GOPALBHAI MADHUSUDAN PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD ld. Counsel Mr. Prajapati for the appellant accused and ld. APP Ms Darshana Pandit for the State. The present appeal is preferred by the appellant accused under section 374 read with section 386 of CrPC assailing the legality and validity of the judgment and order of conviction and sentence dated 01.05.1999 passed by ld. Special Judge, Panch Mahals at Godhara in Special Sessions Case No. 4/1999. Vide impugned judgment, the appellant accused has been held guilty by the ld. Trial Judge for the offence punishable under section 3 of The Essential Commodities Act (hereinafter referred to as the EC Act) and sentenced him to undergo R/I for 3 Months and to pay a fine of Rs.5,000/, I/d to further undergo S/I for 1 month. According to Mr. Prajapati, the amount of fine has been paid.

(2.) THE appellant has challenged the impugned judgment on various ground mentioned in the memo of appeal and ld. Counsel Mr. Prajapati appearing for the appellant accused has taken me through all these grounds and so also the judgment under challenge. He has drawn attention of the Court to the contents of the plea recorded by the ld. Trial Judge on 10.02.1999 and attempted to focus that the substantive charge against the accused was that he was responsible for a grave wrong as petrol worth 437 liters was found in excess in the tank at the time of checking. That number of irregularities found by the officer who had visited and inspected the petrol pump running in the name and style of M/s Manilal Mohanlal Petrol and Diesel Pump on 24.03.1998 and for that a formal complaint was filed on 29.10.1998. Before filing of the complaint, statement of the person present i.e. servant of the appellant accused was recorded by the visiting officer and the accused was also asked to explain the contingency that has reflected in the statement given by his servant. The intimation was given to the servant and on two different occasions, the appellant accused had explained about the alleged irregularities that were noticed by the officer. According to Mr. Prajapati, when majority of the allegations were found to be not correct by the Highest Officer of the State i.e. Deputy Director (Civil Supplies), State of Gujarat, Gandhinagar and order of responsible officer was on record vide exh.20, the ld. Trial Judge ought not to have linked the accused with crime or with main substantive charge. The allegation against accused was that the stock of trade i.e. petrol was found in excess by 437 liters, but ultimately it came practically to "nil" because the accused had successfully explained stock situation noted by the visiting officer. The details were submitted by the accused in his explanation dated 04.04.1998 (exh.14) given to the Deputy Director. The explanation given by the accused was discussed by the Deputy Director before recording the ultimate finding in para -7 while dealing with irregularity No.7 mentioned in the notice to show cause which is at page 185 -187 of the paper book (part of the document exh.20). The close reading of the evidence led by the prosecution and explanation given by the accused to the Civil Supplies Officers, reveals that the accused was not responsible for short -fall of petrol beyond 4 liters. The responsible officer of the State while exonerating the accused has observed that the error in recording and maintaining Density Register is a case of sheer mistake and there is nothing on record to show that the density of either diesel or petrol was not according to the norms prescribed and the permissible limits qua variation. When the accused was not found responsible by the Highest Officer of the State namely the Deputy Director, the complainant ought to have disclosed these facts in his deposition and mainly in examination -in -chief itself because the finding given by the Deputy Director is subsequent to the date of the complaint.

(3.) THERE is much force in the arguments of ld. Counsel Mr. Prajapati for the appellant. The Court is inclined to adopt the reasons assigned by the Deputy Director while exonerating the accused from the allegations and explanation given by the accused dated 04.04.1998 (exh.14). It is possible for the Court to say that the ld. Trial Judge has grossly erred in evaluating the oral as well as documentary evidence. It emerges that oral evidence is not in conformity with the documents that were available on record and the oral evidence ought not to have been given weightage when they were not in conformity with the documents relied upon by the prosecution side.