ISLAMversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                  CRIMINAL APPEAL No. - 458 of 1987

Islam
                                                          .....Appellant(s)
                                  Versus

State of U.P.
                                                        .....Respondent(s)

Counsel for Appellant(s)            :   A.N. Bhargava, Sanjay Singh
Counsel for Respondent(s)           :   A.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Sri Sanjay Singh, learned counsel for the appellant and Sri Rahul
Asthana, learned A.G.A. for the State.

2. This criminal appeal has been filed against the judgment and order
dated 29.01.1987, passed by Special Judge (Economic Offences), Agra in
Criminal Case No.2 of 1985, convicting and sentencing the appellant to
undergo six months R.I. under Section 3/7 of E.C. Act.

3. The prosecution case, in brief, is that on 15.05.1984, Sub-Inspector
Hardas Verma of Police Outpost Sarai Khawaja, Police Station-
Shahganj, has recovered four canisters of kerosene oil and one canister
containing two liters of kerosene oil and one glass bottle for measurement
from the shop of the accused Islam. He arrested the accused and took into
his possession the above material. Recovery memo was prepared on spot.
On the basis of recovery memo chik FIR was registered as Case Crime
No.291 under Section 3/7 of E.C. Act and G.D. entry was drawn. The
case was investigated by S.I. N.M. Sharma, who prepared the site plan,
took sanction for prosecution from the District Magistrate, Agra. After
investigation of the case, the charge-sheet was submitted.

4. Charge was framed and read over to the accused and the accused
denied his involvement in the crime and claimed to be tried.

5. The prosecution, in support of its case, has produced P.W.-1 Hardas
Verma, who has supported the prosecution version. Documentary
evidences namely recovery memo Ext. Ka-1, FIR Ext. Ka-2, carbon copy
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                               2


of G.D. Ext. Ka-3, site plan Ext. Ka-4, charge-sheet Ext. Ka-5, sanction
for prosecution Ext. Ka-6 and Ex. K-7 entry of Malkhana Register, are
available on record.

5. After hearing the arguments and considering the evidence on record,
the trial court convicted the accused for offence under Section 3/7 of E.C.
Act and sentenced him to undergo rigorous imprisonment for six months.

6. Learned counsel for the appellant submitted that the conviction of the
appellant is based on testimony of the sole interested witness P.W.-1
Hardas Verma, without any corroboration, the case property itself is
doubtful. No sample of kerosene oil was taken and sent for chemical
examination. The prosecution failed to establish the ownership or
existence of alleged shop of the appellant. No independent witness or
customer of the shop was examined, therefore, it is prayed that the
conviction and sentence of the appellant recorded by the trial court may
be set aside and the appellant be acquitted of the charges levelled against
him.

7. Learned A.G.A. for the State supports the conviction and sentence
recorded by the trial court.

8. The appellant was held guilty for committing the breach of clause 3 of
U.P. Kerosene Control Order, 1962, punishable under Section 3/7 of E.C.
Act. The trial court held that kerosene oil was stored for selling purpose
and the accused Islam was engaged in that business without any license.

9. Section 3 of the U.P. Kerosene Control Order, 1962 strictly restricts the
sale, or storage for sale of kerosene, which mandates that no person can
be engaged in these activities without a valid license granted by the
licensing authority of the district, where the business is conducted. It
reads as under :-

"No person shall sell or store for sale kerosene oil except under a license
granted by the licensing authority of the district in which he carries on
business."

10. The prosecution has examined only one witness, P.W.-1 S.I. Hardas
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Verma, the informant who deposed that he had recovered 4 canisters of
kerosene from the shop of the appellant and deposited the same in the
Malkhana. However, when the case property was produced before the
Court, it was found that one of the canisters containing Ghee instead of
kerosene oil. P.W.-1 Hardas Verma stated that although the crime number
of this case was mentioned on the canisters, the handwriting was not his.

11. The trial court overlooking this discrepancy, held that kerosene was
deposited in Malkhana on 15.05.1984 and it was produced before the
Court on 20.01.1987. There may be some lapse on part of Malkhana,
Moharrir, the other 3 canisters containing kerosene oil have not been
disputed. P.W.-1 Sub Inspector Hardas Verma has proved entries of
Malkhana Register as Ext. Ka-7, wherein it is mentioned that 4 canisters
containing kerosene oil and one canister containing two liters of kerosene
oil were deposited in Malkhana and proceeded to convict the appellant.

12. Upon perusal and examination of the record, this Court finds that the
prosecution case suffers from serious infirmities. The entire case rests on
the testimony of P.W.-1 Hardas Verma, who is informant and a Police
Officer.

13. While it is true that conviction can be based on the testimony of a
single witness, such testimony must be reliable and inspire confidence
which is not the case here.

14. A most glaring inconsistency arises from the case property itself. Out
of 4 canisters allegedly containing kerosene oil, one was found to contain
Ghee when produced before the Court. This creates serious doubt
regarding the integrity and identity of the recovered articles. The
explanation recorded by the trial court in this regard that the case property
might have been replaced during the gap of about two year is wholly
speculative and legally untenable. The prosecution is under a duty to
maintain the sanctity of the chain of custody and any break therein strikes
at the root of the case.

15. Further, no sample of the alleged kerosene oil was taken nor was it
sent for any chemical examination. In absence of such scientific or
corroborative evidence, it cannot be conclusively held that the seized
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                                    substance was, in fact, kerosene oil.

                                    16. The prosecution has also failed to establish that the appellant was
                                    running any shop at the alleged place. No documentary evidence, site plan
                                    details or independent witness has been produced to substantiate this fact.

                                    17. Significantly, no independent witness or customer has been examined
                                    to prove that the appellant was dealing in kerosene oil or selling the same
                                    without a license. The defence taken by the appellant under Section 313
                                    Cr.P.C.,alleging false implication due to enmity, though not required to be
                                    proved beyond doubt, gains probabilities and supports the weakness in the
                                    prosecution case.

                                    18. It is a principle of criminal jurisprudence that the prosecution must
                                    prove its case beyond reasonable doubt, and the benefit of doubt must go
                                    to the accused. In the present case, the cumulative effect of discrepancies,
                                    lack of corroboration and doubtful case property create serious and
                                    reasonable doubt in prosecution case.

                                    19. This Court is of the considered view that the prosecution has failed to
                                    establish the guilt of the appellant beyond reasonable doubt. The
                                    conviction recorded by the trial court is based on conjunctures and
                                    surmises and cannot be sustained in law. The appeal deserves to be
                                    allowed.

                                    20. Accordingly, the appeal is allowed.

                                    21. The judgment of conviction and sentence dated 29.01.1987 passed by
                                    Special Judge (Economic Offences) under Section 3/7 of E.C. Act is
                                    hereby set aside and appellant is acquitted of the charges levelled against
                                    him. The appellant is on bail. His bail bonds are cancelled and sureties
                                    are discharged.

                                    22. Let a copy of this judgment along with trial court be sent back to the
                                    concerned trial court forthwith.



                                                                               (Mrs. Vani Ranjan Agrawal,J.)
                                    February 10, 2026
                                    P. Pandey




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad