Shreekrishan Kushwah vs State Of Madhya Pradesh

(1) This criminal revision under Section 397, 401 of Cr.P.C. has been filed against the judgment and sentence dated 11.01.2019 passed by the 13th Additional Sessions Judge, Gwalior in Criminal Appeal No. 469/2018, by which the judgment and sentence dated 14.11.2018 passed by JMFC, Gwalior in Criminal Case No. 6809256/2015 has been affirmed. The applicant has been convicted under Section 3/7 of Essential Commodities Act and has been sentenced to undergo rigorous imprisonment of three months and a fine of Rs.1,000/- with default imprisonment.

(2) The necessary facts for the disposal of the present revision in short, are that on 03.03.2012 at about 11:00 AM, under the instructions of the District Supply Controller, Gwalior, the Measurement Inspector, Gwalior, Junior Supply Officer, Gwalior as well as other members of the team carried out a surprise inspection of M/s Maa Petroleum and Sons Singhpur Road, Morar, District Gwalior and it was alleged that the applicant has not maintained the record of the stock. 335 litres of diesel was found in excess of the stock. The measurement equipments were defective and accordingly an offence under Section 3/7 of the Essential Commodities Act was registered for violation of Clause 4, 5, 10 of Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980 (in short "Order, 1980") as well as violation of Clause 3, 4 and 10 of the License.

(3) During the investigation, spot map was prepared. Statements of the witnesses were recorded. The applicant was arrested and after completing the investigation, police filed the charge-sheet.

(4) The Trial Court by order dated 25.09.2013 framed the charge under Section 3/7 of the Essential Commodities Act.

(5) The applicant abjured his guilt and pleaded not guilty.

(6) The prosecution in order to prove its case examined Awadhesh Kumar Pandey (PW-1), R.N. Shrivastava (PW-2), D.L. Giri (PW-3) and Badshah Singh (PW-4), Bharat Singh Kushwah (PW-5) and Sub-Inspector R.S. Gaur (PW-6).

(7) The applicant did not examine any witness in his defence.

(8) The Trial Court by judgment and sentence dated 14.11.2018 convicted the applicant under Section 3/7 of the Essential Commodities Act by holding that on inspection 335 litres of diesel was found in excess of the stock maintained by the applicant. It appears that the Collector by order dated 12.06.2012 had confiscated the excessive stock of 335 litres of diesel and the said order has been set aside by the High Court in Cr.R. No. 899/2013 by order dated 01.11.2013. However, the contention made by the counsel for the applicant that as the applicant has been found to be innocent in the confiscation proceedings, therefore, the criminal proceedings should be quashed, was rejected by the Trial Court. It appears that the applicant had filed M.Cr.C. No. 1755/2015 before this Court for quashing the criminal proceedings mainly on the ground that the order of confiscation passed by the Collector has already been set aside and, therefore, the applicant cannot be prosecuted and convicted for criminal offence. This Court by order dated 15.02.2017 had held that the initiation of criminal proceedings is not dependent upon the confiscation proceedings, therefore, by necessary implication, it cannot be said that as the order of confiscation was quashed, therefore, the order directing the initiation of criminal proceedings also stood quashed automatically. It was also held by the Trial Court that the witnesses have specifically proved that 335 liters of diesel was found in excess of the stock maintained by the applicant and, accordingly, it was held by the Trial Court that although the prosecution has failed to prove that by keeping the sub-standard measurement apparatus, the applicant has violated any term of license, but it was found that the applicant has violated the Clause 3 and 4 of the Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980 and, hence, the applicant was held guilty of committing offence under Section 3/7 of Essential Commodities Act and he was sentenced to undergo rigorous imprisonment of three months and a fine of Rs.1,000/- with default imprisonment.

(9) Being aggrieved by the judgment and sentence dated 14.11.2018 passed by the Trial Court, the applicant filed an appeal which too has been dismissed by the Appellate Court by judgment dated 11.01.2019 passed in Criminal Appeal No. 469/2018 and the judgment and sentence passed by the Trial Court has been maintained.

