BHARGAVA, J. - (1.)THIS is an application in revision by Mahavir Parshad against his conviction under sec. 7 read with sec. 3 of the Essential Commodities Act for contravention of Clause (3) of the Rajasthan Food-grains (Restriction on Boarder Movement) Order, 1959 as amended by the Rajasthan Food-grains (Restriction on Border Movement) Order, 1965. Clause (3) is as follows: Restrictions on the movement of food-grains to within the internal border area. No person shall transport, attempt to transport or abet the transport of food-grains: (a) to any place in the internal border area from any place outside that area; or (b) from any place in the internal border area to any other place in that area, except under and in accordance with a permit issued by the State Government or any officer authorised by that Government in this behalf. Provided that nothing contained herein shall apply to the transport of food-grains within the district of Shri Ganganagar. ''internal border area" has been defined under clause 2 (bb) of the Order and means the area within the State of Rajasthan lying within a ten-mile belt all along the border of that State adjoining the States of Punjab, Uttar Pradesh, Madhya Pradesh, Maharashtra and Gujrat. " Cognisance of the case was taken on the report of the Station House Officer, Singhana. The report also states the facts constituting the offence. It states that the petitioner was driving truck No. RJ-V 532 which was laden with bags of Jawar at the time it was checked while proceeding along the bus-route to Narnol from Singhana i. e. , towards border of Punjab. Sec. 12-A of the Essential Commodities Act, 1955 authorises a summary trial of the offence alleged. The learned Additional District Magistrate, Jhunjhunu therefore, held a summary trial in the case. After trial he came to the conclusion that 55 bags of Jawar were being transported from Singhana which is in the internal border area to another place in that area in the truck driven by the petitioner on the night between 7th and 8th March, 1965. He found that the bags of Jawar were loaded in the truck at the shop of Madanlal co-accused who had no permit for transporting the food-grains. As regards the petitioner the learned Additional District Magistrate found that he abeted the offence inasmuch as he was carrying the food-grains in the truck. Besides the petitioner there were some more persons in the truck who were also prosecuted out of whom five were also convicted for abetment of the offence. The petitioner was sentenced to one month's rigorous imprisonment and to a fine of Rs. 500/ -. In addition truck No. RJV 532 was also ordered to be forfeited to the State. A revision was preferred by the petitioner against his conviction and sentence to the court of the learned Sessions Judge, Jhunjhunu, but it was rejected. The petitioner has therefore, come to this Court in revision and it has been contended on his behalf by his learned counsel that the trial of the petitioner was vitiated on the following grounds. (1) that the case was tried according to the procedure laid down in sec. 251a of the Code of Criminal Procedure and not according to the procedure provided in sec. 252 and the following sections. Reliance is placed on State of Madhya Pradesh vs. Baital Nahar Singh (1 ). (2) that the petitioner was not examined at all under sec. 342 of the Code of Criminal Procedure. (3) that the petitioner was not questioned regarding the main ingredient of the offence viz. , that he was transporting food-grains from any place in the internal border area to any other area and had therefore, no opportunity to show that the place where the truck was seized was not within the internal border area. It is also contended that there is no proof on the record that the place of seizure was in the internal border area. Lastly it is contended that the petitioner was only a carrier and the sentence passed against him was very severe. Reliance is placed on State vs. Kishenlal (2 ). It has also been contended that the order regarding the forfeiture of the truck was not warranted in the circumstances of the case.
(2.)THE first question therefore, to be determined is whether proper procedure was adopted by the learned Magistrate in holding the trial of this case according to the procedure laid down under sec. 251a of the Code of Criminal Procedure. Contention of the learned counsel is that the report of a police officer under sec. 11 of the Essential Commodities Act cannot be regarded as being one under sec. 173 of the Code to which only provisions of sec. 251a are attracted. In my opinion there is no force in this contention. Under sec. 190 of the Code, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may take cognisance of an offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police-officer; (c) upon information received from any person other than a police-officer; or upon his own knowledge or suspicion, that such offence has been committed.
