Rashid Ahmad vs State of U.P.

K.N. Ojha, J.—Instant revision has been preferred against the judgment and order dated 30.4.1987 passed by the learned Sessions Judge, Bijnor, dismissing, Rashid Ahmad v. State Criminal Appeal No. 19 of 1986 and confirming the order of conviction and sentence dated 4.3.1986 passed by the learned Special Judicial Magistrate, Nagina District Bijnor, in, State v. Rashid Ahmad Criminal Case 38 of 1986 and Khurshid Ahmad by which Rashid Ahmad, revisionist was held guilty u/s 3 of the Essential Commodities Act read with Rules 3 and 9 (2) of U. P. Cement Control Order, 1972 and was sentenced to undergo R.I. of 6 months and fine of Rs. 1,000 was imposed and in case of default in payment of fine Rashid Ahmad had further to undergo two months'' R.I. The co-accused Khurshid Ahmad son of Rashid Ahmad was acquitted.

Heard Sri Ikram Ahmad, learned Counsel for the revisionist and Sri Anoop Ghosh, learned A.G.A. and have gone through the record.

The case against accused Rashid Ahmad is that in a surprise raid on 26.6.1981, 28 bags of cement were recovered from his house. He did not dispute the recovery of cement but he pleaded that he was working as a contractor in Tube-well department. 20 bags cement was issued to him on 5.6.1981 and 25 bags cement was issued to him on 18.6.1981 by the Tube-well department. He had used 17 bags of cement and remaining 28 bags of cement, which were to be used for construction work of the Tube-well department, was lying at his residence. Sub-Divisional Magistrate along with police party made search at his residence and recovered 28 bags. At the time when the raid was made Rashid Ahmad was not present at his residence and his son Khurshid Ahmad aged about 17 years was present, but he could not show papers of cement. Both were prosecuted and revisionist was convicted. F.I.R. Exhibit Ka-2 was lodged by Ram Bahadur, Sub-Divisional Magistrate, Nagina. In the F.I.R. it was written that when asked Khurshid said the cement was of his father. He was a contractor in Tube-well department and the cement was kept for construction of building of Tube-well department. 28 bags of cement was recovered but papers could not be shown.

Prosecution examined P.W. 1 Constable Bhure Singh, P.W. 2 Abdul Hale, Sub-Registrar and P.W. 3 Lalman Singh, retired Sub-Inspector. The revisionist examined Subhash Chand Sharma, a clerk in Tube-well department, Bijnor, who stated that permits of 20 bags and 25 bags cement vide Exhibit Kha-1 and Kha-2 were issued to Rashid Ahmad, which finds place in stock register. The order dated 13.11.1981 passed by the Collector, Bijnor, was also proved by him to show that this cement was given to Rashid Ahmad in compliance of the order of the Collector, Bijnor. Exhibit Ka-4, certified copy of certificate that Rashid Ahmad was contractor of Tube-well department, Bijnor, was filed and was also proved by the defence witness Subhash Chand Sharma.

A perusal of the judgments of both the courts below shows that the courts below held that when raid at the premises of the revisionist was made by the Sub-Divisional Magistrate, Khurshid Ahmad son of Rashid Ahmad was present but he could not produce any paper to show that it was the cement in respect of which allotment order was passed and permit was issued, but D.W. 1 Subhash Chand Sharma, who was clerk in Tube-well department stated that work of Tube-well department for construction of Nali was going on, therefore, 20 bags and 25 bags cement were issued to him. There was no accommodation of Tube-well department to store the cement, therefore, the contractors used to carry the cement, keep and look after it in their own premises. It was also stated that there was no Godown of Tube-well department. The revisionist also stated u/s 313, Cr. P.C. that the cement, which was recovered from his premises was issued by the Tube-well department for construction purposes. If the revisionist would have been present at his residence at the time when raid was made and 28 bags of cement was recovered, it could be said that he could not produce the papers. It is not expected from a boy of 17 years that he has knowledge about every transaction and documentary evidence, which is being dealt by his father, who is a contractor. In such circumstances if Khurshid Ahmad could not produce the papers of permit and allotment order before the Sub-Divisional Magistrate at the time of raid, on this ground it cannot be said that the plea of issuing of permit and allotment order was afterthought.

