STATE OF HARYANA Vs. LEELU RAM

JUDGEMENT

(1.) THIS appeal has been filed by the appellant-State of Haryana against the judgment and order dated 13.9.1996 passed by the learned Special Judge, Faridabad whereby the respondents have been acquitted of the offence under Section 7 of the Essential Commodities Act 1955 (Act, for short).

(2.) CASE FIR No. 92 dated 23.2.1992 (Ex. PA/C) was registered at Police Station City Palwal for the offence under Section 7 of the Act. The complainant Tota Ram, ASI Police Station City Palwal (PW-5) sent a written note (Ex. PA) to the Station House Officer, Police Station City Palwal, which is to the effect that on 23.2.1992, he along with Head Constable Daya Ram No. 680, Constable Ishwar Singh No. 574 and Constable Ved Ram No. 736 were present at the Sila Gate, Palwal in connection with patrol duty. There Dharam Chand Sub Inspector, Food and Supply, Palwal met him and was conversing with him and there a secret informer gave information that Anand Sarup Mahajan (respondent No. 2) would in a four-wheeler No. HR-30-3717 driven by Leelu Ram (respondent No. 1) carry kerosene oil to Sector 23, Faridabad for selling it in the black market and if a roadblock (naka) was set-up at Patli Gate, Palwal, he could be apprehended. The information was considered reliable and correct and from which, an offence under Section 7 of the Act was made out. Accordingly, a note (ruqa) for further proceeding of registration of a case was sent through Constable Ved Pal. The number of the case was asked to be intimated after registration. ASI Tota Ram along with his companions proceeded to Patli Gate, Palwal for putting roadblock (nakabandi) in the area. On the basis of the said note (ruqa) the case (FIR) was registered. During the checking at the roadblock set up for the purpose, in the presence of witnesses the four- wheeler No. HR-30-3717 and the driver Leelu Ram (respondent No. 1) was intercepted and checking of the same was conducted. Anand Sarup Mahajan (respondent No. 2), however, succeeded in fleeing away from the four-wheeler. From the four-wheeler, four iron drums having capacity of 200 litres were recovered and after opening the same, they were found to be full of kerosene oil. Thereafter, vide memo dated 23.2.1992 (Ex. PB) proceedings regarding taking possession of the four-wheeler No. HR-30-3717 and drums of kerosene were carried out. After making necessary arrangements five-five litres of kerosene oil was taken out in separate plastic cans as sample from each of the four drums. The four drums were sealed with the seal 'TR' and the four- wheeler HR-30-3717 was taken into possession by the police as evidence by preparing memo. The seal after use was handed over to Shri Dharam Chand Sub Inspector Food and supplies Department. The memo of possession was prepared and the signatures of the witnesses were obtained. On asking Leelu Ram (respondent No. 1) was unable to produce any permit in respect of the oil.

(3.) SHRI J.P. Dhull, learned Assistant Advocate General, appearing for the appellant State has contended that the prosecution has proved its case in all respects by leading cogent and convincing evidence. The kerosene oil drums were recovered when a roadblock had been put up; besides Anand Sarup (respondent No. 2) jumped from the four-wheeler and ran away. These circumstances having been established, the learned Special Judge, it is contended, erred in holding that the prosecution had failed to prove that four drums of kerosene oil were recovered from the possession of the accused and the said finding is liable to be set aside. Besides, it is contended that the learned Special Judge, wrongly held that Tota Ram ASI (PW-5) was not competent to investigate the case and to make search and seizure.