SHYAM SUNDER BYAS,J. - (1.) THE State has come -up in revision against an order of the learned District Judge, Pali dated February 18, 1980, by which the order op the Collector, Sirohi dated October 24, 1979 was set -aside and 62 confiscated bags of cement were directed to be delivered to the non -petitioner Gulab Chand.
(2.) BRIEFLY recalled, the relevant facts are that the Enforcement Officer, Mount Abu made a search of the residential house of Gulabchand situate in the the town Pindwara on August 6, 1979 and found 62 bags of cement with the mark 'Udaipur Cement Works'. Gulabchand was asked the source of his acquiring these bags of cement. He could furnish no permit or licence not any bill or other document for obtaining these cement bags. No person in 1979 could acquire cement without a permit obtained under the Rajasthan Cement (Licensing and Control Order, 1979 (here in after to be referred to as 'the Order.' The aqcquiring of 62 bags of cement by Gulabchand, thus, contravened the provisions of Clause 15 of the Order. The Enforcement Officer submitted an application under Section 6 of the Essential Commodities Act, 1955 for short, 'the Act') before the Collector, Sirohi for confiscation of these 62 cement bags. The Collector issued anotice to Gulabchand (not -petitioner) to show cause as to why the cement bags be not confiscated. He appeared before the collector and submitted his objections in writing. The plea taken by him was that he had committed no breach of any provisions of the Order. Under Clause 8 of the Order, he could keep as many as 250 bags of cement in his possession without obtaining any licence or permit. The Collector heard both the parties and by his order dated October 24, 1979 held that the non -petitioner Gulbachand has contravened the provisions of Clause 15 of the Order in so much so that he acquired 62 bags of cement with any permit. He, therefore, passed the order for confiscation of these 62 bags of cement. Gulab chand went in appeal before the District Judge, Pali. The District Judge, Pali, by his judgment dated Feb 18, 1980, set -aside the order of the Collector He held that there was a free sale of cement from Feb. 25, 1975 to October 13,1978 The prosecution has failed to prove that the cement bags were acquired by Gulabchand after October 13, 1978. He, therefore, set -aside the order of the Collector and directed the cement bags to be returned to Gulabchand. Aggrieved against the said order the State has come up in revision. The Cement order came into force w.e.f. September 2, 1974. In the intervening period from Feb. 25, 1975 to October 13, 1978, some of the provisions of this Order including Clause 15, were not made applicable and free sale of cement to a limited extent was allowed. This facility of free sale came to an end from October 13, 1978. Sixty -two bags of cement were found in possession of Gulabchand on August 6, 1979. The allegation against Gulabchand was that he had acquired these cement bage without a permit as required under Clause 15 of the Order. Clause 15 reads as under: 75. Acquisition for use: No person other than licensee shall acquire cement except under and in accordance with a permit in From -F (or any other Form prescribed) issued by the Permit Officer.
(3.) IT was contended by the learned Public Prosecutor that it was for the non -petititoner Gulabchand to show that he had acquired these 62 bags of cement within the free sale period of February 25, 1975 to October 13, 1978 Section 14 of the Act keeps the burden of proof on the person that he had any authority, permit, licence other document for acquiring the commodity in question, of which the contravention is alleged. It was argued that Gulabchand has not furnished any material that he had acquired there cement bags within the free sale period of February 1975 to October 1978. The order of the Collector was therefore, perfectly justified and was erroneously set -aside by the District Judge. It was, on the other band, contended by Mr. Singhi learned Counsel for the non -petitioner Gulabchand that his explanation that he had acquired these 62 bags of cement within the free sale period, was sufficient as there was no material in rebuttal. The District Judge was, therefore, tight in setting -aside the order of the Collector. We have given our thoughtful consideration to the rival submissions.;