BASAVRAJ GAVASIDAPPA KALBURGI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ORIGINAL accused Basavraj Kalburgi filed present appeal challenging the order passed by Second Additional Sessions Judge, Kolhapur dated 5th march, 1993 in Special Case No. 3 of 1982.

(2.) FACTS in nutshell leading to the present appeal are that Executive Engineer, FWD department, Ratnagiri had placed an order for purchasing cement with Bagalkot Cement Factory. The order was for 200 tonnes out of which 150 tonnes is to be supplied at the Office of B andc Department at Ratnagiri while 50 tonnes is to be transported within the same District at Laanja. It is further alleged that on 6th June, 1991 Truck Registration No. MTL 711 was seized by police, police Station, Ichalkaranji along with cement load containing near about 240 bags of cement. Driver, Cleaner and the present appellant were in the said truck at the relevant time. Initially a Police Constable attached to traffic has submitted a report to police Authorities, Ichalkaranji Police Station and the P. I. attached to police station, ichalkaranji after making necessary enquiry noticed that the said cement being transported in breach of Cement Control Order and thereby committed an offence under section 3 read with Section 7 of the Essential Commodities Act by those three persons who were found in the said truck at the relevant time including cleaner, driver and the present appellant. P. I. , Police Station Ichalkaranji therefore accordingly made a report initially against these persons including the owner of truck, cleaner driver present appellant and two others. However, while submitting charge sheet the present appellant, driver and cleaner were only shown as accused in the above said crime. During the pendency of Criminal Case the driver of truck found dead and accordingly the proceedings being abated against him. Cleaner was absconding and therefore Special Judge i. e. Additional Sessions Judge, kolhapur passed necessary order under section 317 of Cr. P. C. and the case of present appellant is accordingly split up. Special Judge accordingly recorded plea of the present appellant for offence under Section 3 read with Section 7 of Essential Commodities Act as the accused on 6th June, 1981 along with other accused found in possession of 240 bags of cement approximately to the extent of 12 tonnes in truck registration No. MTL-711 without any pass and permit and thereby committed breach of the maharashtra Cement (Licensing and Control) Order, 1973 offence under Section 3 read with Section 7 of the Essential Commodities Act.

(3.) THE prosecution to connect the accused with the abovesaid crime examined near about 12 witnesses. P. W. 1 Vijay sakharam Kalap, a Peon working at Municipal Council, Ratnagiri and at the relevant time he was working at Shivaji Nagar Jakat naka in Octroi Section. He produced a Register maintained at Jakatnaka and according to him a Truck bearing Registration No. MTL-711 had been to the said Naka on 29th may, 1981. Through his evidence the entry taken in the Register was proved as cement was transported to Ratnagiri, the Extract Exhibit 51 is got proved through his evidence of this witness. Evidence is at Exhibit 50 which shows that by Truck bearing Registration No. MTL-711 a cement was transported to Ratnagiri i. e. on Friday 29th May, 1981. Then P. W. 2 Shivaji Laxman potdar. Chief Officer, Municipal Council, malkapur and from his evidence it is brought on record that the Truck MTL-711 had been to Malkapur on 27th May, 1981. An Escort receipt being brought on record through this witness at Exh. 54, while P. W. 3 Janardhan malhari Pathade, Nakedar in Octroi Section at Municipal Council, Sangli. Through his evidence the Escort Receipt Exh. 56 is brought on record so as to show that on 27th may, 1981 a truck No. MTL-711 has passed through Municipal Octroi Naka, Sangli. P. W. 4 is one Vijay Dhondiram Sutar, through his evidence Escort Receipt Exh. 58 is brought on record as this witness was working as nakedar on 4th June, 1981 at Sangli and according to him a truck No, MTL-711 has proceeded to Ratnagiri from Miraj. P. W. 5 is one Babu Annappa Chougule, a Clerk working in Octroi Section, Municipal Council, ichalkarnji and receipts Exh. 60 and receipt exh. 61 is for payment of Rs. 300/ -. The truck which was loaded with cement i. e. 240 bags proceeded towards Ratnagiri from ichalkaranji. Then P. W. 6 is one Manohar parasu Jadhav, serving in Municipal Council, Octori Section, Jaysingpur, by this witness a document Exh. 63 is got proved and according to the truck bearing No. MTL-711 has also passed from Jaysingpur. While p. W. 7 is one Harischandra Vithoba Shinde, a person who is serving in North PWD Division, Ratnagiri and according to him out of 200 tonnes cement in respect of which order was placed at Bagalkot Cement Factory the Department has received only 143 tonnes cement i. e. 107 tonnes at Ratnagiri and 36 tonnes cement at Laanja. Through the evidence of this witness document Exh. 67 is got proved which shows that by truck no. MTL-711 cement was transported from bagalkot Cement Factory to Ratnagiri only to the extent of 10 tonnes i. e. loaded at bagalkot on 28th May, 1981 and unloaded at Ratnagiri on 29th May, 1981. P. W. 8 is one Laxman Bhau Jadhav, a person serving in Municipal Council, Miraj Nagar parishad while P. W. 9 is Sonlal Gulabchand badjatya, General Manager, Konoriya Industries, Bagalkot Cement Factory and according to him the cement is transported to the extent of 155 tonnes to the B and C Department at Ratnagiri. So far as truck No. MTL-711 is concerned the said truck was loaded twice from Bagalkot (i) on 26th May, 1981 i. e. 12 tonnes load, i. e. 240 bags of cement and again it was loaded with cement i. e 10 tonnes load on 28th May, 1981. Extract of the cement transported by Bagalkot Factory is also got proved by this witness and the said extract or Delivery Note is proved at exh. 81. P. W. 10 is one Madhav Asingirao murnad, a Sales Incharge at Bagalkot Cement Factory and the extract in respect of transporting cement is brought on record, exh. 83. Then P. W. 11 is one Shripatrao balwantrao Mane, P. I. who lodged report and the basis of which Crime Is registered for the offence punishable under Sections 3 and 7 of Essential Commodities Act on 6th June, 1981. P. W. 12 is one Balasaheb Virupaksh heddur, another P. I. attached to Police Station, Ichalkaranji who completed the investigation and submitted charge sheet.