CHANDER CHANGALMAL GEHANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, a shop owner from Kolhapur, through this appeal, has challenged his conviction under section 7 of the Essential Commodities Act. The prosecution alleged that on 20-7-1984, the accused had sold one litre of kerosene oil to a punter for a sum of Rs. 3/- even though, at the relevant time, the controlled price of kerosene oil was Rs. 1. 95. The police had sent the punter to the shop of the accused with a currency note of Rs. 10/- bearing No. 2/23 228274 and instructed him to purchase from the accused one litre of kerosene oil and to pay for it with the 10 rupee note. The accused gave the punter one litre of kerosene oil, took the 10 rupee note and returned Rs. 7/- to the punter. On receiving a signal from him, the police raided the shop and recovered under a panchnama the currency note of Rs. 10/- from the cash box of the accused, a six litre container of kerosene which was full, as also a funnel and a half litre measure. The accused was thereafter charge-sheeted and was put on trial and the learned Special Judge, Kolhapur convicted him under section 7 of the Essential Commodities Act and sentenced him to S. I. for 3 months and to pay a fine of Rs. 300/- in default S. I. for 15 days. It is against this conviction and sentence that the present appeal has been filed.

(2.) MR. Gursahani, learned Counsel appearing on behalf of the appellant has only briefly alluded to the evidence that is on record because he has based his challenge to the validity of the conviction essentially on points of procedural propriety and points of law. Coming to the first head, Mr. Gursahani has pointed out to me, that even though the accused had, in his section 313 statement, taken up a contention that he was in possession of a small quantity of kerosene oil which he had brought for his domestic use, that he was not a dealer or a licence-holder as far as this commodity was concerned and that, he has been forced to part with one litre of kerosene oil out of that stock; that the basic responsibility of the prosecution in establishing the essential ingredients of the charge cannot be departed from. Towards this end, Mr. Gursahani placed heavy reliance on the fact that the entire edifice of the prosecution case rests heavily on the panchnama. Mr. Gursahani is right when he states that in a case of the present type, which pertains to a raid and seizure, that the panchnama is a vital and a crucial document and that the prosecution ought to have taken utmost care to ensure that the procedural aspects were totally faultless and above board.

(3.) IN the present instance, we are faced with an unfortunate situation of the police having picked up a professional pancha for an important assignment of the present type. One expects a more responsible approach in these investigations particularly with regard to the choice of panchas. Selection of unreliable and unworthy persons as panchas is the finest method of sabotaging an entire prosecution. Even if one were to adopt the most charitable approach and accept that it happened by error, the situation is unpardonable. The defence has demonstrated that the pancha in this case, Balu Dattatraya Pawar, was a habitual pancha and they have also produced before the Court specific evidence of the several proceedings in which this particular pancha has figured. They have also demonstrated that his evidence was found to be unreliable in some of those proceedings and it was for good reason, therefore, that the learned Special Judge has discarded his evidence. The cavalier manner in which these prosecutions are conducted is pathetic to say the least; and it is ironical that such laxity is displayed in cases relating to essential commodities considering how disastrous the effects are to the community at large. Where the learned Special Judge has unfortunately erred is in accepting the panchnama which would automatically go if the panchas evidence is not only suspect but is discarded. As indicated by me earlier, it is on the basis of this panchnama that the prosecution established its entire case and, to my mind, the failure of this crucial facet of the prosecution is fatal to the conviction.