Criminal Appeal No. 274-SB of 1986

20th August, 1992.

Petitioner Counsel: Mr. J. R. Mittal, Sr. Adv. with Mr. Baldev Singh,
Respondent Counsel: Mr. P. S.Thiara, AAG, Punjab, .

Cases Cited:
Crl. Appl. No.183/DBA of 1987,D/-13-7-l992 (P and H) [Para 13]
1991 (2) Pun LR 541 [Para 13]
1985 (1) Chand LR 167 (P and H),1984 Chand Cri C 379 (Rel. on) [Para 11]
1970 Cri LJ 750,AIR 1970 SC 713 (Rel. on) [Para 11]

JUDGMENT

Joginder Singh appellant was held guilty of the charge punishable under S. 7 of the Essential Commodities Act read with Cl. 3(1) of the Inter-Zonal Wheat and Wheat Products (Movement Control) Order, 1964 by the learned Addl. Sessions Judge, Sangrur exercising the powers of the Special Judge under the provisions of Essential Commodities Act and awarded sentence of two years' R. I. and fine of Rs. 500 / - or in default of payment thereof, to further suffer three months' R. I. The wheat was ordered to be confiscated to the State. Feeling aggrieved against the said orders of conviction and sentence, the accused has come up in appeal.

2. In brief the facts of the prosecution case are that on 11th October, 1982, Kashmira Singh Sub-Inspector of Food and Civil Supplies Department posted at Chural Kalan barrier on the boundary of the States of Punjab and Haryana intercepted with the help of Constable Kulwant Singh, a tractor trolly carrying wheat towards the barrier. Hardial Singh accused (since acquitted) was driving the tractor while Joginder Singh appellant was sitting by the side of the driver. The trolly was loaded with loose wheat besides with 12 small bags of wheat. The accused failed to produce any permit for exporting the wheat out of Punjab. Kashmira Singh Sub-Inspector then sent intimation Ex. PA at 7 p.m. to the police of Police Station, Munak through Constable Kulwant Singh on the basis of which formal F.I.R. Ex. PA/ I. was recorded at the police station at 7. 30 p. m. on that day. A case under S. 7 of the Essential

Commodities Act was registered against the accused. ASI Balwant Singh along with other police officials then arrived at the spot. The wheat on weighment came to 30 quintals. The tractor trolly and the wheat were taken in possession vide memo Ex. PB. He also prepared rough site plan Ex. PC of the spot and arrested the accused. The statements of the witnesses were recorded.

3. After completion of investigation, the accused was arraigned for trial on such like allegations.

4. Before the trial Court in order to prove its above referred case, the prosecution examined four witnesses. SI Kashmira Singh PW 1 and Constable Kulwant Singh PW2 supported the above referred ocular version while ASI Balwant Singh proved the investigation conducted by him and AMHC Sadiq Ali PW 4 proved daily diary report No. 29 Ex. PD dated 22-4-1983.

5. The version of Hardial Singh coaccused of the appellant before the trial Court in his statement under S. 313, Cr. P.C. was that of innocence and false implication contending that he was not driving the tractor at the time of its seizure and recovery of wheat but in fact his brother Amar Singh was driving the tractor and Joginder Singh was sitting by him when they were arrested but later on it transpires that since the registration certificate of the tractor was in his name and that of Joginder Singh, the aforesaid Amar Singh was arrested by depicting his name as Hardial Singh. He also maintained having remained in Jail after his arrest while Amar Singh also was detained in the Jail and got himself bailed out in the name of Hardial Singh. Joginder Singh appellant also denied the prosecution allegations but maintained that he along with his brother Amar Singh were present on the tractor trolly which was apprehended at a distance of one mile from the barrier. Amar Singh was driving the tractor. He also maintained that they were carrying the wheat produced by them on their own land to deliver it to Malkit Singh Gram Sewak at village Munak. He also stated that Hardial Singh co-accused was never arrested by the police nor was sent to Jail. The bail order of Amar Singh was obtained by giving his name as Hardial Singh and that Hardial Singh never signed any police papers.

6. In defence, the accused examined Dewan K. S. Puri Document Expert D.W. 1 who after examining thumb impressions Q-l on the search memo opined that it does not tally with the thumb impressions of Hardial Singh co-accused but with the thumb impressions of the left thumb of Amar Singh. Balbir Singh Sarpanch D.W.2 of village Kunran also stated about the accused being his co-villager and that they had another brother named Amar Singh. Malkiat Singh Gram Sewak, Agriculture Inspector appeared as DW3 and supported the above referred version of the accused.

7. The trial Court, however, believing the prosecution evidence convicted and sentenced Joginder Singh accused-appellant as stated above while Hardial Singh co-accused of the appellant was acquitted by holding that he was not driving the tractor but his brother Amar Singh was doing so.