The learned A.G.A. has submitted that sale is prohibited by Essential Commodities Act read with Cement Control Order. In the instant case there is no evidence to show that the cement was stored for sale purposes because since very beginning it has been pleaded by the revisionist that the cement was stored for construction of Nali of Tube-well department. There is nothing on record to show that the revisionist was involved in purchase and sale of cement in an illegal manner.

The learned A.G.A. has also submitted that no paper was produced by the revisionist or his son to show that the 28 bags of cement were the same, which was issued to by the Tube-well department. If a person is punished and his liberty is taken away, the burden is on the prosecution to prove that the recovered article was the subject-matter of offence. If the prosecution had to say that it was not the cement issued by the Tube-well department then the burden was on the prosecution to prove this fact. Therefore, the revisionist cannot be held guilty because 28 bags of cement were not got identified.

The evidence that the time when raid was made Khurshid Ahmad had told that papers were with his father, itself shows bona fide conduct on the part of the revisionist and his son.

The learned A.G.A. has also submitted that permit of 45 bags cement was issued while only 28 bags cement was recovered. The recovery of part of total bags in respect of which permit was issued was made because part of the cement was utilized for construction purposes. It is not the case in which recovery was made of bags more than the bags in respect of permit was issued.

Subhash Chand Sharma, who was examined as D.W. 1 by the revisionist stated that he was clerk in Tube-well Division, Bijnor, since last 15 years. He knew Rashid Ahmad contractor because he used to visit his office. Construction work of Tube-well Sub-Division Nagina was given to the revisionist, which related to Tube-well No. 566 N.G. and 628 N.G. The order was passed on 1.6.1981, which finds place in the record. One receipt Exhibit Kha-1 dated 5.6.1981 through which 20 bags of cement was issued and the work order related to 1.6.1981. It contained signature of Junior Engineer Yogesh Chand Gupta, which was proved by Subhash Chand Sharma, Clerk of Tube-well Division, Bijnor. Another receipt dated 1.6.1981 relating to issue of 25 bags cement Exhibit Kha-2 issued under signature of Yogesh Chand Gupta was also proved. Thus, the Clerk of the Tube-well department proved the issue of 45 bags of cement. Extract of stock register Exhibit Kha-3 was also proved on which there was signature of Yogesh Chand Gupta on 23.6.1981, which was duly proved by the witness. An employee of Tube-well department cannot pick up courage to make false statement. Thus, his statement cannot be disbelieved.

When the cement, which was recovered by the Sub-Divisional Magistrate from the possession of the revisionist was material in respect of which permit was issued by Tube-well department, it was for construction work of the department and not for sale purposes, therefore, charge u/s 3/7 of the Essential Commodities Act read with Rules 3 and 9 (2) of Cement Control Order, 1972, is not proved against the revisionist.

The purpose of holding cement should be for sale for wrongful gain. If the material is issued under a permit for a particular purpose and use, the offence u/s 7 of the Essential Commodities Act is not committed. Instead of making specific findings on this point, both the courts below held the revisionist guilty merely because recovery of 28 bags cement was made from the premises of the revisionist. Thus, the statement of D.W. 1 Subhash Chand Sharma of Tube-well Division, Bijnor, was not appreciated in true spirit of law of Essential Commodities Act and Cement Control Order. Therefore, the judgments of both the courts below deserve to be set aside. Hence, revision succeeds.

The revision is allowed and judgments of both the courts below holding Rashid Ahmad guilty u/s 3/7 of the Essential Commodities Act and Rules 3 and 9 (2) of the Cement Control Order, 1972, are set aside.

The accused revisionist is acquitted from the charges u/s 3/7 of the Essential Commodities Act and Rules 3 and 9 (2) of the Cement Control Order, 1972. He is on bail. He need not surrender.