- (1.) B. K. Sharma, J. Heard learned counsel for the parties and perused the record.
(2.) THIS revisions has been preferred against the judgment and order dated 13th February, 1986 passed by Sri P. N. Rai, the then Special Judge (Additional Sessions Judge), Basti in Criminal Appeal No. 71 of 1985 whereby he partly allowed the appeal filed by the accused-revisionist against the judgment and order dated 5-8-1985 passed by Sri Prem Bahadur the then Special Judi cial Magistrate, Basti in Criminal Case No. 1391 of 1984 upholding the sentence of six months rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, three months rigorous imprisonment for the offence under Sections 3/7 of the Essential Commoditiest Act. The prosecution story was that the A. D. O. , Sri Ganga Prasad Yadav of Development Block, Rudhauli, visited Nyaya ranchayat Kisan Sewa Sahkari Samiti Limited, Sarikala and found that the Sales-man of the said Samiti Sri Jag-dish Sharma (accused-revisionist), ob tained five drums of Kerosene Oil on 26-2-1982 for distribution among the con sumers but did not distribute the same amongst the consumers and sold it in black-market and showed false and fic titious entries in the distribution register on 27-2-1982 and 28-2-1982 in three Gram Sabhas. The learned Magistrate framed two charges and then framed two amended charges against the accused-revisionist. The first amended charge was that the accused-revisionist, being seller of Nyaya Panchayat Kisan Sewa Sahkari Samiti Ltd. Sarikala, had taken delivery of 1000 litres of Kerosene Oil whose distribution he had shown on 27-2-1982 and 28-2-1982 but when the Sahayak Vikas Khand Adhikari Sahkarita made enquiry, he found no entry made about it on the cards of the ration card holders and thus he intentionally prepared fictitious record (sale register) and thereby made violation of clauses 19 and 23 of the Foodgrains and Other Essen tial Articles Distribution Order, 1977 (hereinafter referred to as the Control Order. 1977) punishable under Sections 7 and 9 of the Essential Commodities Act (hereinafter referred to as the E. C. Act ). The second amended charge was that he sold Kerosene Oil to the card-holders on rate of Rs. 2. 10 paise; Rs. 3/- and Rs. 2. 50 paise per litre which was above the prescribed rate per litre and thus com mitted violation of clause 3 of Kerosene (Fixation of oil Ceiling Prices) Order, 1970 (hereinafter referred to as the control Order, (. . . sic) Control Order, 1962) punishable under Section 7 of the E. C. Act. The accused-appellant pleaded not guilty to the said amended charges.
(3.) AFTER holding the trial, the learned Magistrate found that on 26-2-1982 the accused-revisionist as seller took delivery of 1000 litres kerosene oil whose distribution was showed by him on 27-2-1982 and 28-2-1982 but he did not make entry about the same of the cards of ration card holders and that he intentionally prepared fictitious entries in the distribution register and further that he sold the Kerosene oil on the rates higher than the prescribed rates. Consequently, the learned Magistrate convicted the accused-revisionist on two counts against charge No. 1. First, for the violation of Clause 19 of the Control Order, 1977, secondly for violation of Clause 23 of the Control Order, 1977 and with the help of Section 7 of the E. C. Act convicted him and on the first count, sentenced him to undergo rigorous imprisonment for a period of six month and to pay a fine of Rs. 1,000/- In the second count, he sentenced him to rigorous imprisonment fora period of one and half years and to pay a fine of Rs. 1000/-under Section 9 of the E. C. Act. Then he convicted the accused-revisionist on two counts (Counts No. 3 and 4) against charge No. 2. On the third count, he had found violation of Clause 3 of the Control Order, 1970 and sentenced him to undergo rigorous imprisonment for a period of six month and to pay a fine of Rs. 1,000/-under Section 7 of the E. C. Act and on the fourth count, he found him guilty of the violation of Clause 4 of the Control Order, 1962 and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-under Section 7 of the E. C. Act. All the sentences were ordered to run concurrently Accused-revisionist Jagdish Shar ma preferred a criminal appeal before the learned Sessions Judge, Basti. The said appeal was numbered as Criminal Appeal No. 71 of 1985. That appeal came up for hearing before Sri P. N. Rai, the then Spe cial Judge (Additional Sessions Judge), Basti.;