PALSHIKAR, J. - (1.) BOTH these appeals are directed against the judgment delivered by the Special Judge, Essential Commodities Act, Jodhpur, convicting the accused persons for violation of Rajasthan Cement Control Order, 1974 (hereinafter referred to as `the Order of 1974' ). The accused Birdi Chand has been sentenced to one year's rigorous imprisonment and a fine of Rs. 3,000/- for offence u/s. 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as `the Act') and in default of payment of fine, to further undergo three months' regorous imprisonment. The accused Gamana Ram has been sentenced to three months' rigorous imprisonment and a fine of Rs. 750/- for offence u/sec. 8 of the Act and in default of payment of fine, to further undergo rigorous imprisonment for 21 days. Independent appeals have been filed by the accused which arise out of the same trial and can be disposed of by the same order.
(2.) I have heard the learned counsel for the accused and the learned Public Prosecutor. I have scrutinised the record and reappreciated the evidence. The prosecution story as emerges from reappreciation is that in the night of 22nd and 23. 09. 1985, at about 2. 30 AM on the main gate of Jhamar Kotada mines truck no. RJY 5179 was stopped which was carrying 100 bags of cement driven by Gamana Ram and Birdi Chand was sitting by his side. On being questioned as to the ownership of the cement, Birdi Chand claimed that the cement belongs to him. On enquiry, according to the prosecution, it was revealed that the cement was levy cement and was being transported in violation of the Order of 1974. The accused persons after investigation were prosecuted. Birdi Chand is convicted to suffer rigorous imprisonment for one year and a fine of Rs. 3,000/- whereas Gamana Ram is convicted u/s. 8 read with Sec. 3 of the Act to suffer three months rigorous imprisonment and a fine of Rs. 750/ -. It is this order of conviction and sentence, which is challenged by each of the accused independently in the two aforesaid appeals. Mr. Vijay Bishnoi, the learned counsel appearing on behalf of the accused Gamana Ram submits that even if the entire prosecution evidence is accepted, conviction u/s. 3 read with Sec. 7 of the Act for violation of the Order of 1974 is not possible. In so far as the accused Gamana Ram is concerned, it was contended by the learned counsel that Gamana Ram was merely driving the truck hired for transporting cement and there is no evidence on record to show that Gamana Ram had the knowledge of the fact that the truck is hired to transport levy cement in contravention of the Order of 1974. In the absence of such evidence, according to the learned counsel, no conviction u/s. 8 of the Act for abetting the offence for violation of any order thereunder is possible. I have carefully considered the submissions of the learned counsel and I feel that both the contentions are well founded and are liable to be accepted. The provisions of Sec. 3 of the Act provide and enable the State Govt. to make orders from time to time to control certain commodities which are defined as "essential commodity" either by the Central Govt. or by the State Govt. It was in exercise of these powers that the Govt. of Rajasthan issued The Rajasthan Cement (Licensing and Control) Order, 1974, to control licences and sale of cement in the State of Rajasthan. This Order defines what is meant by levy cement. The definition reads thus:- 2. Definitions, - In this order, unless the context otherwise requires:- (aa) "levy Cement" means that part of production of cement with reference to the installed capacity of a cement plant as may be determined by the Central Government from time to time, not being more than 66. 6 per cent of the installed capacity of the cement plant. " Clause 3 of the Order provides that no person shall carry on the business as a stockist of cement except in accordance with the terms and conditions of licence issued under the Order. Clause 15 of the Order provides that no person other than licensee shall acquire levy cement except under and in accordance with a permit in Form `f' or any other form prescribed, issued by the Permit Officer or under the orders issued by the Govt. from time to time. Any violation of these provisions is made penal by Sec. 7 of the Act.
(3.) IN the present case, the prosecution has charged the accused for taking out levy cement on such grounds pointed out by the learned counsel for the accused. Even if the entire prosecution evidence is accepted, there is no proof on record to prove that the 100 bags of cement carried in the truck was the levy cement. Mere stamp of the words "levy cement" on the bag is grossly insufficient to convict a person u/s. 7 of the Act. Merely by stamping a bag the cement does not become levy cement. For example, if a bag is carrying cement and the stamp is of sugar, the contents would not be sugar but will continue to be cement. The provisions of the Control Order will have to be scrutinised for this purpose. Levy cement has been defined as a particular per centage of the production capacity of particular cement manufacturing plant and thus dealing in such levy cement by a dealer defined under the Order in any unauthorised manner, which is offence. For such prosecution to be successful the prosecution has to prove the following:- (i) that the cement was levy cement i. e. it was forming part of 66. 6% of cement manufactured by the plant at the point of time and was, therefore, liable to be dealt with inthe manner prescribed under the Order; (ii) that the accused was not a licence holder under the Order; (iii) that he was dealer of cement, which was levy cement i. e. either he was selling or holding cement, which was levy cement in contravention of the terms of the licence, he has obtained or without licence. In the present case, the prosecution has failed to prove any of these ingredients. There is no material on record to show that the cement was levy cement or that it was sold or purchased on behalf of Birdi Chand. Whether his ownership was in the shape of dealership, purchaser, sellor or stockist, is not clear from the record. Mere transportation of levy cement is not an offence. There has to be evidence of dealing in levy cement in a manner which is in contravention of the terms and conditions of the licence of dealership issued under the Order. It is neither pleaded nor proved by the prosecution that Birdi Chand has such licence and was violating the conditions thereof or he was contravening the condition of licence without obtaining it. In the case of Gamana Ram, there is no evidence whatever to show that he knew that he was transporting levy cement in contravention of the Control Order. In the absence of any such evidence, conviction for abatement of licence under the Essential Commodities Act or an Order thereunder, is not permissible. On this ground alone, the appeal of Gamana Ram is liable to be accepted. In so far as Birdi Chand is concerned, his appeal must succeed for the reason that the prosecution has miserably failed to prove that the accused was dealing in levy cement in contravention of the conditions of the licence. ;