BHARGAVA, J. - (1.) THIS is an appeal against the judgment of learned Special Judge (Essential Commodities Act) Jaipur City, Jaipur whereby he convicted and sentenced accused-appellant under Section 3/7, Essential Commodities Act for two year's rigorous imprisonment & a fine of Rs. 2000/- and in default of payment of fine, six months' rigorous imprisonment.
(2.) ONE FIR was registered at Police Station, Kotwali, Jaipur on 14. 9. 87 at about 4. 05 p. m. in relation to an occurrence alleged to have taken place in the night of 13. 9. 87. This FIR was lodged by Shri Chunnilal, CI, SHO, Police Station Kotwali (PW 2) wherein it was stated that on 13. 8. 87 on receiving information that Palm oil and Rapseed oil of ration has been delivered at house No. 43, Godhika Rasta, Kishan Pole Bazar where there is a 'karkhana' for Namkeen and this oil has been brought stealthily and sold at a higher rate. On this information, Shri Chunnilal reached the house of accused-appellant and made enquiries and it was told that one person has sold the oil at the rate of Rs. 30 per tin. There were 41 tins oil including 29 of Palm oil and 12 Rapseed oil. The tins were seized under Section 102, Cr. P. C. and a case under Section 3/7, Essential Commodities Act was registered. The police after investigation filed challan against one Bhanwarlal and accused-appellant Dharam Singh. A revision was filed by both the accused persons and High Court by its order dated 23. 8. 89 quashed the charges against Bhanwarlal but so far as present accused-appellant was concerned, the Court did not agree that there was no prima facie case against accused Dharam Singh and therefore no interference was made. Thereafter, the trial Court proceeded with the trial against Dharam Singh only and after recording evidence and hearing arguments, convicted accused-appellant under Section 3/7 of the Essential Commodities Act and sentenced him for two years' rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine six months' rigorous imprisonment. Aggrieved against this judgment, the present appeal has been filed. Arguments have been heard and record has been perused. Learned counsel for the appellant has very vehemently submitted that the appellant has wrongly been convicted in as much as the appellant is not doing the business of sale and purchase of oil but he is doing the business of manufacturing "namkeen' and the oil is used as a cooking media. She has further submitted that even the prosecution witness has admitted that the appellant does not do business in oil but uses oil for manufacturing 'namkeen. She has further submitted that it was Bhanwarlal who had supplied oil to him and since the charge against him has been quashed, the appellant cannot be convicted & moreover, when the witnesses PW 3 Asandas and PW 4 Ram Swaroop have been declared hostile and they have not supported the prosecution case and, therefore, the recovery itself has become doubtful. She has further submitted that the sample of oil was taken after a period of one year and one month and the witnesses regarding the procurement of the sample namely Shri Chiranjilal, Shri Kanhaiyalal and one police officer Mohd. Akil have not been examined by the prosecution to prove that the oil of sample was from the tins which were recovered from the premises of accused-appellant, moreover, it has come in evidence that the tins which were recovered from the accused had the lable of 'shri Krishna with a cow' but the tins produced in the Court did not had this lable and there was no identification mark on the tins to show that they were the same which were recovered from the accused-appellant. On the other hand, learned Public Prosecutor has also very vehemently submitted that in cases of violation of Essential Commodities Act, the Court should take strict view. He submitted that since it is admitted even by the accused that 41 tins were recovered from his possession which is a clear violation. As per orders issued under the Essential Commodities Act, no dealer could store more than 5 quintals of the oil and as per the oil recovered from the appellant was admitedly more than five quintals, therefore, accused should be convicted on his own admission for the violation of the order. I have given my thoughtful consideration to the whole matter and also perused the record and the judgment of the trial court as also of the High Court in revision petition filed earlier. In view of the fact that prosecution has failed to prove that the accused was dealing in oil or that he used to purchase and sale oil, he cannot be termed as a dealer within the meaning of definition provided under the Act and, therefore, it is not necessary for him to take any licence. More so, when prosecution witnesses have admitted that the accused-appellant does not deal in purchase and sale of oil but he uses oil as a cooking media for the manufacture of 'namkeen'. The prosecution has not been able to prove beyond doubt that the oil which was produced in the Court was recovered from the appellant's custody nor that the sample was taken from the oil recovered from the accused-appellant's custody. In this view of the matter, I am of the opinion that the prosecution has not been able to prove charge against the accused appellant beyond reasonable doubt especially when charge against the Bhanwarlal has been quashed. Merely, because the accused-appellant was in possession of little more than the permissible limit required for the dealer in oil, he cannot be convicted because the accused appellant was not a dealer and he had stored the oil only for manufacture of 'namkeen'. The oil was not meant for sale and was purchased by the accused-appellant for manufacturing 'namkeen'.
(3.) IN this view of the matter, the appeal is allowed. The conviction and sentence passed by the learned Special Judge, Essential Commodities Act, against the accused-appellant, is hereby quashed. .;