Obviously cognisance in the present case was not taken by the Additional District Magistrate on a complaint or upon information received from any person other than a police officer or upon his own knowledge or suspicion. If cognisance has been taken upon a complaint or upon information received as provided in clause (c) of sec. 190 (1) provisions of sec. 251a of the Code would not have been attracted. But cognisance was taken in this case on the report of a police officer falling within clause (1) (b) of sec. 190. That being so the provisions of sec. 251a would be attracted because it provides the procedure to be adopted in a case instituted on a police report. The same view was taken by this Court in Veerchand vs. The State (3 ). That was also a case where report under sec. 11 of the Essential Commodities Act was made by a public servant. It was held that: "the proceedings in the present case were instituted on a public report and, therefore, the Magistrate did not commit any error in proceeding under sec. 251a, Cr. P. C. " No doubt in the case relied upon by the learned counsel for the petitioner it was held that the case ought to have been tried in accordance with the provisions of sec. 252 onwards and not under sec. 251a of the Code, but in expressing that view the learned Judges relied upon a previous decision of that Court in Sardar Khan Multan Khan vs. State (4 ). But it is to be noted that the aforesaid decision in Sardarkhan's case (4) was overruled by a Full Bench of that Court in Asiq Miyan and others vs. The State (5 ). Reference in that connection may also be made to the decision of the Supreme Court in Pravin Chandra Mody vs. State of Andhra Pradesh (6) where it was observed that : - "in our judgment the meaning which is sought to be given to a 'police report' is not correct. In Sec. 190, a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Sec. 190 (1), to which we have already referred, criminal prosecution can be initiated (1) by a police officer by a report in writing, (ii) information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in this case falls within clause (1) above, the procedure must under sec. 251-A Criminal Procedure Code be follow. If it falls in (ii) or (iii) then the procedure under sec. 252 Criminal Procedure Code, must be followed. We are thus concerned to find out whether the report of the police officer in writing in this case can be described as a 'complaint of facts' or as 'information received from any person other than a police officer. That it cannot be the latter is enough because the information is from a police officer. The upon term 'complaint', in this connection has been defined by the Code of Criminal Procedure and it means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer. " (Sec. 4 (i) (b ). " In view of that it cannot be said that the learned Additional District Magistrate was wrong in adopting the procedure provided in sec. 251a of the Code for the trial of this case.

The next question is whether the trial has been vitiated because no statement of the petitioner was recorded under sec. 342 of the Code. It is true that even in a summary trial the court is bound to record statement of the accused under sec. 342 of the Code after the conclusion of the prosecution evidence, but whether a trial is vitiated on account of the omission of the court to record the statement of the accused under sec. 342 would depend on the fact whether any prejudice has been caused to the accused on that ommission. In the present case it will be noted that the petitioner was examined at the beginning of the trial as provided under sec. 251a of the Code. In that statement he admitted that he was driving the truck. He has stated that the truck was loaded at the shop of Madanlal co-accused in the night with bags of Jawar which were intended to be transported to village, Sharpura, but were seized by the police on the way. On behalf of the prosecution evidence was then led and Amarsingh, Station House Officer stated that Singhana Town was eight miles from the border of Punjab State. He also stated that the truck was seized while it was proceeding from Singhana towards Narnol town within Punjab. The statement of the witness was not challenged in cross examination. The petitioner knew full well the allegations of the prosecution against him and yet no cross-examination was directed to the prosecution witnesses on this point nor was any evidence led in defence to show that the place where the truck was seized, was not in the internal border area or that Singhana Town itself was not in the internal border area. The learned Additional District Magistrate found that the food grains were being transported from internal border area to a place in that area. But that finding was not challenged in revision before the learned Sessions Judge. No objection was taken in this behalf in the memorandum of revision before the learned Sessions Judge. It therefore, seems that the petitioner did not intend to challenge the fact that Singhana was eight miles away from the border of Punjab and that the food grains while being transported were seized in the internal border area. This being so, it cannot be said that any prejudice has been caused to the petitioner because of his non-examination under sec. 342 of the Code. As stated earlier statement of Amar Singh Station House Officer was that Singhana was eight miles away from the border of Punjab State and that the food grains were seized while the truck was proceeding from Singhana towards Narnol. Therefore, the finding of the learned Magistrate cannot be said to be without any evidence. 4. Now about the sentence passed against the petitioner and the order of confiscation of the truck. The petitioner was not released on bail by this Court and has already served out the sentence of imprisonment passed on him. Having regard to the fact that the petitioner was only a carrier the sentence of one month's rigorous imprisonment and a fine of Rs. 100/- will meet the ends of justice. In default of payment of fine the petitioner will undergo fifteen days further rigorous imprisonment. The learned Additional District Magistrate has ordered the forfeiture of the truck also. There is nothing on record to show that the truck belonged to Madanlal who was attempting to export food grains from Rajasthan to Punjab. Nor is there any evidence that the truck belonged to the petitioner. In his statement the petitioner only said in the court below that he was only a servant which shows that the truck belonged to some third person who might not have even knowledge about the commission of this offence. Therefore it will be very hard upon that person if the truck is ordered to be forfeited. In the circumstances of this case therefore, it would be just and proper to set aside the order of the forfeiture of the truck. It will be delivered to the person who is entitled by the trial Magistrate, to its possession.

The result therefore is that this revision is partly allowed, conviction of the petitioner is maintained but his sentence of fine is reduced from Rs. 500/- to Rs. 100/- only. In default of payment of fine he will undergo fifteen days further rigorous imprisonment. One month's time is allowed to the petitioner to deposit the fine. The order regarding the forfeiture of the truck is also set aside and it shall be disposed of as directed above. .