(10) Challenging the judgment and sentence passed by the Court below, it is once again submitted by the counsel for the applicant that as the order of confiscation passed by the Collector, was set aside by this Court by order dated 01.11.2013 passed in Cr.R. No. 899/2013, therefore, the applicant should not have been prosecuted for the criminal offence. However, the counsel for the applicant fairly conceded that the petition under Section 482 of Cr.P.C. was filed by him before this Court on the similar contention, which was registered as M.Cr.C. No. 1755/2015 and this Court had held that merely because the order of confiscation has been quashed, would not ipso facto mean that the FIR lodged against the applicant is also liable to be quashed. It is further admitted that the order dated 15.02.2017 passed by this Court in M.Cr.C. No. 1755/2015 was never challenged by the applicant before the Supreme Court. Thus, it is clear that the order dated 15.02.2017 passed in M.Cr.C. No. 1755/2015 has attained finality. Furthermore, the Supreme Court in the case of State of M.P. Vs. Kallo Bai reported in (2017) 14 SCC 502, has held as under:-

"22. In view of the foregoing discussions, it is apparent that Section 15 gives independent power to the authority concerned to confiscate the articles, as mentioned thereunder, even before the guilt is completely established. This power can be exercised by the officer concerned if he is satisfied that the said objects were utilised during the commission of a forest offence. A protection is provided for the owners of the vehicles/articles, if they are able to prove that they took all reasonable care and precautions as envisaged under sub-section (5) of Section 15 of the Adhiniyam and the said offence was committed without their knowledge or connivance.

Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle."

At the cost of repetition we clarify that confiscatory proceedings are independent of the main criminal proceedings. In view of our detailed discussion in the preceding paragraphs we are of opinion that High Court as well as the revisional court erred in coming to a conclusion that the confiscation under the law was not permissible unless the guilt of the accused is completely established."

(11) Thus, it is clear that the confiscation proceedings are independent of the criminal proceedings and merely because the confiscation order was set aside would not ipso facto mean that the criminal proceedings are also liable to be set aside.

(12) It is next contended by the counsel for the applicant that the independent witness Bharat Singh Kushwaha (PW-5) has not supported the prosecution case and thus, the witnesses of the department should not be relied upon. To buttress his contention, counsel for the applicant has relied upon the judgment passed by the co-ordinate Bench of this Court in the case of Laxmi Narayan Vs. State of M.P. reported in 1993 2 EFR 369.

(13) Bharat Singh Kushwaha (PW-5) has admitted his signatures on the panchnamas. He has further admitted that he never signs any document without going through it. He has explained that as he had gone to the office of Food Department for preparation of his ration card and at that time, he was instructed by the Food Officer that he should sign those documents and only thereafter his work would be done.

(14) The explanation given by Bharat Singh Kushwaha cannot be accepted for the simple reason that he has not produced any document to show that when his ration card was prepared. Further, it is not expected that the officer of the Food Department would ask an independent person to sign the documents and the said independent person would sign the said document without going through it. Further, it is not the explanation of Bharat Singh Kushwaha (PW-5) that he had signed the Panchnamas Ex. P-1 to P-3 under pressure or coercion. 335 litres of diesel was seized vide seizure memo Ex. P-1. The said seizure memo also bears the signature of the present applicant as well as the signature of Bharat Singh Kushwaha. 335 litres of diesel was handed over vide interim custody to the applicant vide Supurdginama Ex. P-2, which also bears the signature of Bharat Singh Kushwaha (PW-5). Panchnama Ex. P-3, which was prepared on 03.03.2012 at 11:10 at M/s Maa Petroleum and Sons Singhpur Road, Morar, District Gwalior, also bears the signature of Bharat Singh Kushwaha (PW-5).

(15) The Supreme Court in the case of Rohtash Kumar v. State of Haryana reported in (2013) 14 SCC 434 held as under:-

"35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in the court, or otherwise. In Pradeep Narayan Madgaonkar v. State of Maharashtra this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court therein held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also Paras Ram v. State of Haryana, Balbir Singh v. State, Kalpnath Rai v. State, M. Prabhulal v. Directorate of Revenue Intelligence and Ravindran v. Supt. of Customs.)

Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."

(16) Thus, it is clear that Awadhesh Kumar Pandey (PW-1), R.N. Shrivastava (PW-2), D.L. Giri (PW-3) have specifically stated that at the time of physical verification, 335 litres of diesel was found in excess and as the variation in stock was more than 4%, therefore, the diesel was seized vide seizure memo Ex. P-1 and it was handed over to the present applicant vide interim custody Panchnama Ex. P-2 and the spot Panchnama Ex. P-3. Both the Courts below have come to a conclusion that the evidence of Awadhesh Kumar Pandey (PW-1), R.N. Shrivastava (PW-2), D.L. Giri (PW-3) is reliable.

