STATE OF HARYANA Vs. ROSHAN LAL

JUDGEMENT

(1.) Vide this judgment, eight Criminal Appeals Nos. 264 to 271 DBA of 1983 are being disposed of as the facts and the questions involved are common. Facts are taken from Criminal Appeal No. 264 DBA of 1983. On 22/10/1977, at about 3.00 P.M. S. I. Yudhishter Lal, S.M.O. Police Station, City Kaithal, while on patrol duty received secret information that Neki Rain and others were doing business of Forward Contracts in Old Grain Market Kaithal. He formed a Police Party and joined certian persons therein. He went to Old Grain Market and found several persons doing the business of Forward Contracts. He apprehended them and from them recovered notebooks, loose sheets, slips etc. All those persons were apprehended under Ss. 41(2) and 109 of the Code of Criminal Procedure. However the case under the provisions of the Forward Contracts (Regulation) Act, 1952 was registered on the following day. After completion of the investigation, separate challans were presented against different persons who were apprehended. The Trial Court framed charges under S. 20(e) on 11 Counts against Roshan Lal for entering into Forward Contract of mustard-seed having been entered on 3/08/1977. Roshan Lal was also charged under Section 21(a) of the Act and under S. 21 (c) of the Act. PW 1 Om Parkash and PW-4 S.I. Yudhishter Lal deposed about the raid and apprehension of the accused. They also deposed about recovery of different articles as quoted above. PW 2 R.N. Aggarwal and PW 3 N.D. Tilak, Senior Research Assistant, Forward Market Commission, Bombay, deposed about translation and interpretation of different documents recovered from the accused stating that such documents indicated trading in Forward Contracts of mustard-seed with different persons. PW-5 S.I. Balbir Singh deposed about the arrest of the accused in the present case. The accused while denying allegations of the prosecution pleaded that documents of other persons were being thrusted upon him. He produced in defence Exhibits D-1 and D-2. Judicial Magistrate Ist Class Kaithal on 23/10/1982 acquitted, the accused in all the cases. Hence the State has come up in appeal.

(2.) Section 22-A of the Act provides for conducting raids under orders of the Magistrate by the Police Officer not below the rank of Sub-Inspector to search and seize books of accounts and other documents relating to Forward Contracts. Section 22-B of the Act provided for raising a presumption in respect of such accounts taken into possession under orders of the Magistrate as provided under Section 22-A of the Act. If raid is not conducted under orders of the Magistrate, then a duty is cast upon the prosecution to prove such documents independently and no presumption can be drawn as contemplated under S. 22-B of the Act. This was so held by the Full Bench of the Bombay High Court in State of Maharashtra v. Jayantilal Popatlal Chandrani, 1979 Cri LJ 1231. After going through the provisions of the Act as referred to above, we are also of the same view. The contention of Shri Raghbir Chaudhary, A.A.G. appearing on behalf of the State that such a presumption should be drawn as contemplated under S. 22-B of the Act in the facts of the present case cannot be accepted. As already stated above, the accused persons were arrested on a raid conducted on 22/10/1977 and a case was registered for committing offences punishable under Sections 41(2) and 109 of the Code of Criminal Procedure, vide F.I.R. Exhibit PW 4/A. From this report read with the evidence of PW 4 S.I. Yudhishter Lal, it is quite clear that on receipt of information of the persons indulging in Forward Contracts, straightway he went to the spot and apprehended the accused. He did not approach the Magistrate concerned to obtain warrants for search and seizure. Thus merely from the fact of taking into possession different documents from the possession of the accused which subsequently translated and interpreted by the two experts PW 2 R.N. Aggarwal and PW 3 N.D. Tilak presumption of entering into Forward Contracts cannot be raised. The prosecution was expected to independently prove these documents to be executed by the accused. The prosecution having failed to lead any evidence in this respect, conviction of the accused under S. 20(e) of the Act cannot be made. Sub-section (e) of Section 20 provides punishment for entering into any Forward Contract against different provisions of the Act such as Sections 15, 17 and 19 of the Act. The prosecution has thus failed to prove charges framed on 11 Counts against the accused with respect to entering into Forward Contracts on 3/08/1977.

(3.) Since the prosecution has failed to prove that any Forward Contract was entered into at the time of conducting the raid, the prosecution has thus failed to establish the charge framed under S. 21 (a) of the Act or under Section 21(c) of the Act.