R. S. VERMA, J. - (1.) THE learned Chief Judicial Magistrate, Banswara in criminal original case No. 17/75 vide judgment dated 7. 7. 79 found Pawan Kumar guilty of an offence under section 3/7 of the Essential Commodities Act and convicted and sentenced him to undergo rigorous imprisonment for four months' and to pay a: fine of Rs. 300/-, and in default of payment of fine to undergo further rigorous imprisonment for two months'. Aggrieved by the aforesaid judgment, Pawan Kumar went in appeal to the learned Sessions Judge, Banswara. His appeal was dismissed after due hearing by the learned Sessions Judge on 4. 11. 1980. Aggrieved Pawan Kumar have come in revision to this Court.
(2.) BRIEFLY stated the prosecution case is that Pawan Kumar was granted a licence to run a fair price shop by Tehsildar, Ghatol for the period from 28. 12. 72 to 31,3. 1974 in pursuance of the Rajasthan Sugar Dealers Licencing Order, 1967 (hereinafter called the order), on the terms and conditions specified in licence Ex. P. 4. This licence inter-alia laid down condition No. 3 as follows: "3. The licence shall issue to every customer a correct receiptor invoice as the case may be giving his own name, address and licence number and the name, address the licence number (if any) of the customer the date of transaction, the quantity sold, the' price per quintal and the total amount charged and shall keep a duplicate of the same be available for inspection of demanded by the licensing authority or any other officer authorised by him in this behalf. " A special condition No. 3 was further specified as follows: "3. The licensee shall maintain true and correct account of the sugar received and sold by him under the allotment issued to him by the Collector. ". On 29. 3. 1974 Enforcement Inspector Ram Charan (PW-2) made an inspection of the fair price shop run by Pawan Kumar at Semalia and found stock of 10 at l. 31 k. g. and 200 gms. of sugar in the licensee's godown. The sugar was short by 1 qtl. 6 k. g, and 100 gms. Ram Charan prepared a memo of this checking Ex. P. 1 in presence of Phoolji (PW-1), Vijai Singh (PW-3), Rameshwar (PW-5 ). It is alleged that revision petitioner Pawan Kumar was present when this checking was made and he was also made to sign Ex. P. 1. On the basis of aforesaid inspection, the Enforcement Inspector, Ghatol lodged a report (also marked Ex. P. 1) with Station House Officer, Pipalkhunt upon which a case under section 3/7 of the Essential Commodities Act was registered. Investigation was made by PW-6 Kishore Singh and eventually a charge sheet was filed against the revision petitioner for an offence under section 3/7 of the Essential Commodities Act. The learned Chief Judicial Magistrate, Banswara framed a charge against the revision petitioner on 24. 11. 1975 for offence under section 3/7 of the Essential Commodities Act inter-alia mentioning that his licence for fair price shop of sugar was checked on 29. 3. 1974 by the Enforcement Inspector and 1 qtl. 6 kg. 100 gms sugar was found short and thereby he had violated condition No. 3 of licence issued by Rajasthan Sugar Dealers Licence Order, 1967. The revision petitioner pleaded not guilty and claimed trial. At the trial, prosecution examined PW-1 Phoolji, PW-2 Ram Charan, PW-3. Vijai Singh, PW-5 Rameshwar, PW-6 Kishore Singh and PW-7 Nagin Lal. In the statement recorded under section 313 Cr, PC. revision petitioner maintained that his stock of sugar was correct. He claimed that he had been challaned just to harass him. He did not lead any evidence in defence. Learned Chief Judicial Magistrate after hearing both the parties was of the view that prosecution had proved beyond reasonable doubt that Pawan Kumar was a licenced sugar dealer and licence Ex. P. 4 had been issued to him on 29. 3. 1974. His shop was checked by PW-2 Ram Charan, Enforcement Inspector and there was a deflect in the godown to the tune of 1 qtl. 6 k. g. 100 gms. of sugar and thereby the revision petitioner had violated condition No. 3 of the licence (Ex. P. 4 ). He, therefore, convicted and sentenced. Pawan Kumar as aforesaid. In the appeal filed before the learned, Sessions Judge, it was contended that the charge had not been' brought home against Pawan Kumar beyond shadow of reasonable doubt. Reliance was placed on the evidence of Phoolji and Vijai Singh to show that Inspector Ram Charan had not got the stock weighed at all and it was. not by way of surmises that the deficit was recorded. Learned Sessions Judge repelled this contention and relying upon testimony of Ram Charan upheld the conviction and sentence, passed by the learned Chief Judicial Magistrate. Aggrieved Pawan Kumar has come in revision petition to this Court.
(3.) LEARNED counsel for the petitioner submits that in this case Ex. P. 1 does mention deficit of 1 qtl. 6 k. g. 100 gms, of sugar but in fact there is no evidence on record to show that any weighment of sugar, was got done. It is submitted that Ram Charan had noted down the deficit only on the basis of counting of bags. It is stated in Ex P. l that 10 qtl. 31 k. g. 200 gms. of sugar was found at the godown. This much quantity of sugar would have taken a good deal of time in getting the weighment done. A proper weighing machine would have been required to make this weighment. If really weighment would have done, Ex P. 1 would have mentioned this fact. But since all this was not done Ram Charan vaguely mentioned that physical verification of the stock was made. He did not mention about the factum of any weighment in Ex. P. 1. As such any shortage in the stock of sugar was assumed merely on surmise and conjectures and the petitioner should not have been convicted and sentenced on such basis. Learned Public Prosecutor opposes the revision petition and submits that there was a deficit of sugar in stock of the revision petitioner and as such this court should not disturb the conviction and sentence recorded by the learned Chief Judicial Magistrate and maintained by the learned Sessions Judge. I have carefully considered the rival contentions and have also gone through the record of the learned courts below. Ex. P. l does not mention that any weighment of sugar was done by Ram Charan, Enforcement Inspector. It of course vaguely mentioned that physical verification of the godown had been done. Ex. P. l does not mention the name of the person who might have made the weighment of the sugar available in the godown at the time of inspection. Had really weighment been done, this fact would have naturally found mention in Ex P. 1. Omission to mention that weighment of sugar bad been done at the time of checking renders the defence contention pro-able that actually no weighment might have been done and shortage might have been recorded only by counting sugar bags. This takes me to the consideration of the evidence of the attesting witnesses of Ex P. l Phoolji has deposed in his examination-in-chief that the Inspector from Ghatol had come and had counted sugar bags lying in the shop of Pawan Kumar. Inspector had prepared Ex. P. 1 and he had attested the same. In cross-examination he has categorically admitted that no weighment of sugar was got done. He clarifies this by saying that sugar bags had been counted and in all there were 11 bags and on that basis approximation had been done. It would be proper to recall here that Phoolji was not declared hostile and no permission was sought by the learned Public Prosecutor to cross-examine this witness. Hence, the prosecution is bound by the testimony of this witness which remains unchallenged on the question of alleged weighment. To the same effect is the testimony of PW-3 Vijai Singh and he has also categorically stated that sugar was not got weighed in his presence. This witness was also not declared hostile nor permission was to sought challenge his statement by way of cross-examination. ;