(17) By referring to paragraph 4 of the cross-examination of Awadhesh Kumar Pandey (PW-1), it is submitted by the counsel for the applicant that as this witness has admitted that if the dip at the time of measurement gets tilted or if it is short in length, then there would be some variation in stock. However, it appears that no such objection was raised by the applicant at the time of the physical inspection. Even he did not object that size of the dip was not correct or the dip was not inserted in the proper manner. By referring to paragraph 5 of the cross-examination of this witness, it was submitted by the counsel for the applicant that this witness has admitted that nobody had made a complaint with regard to sale of diesel at a higher price. He has further admitted that no complaint with regard to blackmailing by the applicant was ever received. He has further admitted that he had not noticed that the applicant was charging more than the price of the petrol or diesel. Accordingly, it is submitted that in fact, there was no default on the part of the applicant.

(18) The submissions made by the counsel for the applicant are misconceived and contrary to the record and are misleading. It is not the case of sale of petrol or diesel at a higher price. It is the case where 335 litres of diesel was found to be in excess of the stock, which means that less quantity of diesel was being given to the customers. No question has been put to the witness with regard to delivery of short quantity of diesel and an attempt was made by the applicant to twist the allegation by saying that as this witness has admitted that there was no complaint with regard to charge of more than the price of diesel, therefore, no offence is made out. The submission made by the applicant cannot be accepted and the same is irrelevant.

(19) So far as the present case is concerned, no other arguments with regard to the merits of the case have been advanced by the counsel for the applicant. Both the Courts below after appreciating the evidence available on record have given a specific finding that 335 litres of diesel was found in access of the stock register. It is well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a Court having jurisdiction, in absence of a jurisdictional error. The Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 09 SCC 460 has held as under:-

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.

It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."

(20) The Supreme Court in the case of Chandra Babu alias Moses v. State through Inspector of Police and others reported in (2015) 8 SCC 774, has held as under:-

"11. First, we shall dwell upon the issue whether the High Court, in exercise of the revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation. In fact, he has noted certain facts and deduced certain conclusions, which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. (See Amit Kapoor v. Ramesh Chander.)

Judging on the aforesaid premises, we have no shadow of doubt that the High Court has adverted to the facts not to see the perversity of approach, or to see that justice is done, but analysed it from an angle as if it is exercising the appellate jurisdiction. Therefore, the High Court's conclusion with regard to the factual score is unsustainable."

(21) The Supreme Court in the case of Kishan Rao v. Shankargouda reported in (2018) 8 SCC 165, has held as under:-

"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following: (SCC pp. 454-55, para 5)

"5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..."

Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke 3. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para 14: (SCC p. 135)"

"14.......Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

(22) In absence of any perversity, this Court is of the view that the findings of facts recorded by the Courts below cannot be interfered with and even otherwise, all the submissions made by the counsel for the applicant on the merits of the case are misconceived. Accordingly, it is held that the applicant is guilty of violating the Clause 3, 4 of the Madhya Pradesh Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980 and thus, he has committed an offence punishable under Section 3/7 of Essential Commodities Act.

(23) It is further submitted by the counsel for the applicant that this Court in Criminal Revision No.528/2011 passed in the case of Munna Lal Prajapati Vs. State of M.P. on 16.01.2017 has held that as the applicant therein was awarded three months rigorous imprisonment with a fine of Rs.1,000/- and since he was first offender having been convicted under Section 3/7 of Essential Commodities Act, therefore, he can be released on probation of good conduct and, accordingly, in that case, the applicant therein was released on probation of good conduct. It is further submitted that even in the present case, the applicant is the first offender and, therefore, he can be released on probation.

(24) Considered the submissions made by the counsel for the applicant.

(25) In the case of Munna Lal Prajapati (supra), the accused therein was found to be using the domestic cylinder instead of commercial cylinder for roasting ground-nuts. Where the poor person who was found roasting ground-nuts by using domestic cylinder was convicted under Section 3/7 of the Essential Commodities Act, therefore, considering the allegations made against him, he was granted the benefit of probation, whereas in the present case, it has been found that the applicant was in possession of 335 litres of diesel in excess of the stock, which clearly indicates that the applicant was not supplying the full quantity of the diesel to the customers. The act of the present applicant amounts to defrauding the various customers, who used to come to petrol pump for purchasing the diesel, therefore, not only the act of the applicant is punishable under Section 3/7 of the Essential Commodities Act, but his act is also against the Society. Under these circumstances, this Court is of the considered opinion that the applicant is not entitled for the benefit of probation.

(26) Accordingly, the jail sentence of three months and a fine of Rs.1,000/- awarded by the Trial Court is hereby maintained. Resultantly, the judgment and sentence dated 11.01.2019 in Criminal Appeal No. 469/2018 and 14.11.2018 in Criminal Case No. 6809256/2015 passed by the Appellate Court and the Trial Court are hereby affirmed.

(27) The applicant is already in jail and he was not granted bail. He shall suffer the sentence awarded by the Trial Court.

(28) The revision fails and is hereby dismissed.