1 CRR-272-2019

HIGH COURT OF MADHYA PRADESH BENCH GWALIOR

SB : Justice G.S. Ahluwalia

Criminal Revision No.272/2019

Shreekrishan KushwahVs.

State of Madhya Pradesh

------------------------------------------------------------------------------------Shri Sanjay Bahirani, counsel for the applicant.Shri B.M. Patel, Public Prosecutor for the respondent/State.------------------------------------------------------------------------------------

Date of hearing : 29.01.2019Date of order : 14.02.2019Whether approved for reporting : Yes/No

O R D E R(Passed on 14/02/2019)

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

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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.

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(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

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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

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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 isapparent that Section 15 gives independent power tothe authority concerned to confiscate the articles, asmentioned thereunder, even before the guilt iscompletely established. This power can be exercisedby the officer concerned if he is satisfied that the saidobjects were utilised during the commission of aforest offence. A protection is provided for theowners of the vehicles/articles, if they are able toprove that they took all reasonable care andprecautions as envisaged under sub-section (5) ofSection 15 of the Adhiniyam and the said offence wascommitted without their knowledge or connivance.

23. Criminal prosecution is distinct fromconfiscation proceedings. The two proceedings aredifferent and parallel, each having a distinct purpose.The object of confiscation proceeding is to enablespeedy and effective adjudication with regard toconfiscation of the produce and the means used forcommitting the offence while the object of theprosecution is to punish the offender. The scheme ofthe Adhiniyam prescribes an independent procedurefor confiscation. The intention of prescribing separateproceedings is to provide a deterrent mechanism andto stop further misuse of the vehicle.”

24. At the cost of repetition we clarify thatconfiscatory proceedings are independent of the maincriminal proceedings. In view of our detaileddiscussion in the preceding paragraphs we are ofopinion that High Court as well as the revisionalcourt erred in coming to a conclusion that the

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confiscation under the law was not permissible unlessthe 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

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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 whois capable of providing information by way ofdeposing as regards relevant facts, via an oralstatement, or a statement in writing, made or givenin the court, or otherwise. In Pradeep NarayanMadgaonkar v. State of Maharashtra this Courtexamined the issue of the requirement of theexamination of an independent witness, andwhether the evidence of a police witness requirescorroboration. The Court therein held that the samemust be subject to strict scrutiny. However, theevidence of police officials cannot be discardedmerely on the ground that they belonged to thepolice force, and are either interested in theinvestigating or the prosecuting agency. However,as far as possible the corroboration of their evidenceon material particulars, should be sought. (See also

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Paras Ram v. State of Haryana, Balbir Singh v.State, Kalpnath Rai v. State, M. Prabhulal v.Directorate of Revenue Intelligence and Ravindranv. Supt. of Customs.)

36. Thus, a witness is normally consideredto be independent, unless he springs from sourceswhich are likely to be tainted and this usually meansthat the said witness has cause, to bear such enmityagainst the accused, so as to implicate him falsely.In view of the above, there can be no prohibition tothe effect that a policeman cannot be a witness, orthat 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

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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

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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 courtwith the power to call for and examine the recordsof an inferior court for the purposes of satisfyingitself as to the legality and regularity of anyproceedings or order made in a case. The object ofthis provision is to set right a patent defect or anerror of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for thecourt to scrutinise the orders, which upon the faceof it bears a token of careful consideration andappear to be in accordance with law. If one looksinto the various judgments of this Court, it emergesthat the revisional jurisdiction can be invokedwhere the decisions under challenge are grosslyerroneous, there is no compliance with theprovisions of law, the finding recorded is based onno evidence, material evidence is ignored or judicialdiscretion is exercised arbitrarily or perversely.These are not exhaustive classes, but are merelyindicative. Each case would have to be determinedon its own merits.

13. Another well-accepted norm is that therevisional jurisdiction of the higher court is a verylimited one and cannot be exercised in a routinemanner. One of the inbuilt restrictions is that itshould not be against an interim or interlocutoryorder. The Court has to keep in mind that theexercise of revisional jurisdiction itself should notlead to injustice ex facie. Where the Court isdealing with the question as to whether the chargehas been framed properly and in accordance withlaw in a given case, it may be reluctant to interferein exercise of its revisional jurisdiction unless thecase substantially falls within the categoriesaforestated. Even framing of charge is a much

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advanced stage in the proceedings under the CrPC.18. It may also be noticed that the

revisional jurisdiction exercised by the High Courtis in a way final and no inter court remedy isavailable in such cases. Of course, it may be subjectto jurisdiction of this Court under Article 136 of theConstitution of India. Normally, a revisionaljurisdiction should be exercised on a question oflaw. However, when factual appreciation isinvolved, then it must find place in the class ofcases resulting in a perverse finding. Basically, thepower is required to be exercised so that justice isdone and there is no abuse of power by the court.Merely an apprehension or suspicion of the samewould not be a sufficient ground for interference insuch cases.

