Rangaraj vs State by C.B., C.I.D., Madras

Maheswaran, J.—The appellant is found to have violated Cl. 3 of the Cement (Quality Control) Order, 1962 (hereinafter referred to as the Order) which is an offence punishable under S. 7(1)(a)(ii) of the Essential Commodities Act, 1955. The appellant, Rangaraj, was found to have stored 102 bags of cement which are found to be of substandard on 22nd June, 1983 (wrongly stated as 22nd February, 1983 in the charge sheet) at the Hardware Shop named as Mehta Hardware Shop at No. 14, Bazaar Street, Mylapore, Madras-4. The cement was seized by P.W. 5 Inspector of Police, Civil Supplies, C.I.D., Madras, and the sample was sent for analysis and on analysis, it was found not to conform to the specification for Portland cement as per I.S. 269-76. In the opinion of the Analyst, the same is of substandard cement and could have been adulterated with siliceous. The learned trial Judge found the accused guilty of the offence with which he was charged and convicted and sentenced him to rigorous imprisonment for six months and imposed a fine of Rs. 1,000. The appellant challenges the conviction and the sentence.

The prosecution case is that the petitioner is a dealer in cement and that he was selling cement. There appears to be no evidence that the petitioner was dealing in cement. His books of accounts were not seized. But, however, the prosecution has examined P.W. 2 to prove that the appellant is a dealer in cement and selling cement but P.W. 2 is a rickshaw puller. Though he admitted earlier in cross examination that he has carried cement in his rickshaw from the shop of the appellant, he prevaricated immediately and stated that he has not carried cement earlier to the date of occurrence. He says that he does not know who purchased the cement bags. He states that his name is Suresh. P.W. 1 speaks only about the seizure. There fore, there is no clinching proof that the appellant is a dealer or that he was selling cement.

The next contention is that the sample was tested only for portland cement I.S. 269-76 and was also tested for portland pozzolana cement I.S. 1489-76 and that the other tests for finding out whether the cement seized is of the prescribed standard have not been done in this case. In this case, details are given in Ex. P3, the report of the Analyst, for port-land cement I.S. 269-76, but no details are given for the test done for portland pozzolana cement I.S. 1489-76 even though it is stated that the cement does not conform to the specifications. It is pointed by the Learned Counsel appearing for the appellant that the Analyst did the test only for one or two particular variety of cement mentioned in Cl. 2(b) of the Order. There is no evidence in this case as to what variety the cement that was tested belonged to. In the absence of any indication as to what variety the sample belonged to, the Analyst cannot test it for any particular variety. If it is stated that the sample is portland cement, then he can test is as per I.S. 269-76. If it is pozzolana cement, he has to test it as per I.S 1489-76. There are ten varieties of cement, but he has made the test for two varieties only. The Expert, in such circumstances, cannot test the sample of cement only for Portland cement and portland pozzolana cement leaving the rest. If there is no indication as to what variety the sample belongs to, it would be better the Analyst tests it for all the ten varieties of cement and not pick and choose one or two varieties even though usually portland cement is used for building purposes. In this case, there is not even any evidence that the cement was required for building purposes. Obviously, the Analyst has based his report only on two or three tests, because, according to him, the cement manufactured in this country is ordinary portland cement and portland pozzolana cement and portland slag cement. The Analyst was not aware of the fact whether three standards have been prescribed in the Cement (Quality Control) Order, 1962. He is not aware of the amendment. As standards for ten varieties of cements are prescribed in CI. 2(b) of the Order, it would be better for the Analyst that all the ten tests are conducted so as to eliminate the possibility of the appellant saving that the cement in respect of which a sample was taken, does not belong to the three varieties in respect of which analysis was made. As all the ten tests were not conducted, it would not be safe to convict the accused on the basis of the report of the Analyst. For these reasons, the appeal is allowed the conviction and the sentence are set aside and the appellant is acquitted. Fine, if any, paid, will be refunded.