8. I have heard the learned counsel for the parties besides perusing the record.

9. No doubt, the trial Court had first given show cause notice to the accused on 1st September, 1983 for violating the provisions of Punjab Wheat Dealer's Licencing Order, 1982 and thus committed an offence under S. 7 of the Essential Commodities Act but later on vide order dated 24th April, 1986 the charge was reframed for violation of the provisions of clause 3(1) of the Inter Zonal Wheat Products (Movement Control) Order, 1964 but since in the year 1964 Haryana State has not come into existence but was created on 1 st November, 1966, there is no question of violation of the provisions of the said Order as the present area of Haryana State as well as other area of Punjab were part of the same State and same wheat zone, yet all the same, it is of no consequence as no prejudice had occurred to the accused due to the above referred defective charge because the witnesses

had been cross-examined effectively keeping in view that the {States of Haryana and Punjab were separate and that the wheat was being taken from Punjab towards Haryana barrier. As a matter of fact, the accused had violated the provisions of clause 3 of the Inter-Zonal Wheat and Wheat Products (Movement Control) Order, 1973 wherein State of Punjab and Union Territory form one zone while the State of Haryana a dferent zone. Consequently, I find no force in this contention of the learned counsel for the appellant that entire trial has been vitiated due to non-framing of proper charge.

10. Mr. Mittal on the strength of the Single Bench of this Court in Harchand Singh v. The State of Punjab 1985 (1) Chand LR 167 contends that the possibility of the accused changing their mind before crossing the border cannot be ruled out and thus it was not an attempt on their part to export the wheat out of the zone but at the-most, it was a preparation for doing so which is not punishable. There is sufficient force in this contention as the provisions of clause 3 of the said order prohibit the export or attempt to export or abet the export of wheat or any other wheat product from one zone to another except with the permission in writing of the Central Government or of an officer authorised in that behalf by the Central Government. In the case in hand, according to S. I. Kashmira Singh, the tractor trolly was apprehended about 15/20 paces from the Haryana border in the area of village Chural Kalan. Thus the reasonable possibility cannot be ruled out that the accused alight have changed their mind for exporting wheat out of the Punjab zone. Therefore, it cannot be said that they had attempted to export wheat out of this zone.

11. The Apex Court also in Malkiat Singh v. The State of Punjab, AIR 1970 SC 713 : (1970 Cri LJ 750) had taken a similar view by holding under S.3 of the Punjab Paddy (Export Control) Order, 1959 that preparation to commit an offence is not but only an attempt to export is punishable. In that case, a truck carrying 75 bags of paddy was intercepted at Samalkha barrier. The paddy was given to the Transport Company at Malerkotla (Punjab) for being transported to Delhi. Under these circumstances, it was held that at the most the act of the accused would amount to preparation for committing an offence of transporting the paddy and not attempt to export.

11a. There is also considerable force in the other contention of Mr. Mittal that Joginder Singh accused was not in possession of the wheat as he was sitting by the side of the driver driven by Amar Singh because only those persons who are either sitting on wheat on the trolly or the driver of the tractor can be said to be transporting the wheat and not a person who happened to sit by the side of the driver as reasonable possibility cannot be ruled out that he was merely having a lift on the tractor. The factum that according to the version of Joginder Singh appellant he and his brother Amar Singh were transporting this wheat to village Chural Kalan for delivering it to Malkiat Singh then Gram Sewak is of no consequence to infer that Joginder Singh was also transporting the wheat because this version of the accused is incapable of being disjuncted and has to be accepted or rejected as a whole.

12. Consequently, the order of conviction of the trial Court is not sustainable on this ground also.

13. Lastly, Mr. Mittal contends that the challan having been filed on 4th August, 1983 after the expiry of the period of six months, the provisions of S. 167 sub-section (5) of the Code of Criminal Procedure shall bar the Court from taking cognizance of the offence because the Investigating Officer had not taken any special permission of the Court for extension of time in the investigation of the case. He has relied upon the observations of the Division Bench of this Court in State of Haryana v. Rajinder Singh 1991 (2) Pun LR 540 in this regard. The provisions of S. 167(5) Cr. P.C, read as under :-

"Section 167

(1) to (4) xx xx xx xx

(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice, the continuation of the investigation beyond the period of six months is necessary.

(6) xx xx xx xx

A bare glance through the same leaves no doubt that only the investigation beyond the period of six months is barred and not the taking of the cognizance of the offence by the Court on the basis of evidence already collected during investigation before the said period of six months. While sitting in the Division Bench with B.S. Nehra, J. in Criminal Appeal No. 183 / DBA of 1987 State of Haryana v. Meer Singh disposed of on 13th July, 1992, we have taken a different view than the one taken by the Division Bench in Rajinder Singh's case (supra) as this authority was not brought to the notice of that Bench. Although this controversy is required to be settled by a Larger Bench of this Court yet all the same, since the appeal is being accepted on other grounds, there is no necessity to refer the case to the Larger Bench.

14. For the reasons recorded above, there is no option but to accept this appeal and acquit the appellant by setting-aside the orders of conviction and sentence. It is ordered accordingly. Fine if, paid, shall be refunded. The wheat or its sale proceeds shall be released to Joginder Singh appellant.

Appeal Allowed