Subramaniam Chettiar vs The Inspector, Civil Supplies Criminal Investigations Department, Tiruchirappalli

Arunachalam, J.—The Appellant Subramaniam Chettiar was tried before the Special Judge, Essential Commodities Act cases, Pudukkottai,

in S.T.C. No. 9 of 1984, for violation of Cl.3 of the Cement (Quality Control) Order, 1962, which is an offence punishable u/s 7(1)(a)(ii) of the

Essential Commodities Act. The trial Court found the Appellant guilty as charged, convicted and sentenced him to undergo rigorous imprisonment

for four months and also to pay a fine of Rs. 500 in default to undergo two months R.I.

The brief facts which led to the prosecution can be narrated as follows: P.W.5. ThiruKalyanam, Inspector of Police, Civil Supplies, C.I.D.,

Thiruchirappalli, inspected premises No. 24/6, Nawab Thottam, Woriyur, at 5 P.M., on 23-4-1983 and found one Duraisami and Rajendran

stitching separately two cement bags in two different rooms. P.W.5 inspected the premises on the information that adulterated cement was being

sold there. He seized from the possession of Duraisami 13 bags of cement and also seized nine bags of cement from the possession of Rajendran.

Another half a bag of cement which was lying in the verandah of the premises was also seized. The seizures were made under a mahazar Ex.P4,

attested by P.W.3, who is the neighbouring shop keeper in the same building.

To connect the Appellant with this crime it is the prosecution case that he had taken the two rooms from where the cement had been seized on

tenancy from P.W.2, Thiru Loganathan, the owner of the building. P.W.1 Thiru Nachimuthu, is a relation of the Appellant, who is said to have

persuaded P.W.2 to let the two rooms to the Appellant on a monthly rental basis. P.W.3, a cotenant of the Appellant seeks to implicate him by

deposing that he had purchased a bag of cement from the Appellant earlier for repairing the flooring of his company.

P.W.5 sent the seized cement to the trial Court for being forwarded for chemical analysis to find out, whether the seized cement conformed to

the standards prescribed in the Cement (Quality Control) Order. Ex.P4 is the report sent by the Joint Director of Industries and Commerce which

indicates that analysis had been conducted, referable to specification of I.S. 269-76 and I.S. 1489- 76, relating to Portland Cement and Portland

Pozzolana cement. The report shows that the analysis was done in the Chemical Testing and Analytical laboratory, Industrial Estate, Guindy, which

appears to be attached to the Department of Industries and Commerce, Government of Tamil Nadu.

Since the report Ex.P4 stated that the sample was adulterated cement, prosecution was launched against the Appellant, Duraisami and

Rajendran. In view of the fact that Duraisami and Rajendran were absconding, the case against them was split up and the trial Court proceeded

against the Appellant in S.T.C. No. 9 of 1984 leading to his conviction and sentence. Aggrieved by the judgment of the trial Court, this appeal has

been preferred.

Mr. G.K. Selvarajan appearing for the Appellant contended that since the sample had been tested only for two varieties, leaving rest of the eight

varieties prescribed in the Cement (Quality Control) Order a conviction will not be feasible, because the prosecution cannot pick and choose one

or two varieties, for test, when there was no material on record about the nature, substance or quality of the cement regarding the variety it

purported or represented to be. The second ground urged is that there was no proper proof that the Appellant was the tenant under P.W.2 and

hence, possession of the cement bags cannot be traced to the Appellant. The third ground is that Ex.P4 will not be admissible in evidence without

the examination of the Joint Director of Industries and Commerce who is the author of the report. It is doubtful whether Ex.P4 can be marked

without the examination of its author u/s 293 of the Code of Criminal Procedure.

I have heard Thiru Kannappa Rajendran appearing for the State on all these aspects.

I find sufficient force in the first contention of the learned Counsel for the Appellant. It is very clear that the sample has been tested only for

specifications I.S. 269-76 for Portland Cement and I.S. 1489-76 for Portland Pozzolana cement. Before it could be concluded that the cement

was not of the prescribed standard, the prosecution will have to explain that the seizure did not come within the 10 standards mentioned in Cl.2 (b)

of the Cement (Quality Control) Order, 1962. It may be possible to restrict with any particular test or one or more of them, when there is evidence

in the case as to what variety the cement belonged or what it was purported or represented to be. In this case, there is absolutely no evidence as to

the nature and quality of the cement, which was seized, either in the oral evidence or in the seizure mahazar. Therefore, it was incumbent to have all

the 10 tests conducted before the launching of the prosecution for otherwise, it will not be possible to convict the Appellant on the basis of a

truncated report of the analyst.

The second contention of the learned Counsel for the Appellant has also sufficient strength. P.W.2, the landlord of the premises, has not stated

during investigation, as admitted by P.W.5, that the Appellant had taken the two rooms on a rental basis one year prior to the incident. P.W.2 has

also admitted that there is no tenancy agreement and he had also not issued any receipt for the payment of rent. I am of the view that the admission

of P.W.2 coupled with his statement during investigation about the tenancy of the Appellant under him erases the basis or foundation for this

prosecution. The Appellant is bound to succeed on this point as well.

Cement (Quality Control) Order 1962 does not contain any provision to make the report of the analyst the Joint Director of Industries and

Commerce in this case, admissible in evidence, without his being examined in Court. However, a reference to Section 293 of the Code of Criminal

Procedure will have to be made to find out if Ex.P4 could be admitted in evidence without the examination of the Joint Director of Industries and

Commerce. Section 293 Sub-clause (c) of the Code of Criminal Procedure permits receipt in evidence the report of the Director, Deputy Director

or Assistant Director of a Central Forensic Laboratory or State Forensic Laboratory without the examination of the author of report concerned,

but, before that could be done, there must be proof that the Chemical Testing and Analytical laboratory mentioned in Ex.P4 is a State Forensic

Science laboratory. There is no evidence on this aspect. It may or may not be that this Chemical Testing and Analytical Laboratory is a State

Forensic Science Laboratory. The prosecution must have either let in evidence on this aspect or put the Joint Director of Industries and

Commerce, the author of Ex.P4, in the witness box. However, I am not basing my conclusions in this appeal on the last ground, though I find

sufficient force in this contention as well,

In view of the reasoning aforementioned, the appeal is bound to succeed. The appeal is allowed, the conviction and sentence imposed by the

trial Court on the Appellant are set aside and he is acquitted. Fine, if any, paid shall be refunded.