1998, whereby the present appellant -accused was convicted for violation of condition 3 of the Gujarat Essential Commodities (Distribution, Licensing, Control and Stock Declaration) Order, 1981 and Gujarat Essential Commodities (Licencing, Control and Stock Declaration) Order, 1981 read with Sections 3 and 7 of the Essential Commodities Act, 1955. The accused was sentenced to undergo three months simple imprisonment and sentenced to pay a fine of Rs.500/ -, in default thereof to undergo ten days simple imprisonment.

(2.) THE case of the prosecution is that on 11/6/1990 the present appellant -accused was found selling blue colour kerosene with his handcart to one rickshaw driver. However, upon inquiry made by the Mamlatdar the appellant -accused had denied to have any licence for selling blue colour kerosene. The appellant -accused was having 35 liters of kerosene and two liters of kerosene had been sold to rickshaw driver. Statement of the appellant -accused was recorded on the spot. The stock of 35 liters of kerosene and handcart was detained and papers were prepared in this regard and a report was sent to the Collector, Jamnagar who in turn directed the Deputy Mamlatdar, (Stock) Jamnagar to file a complaint against the appellant -accused.

(3.) THE prosecution has examined the Deputy Mamlatdar of the Civil Supply Department. The accused was caught on the spot while he was selling kerosene to one rickshaw driver with stock of 35 liters of blue colour kerosene which is generally meant for distribution to the public at large through the fair price shops and authorized licence holder. According to the prosecution, the accused was not having any licence and stock found with him was more than 18.5 liters. So, it is not possible even to infer that the kerosene found from the accused was the stock purchased by him for his personal consumption. The usage of kerosene for driving the rickshaw is itself an offence and it emerges that the Civil Supply Officer has also recommended that the rickshaw driver should also be prosecuted for violating one of the Control Order issued for regulating the usage of kerosene. Undisputedly, there is nothing on record to show that the rickshaw driver was prosecuted but it appears that rickshaw driver was not prosecuted, but he was examined as Prosecution Witness No.2, Noormamad Kamalbhai at Exh.8. Of course, this witness has not identified the appellant -accused as the person from whom he had purchased the kerosene but rest of the facts stated by him clearly indicates that he was caught by the Deputy Mamlatdar when he was purchasing kerosene from one handcartvala and the person from whom he had purchased the kerosene was taken to the Office of the Mamlatdar and his statement was recorded and he put his thumb impression. Panchnama was also prepared as to the seizure of the kerosene found from the accused.