- (1.) 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 Criminal Appeal No. 19 of 1986, Rashid Ahmad v. State, and confirming the order of conviction and sentence dated 4-3-1986 passed by the learned Special Judicial Magistrate, Nagina, district Bijnor, in Criminal Case 38 of 1986, State v. Rashid Ahmad and Khurshid Ahmad, by which Rashid Ahmad, revisionist, was held guilty under Section 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 RI of 6 months and fine of Rs. 1000 was imposed and in case of default in payment of fine Rashid Ahmad had further to undergo two months RI. The co-accused Khurshid Ahmad son of Rashid Ahmad was acquitted.
(2.) HEARD Sri Ikram Ahmad learned Counsel for the revisionist and Sri Anoop Ghosh, learned AGA 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. FIR Exhibit Ka-2 was lodged by Ram Bahadur, Sub-Divisional Magistrate, Nagina. In the FIR 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 constriction of building of Tube-well department. 28 bags of cement was recovered but papers could not be shown. Prosecution examined PW 1 constable Bhure Singh, PW 2 Abdul Haie, Sub-Registrar and PW 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.
(3.) A perusal of the judgments of both the Courts below show 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 proper to show that it was the cement in respect of which allotment order was passed and permit was issued, but DW 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 under Section 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 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 after thought. The learned AGA 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.;