Elumalai and four Others vs State

Janarthanam, J.—The appellant No.2 to 6 and first accused (acquitted) were prosecuted for violation of Clause 3 of the Cement Quality Control Order 1962, (for short ''the Order'') punishable u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955. (for short ''the Act'') in ITC No. 58 of 1984 on the file of the Special Judge (Under E.C. Act) Madras. Accused 2 to 6 alone were found guilty for the aforesaid offence convicted thereunder and sentenced to imprisonment for three months rigorous imprisonment and a fine of Rs. 100/- each, in default rigorous imprisonment for 15 days. The appeal is against the said conviction and sentence.

The succinct facts leading to the filing of this appeal are: P.W.3, the Inspector of Police, Civil Supplies, C.I.D., Madras, on some special information raided the premises going by the name ''Bai shed'' situate at Anna Street, Kalpalayam village, on 20.8.1983. During the course of raid he found accused 2 to 6 actually mixing stone powder with good cement. Already they kept 79 bags of adulterated cement and stitched in gunny bags. The adulterated cement was on the floor to the extent of 22 bags. There were available 21 bags of good cement, besides 59 bags of stone powder. Certain empty gunny bags were also available. The accused 2 to 6 were also found in possession of implements for stitching the bags. All those materials were seized under the cover of a mahazar Ex.p.2 in the presence of witnesses. Thereafter P.W.3 arrested the accused 2 to 6 and registered the case in Crime No. 131 of 1983 for the alleged offence under clause 3 of the order read with Section 7(1)(a)(ii) of the Act and another first accused who was subsequently acquitted.

During the course of the raid he also took sample of adulterated cement and sent the same for the purpose of analysis to P.W.2 - the Government Analyst. On analysis, P.W.2 sent report Ex.P.1 stating that the sample sent to him for the purpose of analysis was found adulterated.

P.W.3 after completing the formalities of investigation, filed a final report u/s 173 (2) of Crl.P.C., against the accused 1 to 6 for the aforesaid offence, which was taken on file in the above said summary trial case.

Learned Special Judge, on consideration of the materials placed before him, acquitted the first accused and found guilty accused 2 to 6 for the offence with which they stood charged, convicted and sentenced them as aforesaid, giving rise to the present appeal.

Learned counsel for the appellants would be rest contend in making the lone and sole submission that since the Government Analyst did not at all perform the ten tests as prescribed under clause 2(b) of the Order, the conviction and sentence of the appellants 2 to 6 are not at all sustainable, in as much as it is not possible to exclude the possibility of the appellants saying that the cement in respect of which samples were taken out does not belong to the varieties in respect of which analysis was made in the sense of the sample belonging to some other varieties.

Learned Government Advocate would however repel such submission.

The evidence of the Government Analyst P.W.2 coupled with Ex.P.1 would point out that he had conducted only two tests related to ordinary Portland cement and Portland Pozzo lana cement. It will not be possible to conclude that the cement from which sample had been taken, belongs to the other variety of cement, in respect of which tests had not at all been conducted. In this view of the matter, it cannot at all be stated that cement from which sample had been taken is not conforming to the standard and the same was adulterated.

In view of what has been stated above, I am of the view that it would not be safe to convict the appellants 2 to 6 on the basis of the perfunctory report of the Government Analyst. As such the conviction and sentence of the appellants are not sustainable in law.

In the result, the appeal is allowed, the conviction and sentence are set aside and the appellants are acquitted. The fine amounts if any paid by them, are directed to be refunded to them.