LAWS(GJH)-2007-10-13

BHAGABHAI ROOPSINGHBHAI RATHOD Vs. G K NISARATA

Decided On October 05, 2007
BHAGABHAI ROOPSINGHBHAI RATHOD Appellant
V/S
G.K.NISARATA, NAYAB MAMLATDAR Respondents

JUDGEMENT

(1.) THE appellant-orig. convicts have preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 20th February 1999 passed by the learned Special Judge, Panchmahal at Godhra in Summary Case No. 12 of 1998 (ECA), whereby the learned trial Judge has held the appellants guilty for the offence punishable under Section 12 (A) (A) of the of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') for breach of Section 3 of the Act, and sentenced each of them to undergo rigorous imprisonment for one year and a fine of Rs. 500/- and in default of making payment of fine to undergo simple imprisonment for one month.

(2.) THE legality and validity of the judgment and order of conviction and sentence under challenge has been assailed on various grounds mentioned in the memo of appeal. However, Shri Vijal Desai, learned counsel appearing for the appellants, has concentrated his arguments mainly on the following two points : the first point of submission of Shri Vijal Desai is that the appellants ought not to have been held guilty for the alleged illegal disposal of wheat, rice and sugar to the tune of 325 kgs. , 135 kgs. and 6 kgs. respectively because the evidence led by the prosecution is not adequate to link the appellants with the crime. Out of total 11 ration card-holders only 3 (three) card-holders were examined by the prosecution and all these three have led hazy type of evidence. The learned trial Judge has not considered at all as to what would be the probable legal effect of the oral version qua the entries which were found in the respective ration cards. The say of the said 11 card-holders before the Inspecting Team was that they have not received or taken either quota of wheat or rice from the shop of the appellants. There is no direct allegation that false bills were prepared of these card-holders and the stock was sold in the black-market and there were no entries in 11 ration cards of the respective card-holders. The bare words of these three card-holders i. e. prosecution witnesses, ought not to have been accepted as gospel truth for accepting the case of the prosecution that the aforesaid stock was disposed of otherwise than actual sale to the said card-holders. PW-4-Kalubhai Sevabhai, who has been examined vide Ex. 12, cannot be said to have adhered to his original version which was made before the Inspecting Officer. This witness has said that he is having his ration card of the shop of the appellants and he had taken only sugar. According to him, he has not stated that he was not given "anything". According to him, he has not taken rice and wheat from the shop. In the cross-examination, he has admitted that the detailed entries were being made in the card at the time of purchase of the material. He has further admitted that he has other members in the family and other family members also sometimes go to the said fair price shop of the appellants to get the material. On such a weak evidence, the appellants could not have been linked with the crime in question and the appellants deserve benefit of doubt.

(3.) THE second fold of argument of Shri Vijal Desai is that the other irregularities which were noticed are of very minor nature. On physical verification, the Inspecting Team had found that the stock of wheat was less by 14. 450 kgs. , meaning thereby, the difference was of even less than 15 kgs. The stock of rice was found less by about 11. 500 kgs. and the stock of sugar was less only by 2 kgs. If the appellants were really indulging in the activity of black-marketing of the said material by putting false entries in the cards of the card-holders, such a negligible difference ought not have been there. The Inspecting Team has not even categorically stated that the appellants were supposed to distribute material to how many card-holders. According to Shri Vijal Desai, the appellants were handling about 1800 to 2000 card-holders and on a close scrutiny, only 11 persons were brought before the Inspecting Team who had undertaken exercise of inspection. So keeping this totality in mind, the learned trial Judge could have given benefit of Probation of Offenders' Act to the appellants. Ultimately, the appellants were the office bearers of a co-operative society. The appellant no. 1 was the Manager of the said fair price shop and the appellant no. 2 was the Chairman of the co-operative society, which was issued licence to run the fair price shop. Ultimately, the administration of such shop remains with the entire body of the co-operative society and the Manager serving under such society practically has no voice; even then very limited difference in the stock was found on the day of "surprise checking". This case, therefore, cannot be said to be a case of gross irregularities. In such a case even no formal prosecution was required to be instituted. The Government is ignoring number of irregularities in hundreds of cases. In that situation, the learned trial Judge at least ought to have granted benefit of Probation of Offenders' Act to the appellants keeping in mind the scheme of Section of the Probation of Offenders' Act.