20. The jurisdiction of the court underSection 397 can be exercised so as to examine thecorrectness, legality or propriety of an order passedby the trial court or the inferior court, as the casemay be. Though the section does not specificallyuse the expression “prevent abuse of process of anycourt or otherwise to secure the ends of justice”, thejurisdiction under Section 397 is a very limited one.The legality, propriety or correctness of an orderpassed by a court is the very foundation of exerciseof jurisdiction under Section 397 but ultimately italso requires justice to be done. The jurisdictioncould be exercised where there is palpable error,non-compliance with the provisions of law, thedecision is completely erroneous or where thejudicial discretion is exercised arbitrarily. On theother hand, Section 482 is based upon the maximquando lex aliquid alicui concedit, concederevidetur id sine quo res ipsa esse non potest i.e.when the law gives anything to anyone, it also givesall those things without which the thing itself wouldbe unavoidable. The section confers very widepower on the Court to do justice and to ensure thatthe process of the court is not permitted to beabused.”

(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:-

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“11. First, we shall dwell upon the issuewhether the High Court, in exercise of the revisionaljurisdiction, should have adverted to the merits of thecase in extenso. As the factual matrix would reveal,the learned Single Judge has dwelled upon in greatdetail on the statements of the witnesses to arrive atthe conclusion that there are remarkablediscrepancies with regard to the facts and there isnothing wrong with the investigation. In fact, he hasnoted certain facts and deduced certain conclusions,which, as we find, are beyond the exercise ofrevisional jurisdiction. It is well settled in law thatinherent as well as revisional jurisdiction should beexercised cautiously. Normally, a revisionaljurisdiction should be exercised on a question of law.However, when factual appreciation is involved, thenit must find place in the class of cases resulting in aperverse finding. Basically, the power is required tobe exercised so that justice is done and there is noabuse of power by the Court. (See Amit Kapoor v.Ramesh Chander.)

12. Judging on the aforesaid premises, wehave no shadow of doubt that the High Court hasadverted to the facts not to see the perversity ofapproach, or to see that justice is done, but analysedit from an angle as if it is exercising the appellatejurisdiction. Therefore, the High Court’s conclusionwith 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 examinedthe scope of Sections 397/401 CrPC and the groundfor exercising the revisional jurisdiction by the HighCourt. In State of Kerala v. Puttumana IllathJathavedan Namboodiri, while considering the scopeof the revisional jurisdiction of the High Court thisCourt has laid down the following: (SCC pp. 454-55,para 5)

“5. … In its revisional jurisdiction, theHigh Court can call for and examine the recordof any proceedings for the purpose of satisfyingitself as to the correctness, legality or proprietyof any finding, sentence or order. In otherwords, the jurisdiction is one of supervisory

13 CRR-272-2019

jurisdiction exercised by the High Court forcorrecting miscarriage of justice. But the saidrevisional power cannot be equated with thepower of an appellate court nor can it be treatedeven as a second appellate jurisdiction.Ordinarily, therefore, it would not beappropriate for the High Court to reappreciatethe evidence and come to its own conclusion onthe same when the evidence has already beenappreciated by the Magistrate as well as theSessions Judge in appeal, unless any glaringfeature is brought to the notice of the HighCourt which would otherwise tantamount togross miscarriage of justice. On scrutinising theimpugned judgment of the High Court from theaforesaid standpoint, we have no hesitation tocome to the conclusion that the High Courtexceeded its jurisdiction in interfering with theconviction of the respondent by reappreciatingthe oral evidence. …”13. Another judgment which has also been

referred to and relied on by the High Court is thejudgment of this Court in Sanjaysinh Ramrao

Chavan v. Dattatray Gulabrao Phalke3. This Courtheld that the High Court in exercise of revisionaljurisdiction shall not interfere with the order of theMagistrate unless it is perverse or whollyunreasonable or there is non-consideration of anyrelevant material, the order cannot be set asidemerely 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 theMagistrate is perverse or the view taken by thecourt is wholly unreasonable or there isnonconsideration of any relevant material orthere is palpable misreading of records, theRevisional Court is not justified in setting asidethe order, merely because another view ispossible. The Revisional Court is not meant toact as an appellate court. The whole purpose ofthe revisional jurisdiction is to preserve thepower in the court to do justice in accordancewith the principles of criminal jurisprudence.The revisional power of the court underSections 397 to 401 CrPC is not to be equatedwith that of an appeal. Unless the finding of the

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court, whose decision is sought to be revised, isshown to be perverse or untenable in law or isgrossly erroneous or glaringly unreasonable orwhere the decision is based on no material orwhere the material facts are wholly ignored orwhere the judicial discretion is exercisedarbitrarily or capriciously, the courts may notinterfere with decision in exercise of theirrevisional 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.

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(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.

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(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.

(G.S. Ahluwalia) Judge

Abhi