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Report No. 47

5.28. Want of evidence.-

A prosecution may fail for want of evidence.

A Supreme Court judgment1 illustrates how a prosecution under the Essential Commodities Act may fail for want of evidence. It was a charge of storage of an essential commodity for business, in violation of the Manipur Foodgrains Dealers Licensing Order (1958), clauses 3(2), 3(1). But the fact that the storage was for the purpose of business, was not proved by independent evidence. It was held that there could be no conviction under section 7, on the basis of mere presumption under clause 3(2) of the Order, without evidence of the purpose of storage as above.

1. Manipur Administration v. M. Nilla Chandra Singh, (1964) 5 SCR 574: (1964) 2 SCJ 444: 1964 (2) Cr LJ 495: AIR 1964 SC 1533 (1535, 1536).

5.29. Failure to maintain account-books properly was the subject-matter of the charge in a Rajasthan case1. It was held that the offence fell under section 3(2)(i) read with section 7(1)(a)(i), Essential Commodities Act. It was a non-cognizable offence, and must be tried as a summons case. Hence, the trial should proceed as a summons case. (In this particular case, the trial had proceeded only upto the stage of charge. Hence the charge was quashed, and the Magistrate directed to proceed as in a summons case).

1. Gyasiram v. State, AIR 1964 Raj 237 (239), para. 9.

5.30. A Supreme Court case1 under sections 8(1) and 23A, Foreign Exchange Act illustrates the need for sufficient evidence. In that case, adjudication proceedings were quashed for want of evidence.

1. Hind Trading Co. v. Union of India, AIR 1970 SC 1858 (1863), paras. 12-13 (Certiorari issued).

5.31. A recent Andhra Pradesh case1 illustrates failure of a prosecution because of want of proof. (There were other defects also, but they are not material). In that case, suspected contraband gold had been seized from the accused, but there was no proof that it was contraband. The prosecution relied on the presumption in section 123(1), Customs Act, 1962, whereunder where any goods to which the section applies are seized under the Act "in the reasonable belief" that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. In this case, it was not proved that the officer who had seized the goods was competent to do so. Apart from that, however, there was another defect-the seizing officer had simply suspected, and did not have reason to believe, that the accused was carrying smuggled goods. Following a Bombay case2, which had emphasised that the officers must have acted in reasonable belief, the High Court upheld the acquittal.

1. P.P. v. Babulal, AIR 1971 AP 345 (346).

2. M.G. Abrol v. Amichand, AIR 1961 Born 227 (Shah J.).

5.32. Inadequacy of the punishment provided in the law.-

The punishment provided in the law may be inadequate. Such a situation, of course, requires legislative action.

5.33. Inadequacy of the sentence actually awarded although, the range of punishment as given in the Act may be adequate.-

The punishment awarded may be mild. Such a situation, obviously, does not necessitate any statutory amendment.

5.34. Administrative difficulties, such as, want of adequate enforcement staff required for detecting, investigating, prosecuting and otherwise dealing with the offences under the relevant Act.-

There may be administrative difficulties in enforcement of the particular Act such as want of adequate enforcement staff required for detecting, investigating, prosecuting and otherwise dealing with offences under the Act.

5.35. In conclusion, it may be stated that the most significant feature of the prosecution process, is undoubtedly the difference between the Departmental Inspector's view of the case and that which, in the event, he is able to give to the magistrate. The inspector's view of the case is obviously coloured by his involvement in what may have been a lengthy series of visits and discussions with the accused and by his knowledge of the past history of the dealings with the accused over the previous five or six years. The magistrate, on the other hand, is only permitted to hear the details of the particular incident with which the proceedings are concerned, and in addition he must pay some attention at least to the mitigating circumstances which defence counsel will put before him.

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