1 Cri.Appeal 627-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.627 OF 1993 1. Pravinji Anandji Jajal ..Appellants Age : 56 years, Occu : business 2. Anantkumar Pravinchand Jajal Age : 30 years, Occu : business 3. Navin Pravinchand Jajal Age : years, Occu : business All R/o. Station road, Kolhapur. V/s. The State of Maharashtra ..Respondent Mr.Nitin Pradhan, Senior Counsel with Ms S.D.Khot, for the Appellants Mrs.G.P.Mulekar, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 22ND MARCH, 2011 ORAL JUDGMENT . This Appeal is directed against appellants' conviction by the learned Special Judge, Kolhapur for the offence punishable under Section 7 of the Essential Commodities Act on three counts:- First, selling of 2 Cri.Appeal 627-1993 Kerosene without valid license, secondly, not maintaining correct account of the Kerosene sold and thirdly, for using license of a dead person. The learned Judge sentenced the appellants to simple imprisonment for three months with a fine of Rs.1000/- each on each of the three counts. 2. Facts which are material for deciding this Appeal are as under :- On 18th February, 1980 Supply inspector Hasurkar visited the shop of the appellants where the appellants were doing business in the name of Anandji Gandabhai Jajal. He found that on 7th June, 1979, 8141 litres of Kerosene shown to have been sold in the stock book whereas as per cash memos, 7934 litres of Kerosene have been sold. Again on 18th February, 1980, against the receipt of 8250 litres Kerosene, sale of 8650 litres of Kerosene was shown. He also found that the license had been issued in the name of Anandji 3 Cri.Appeal 627-1993 Gandabhai Jajal whereas the business was being run by a partnership of which the appellants were the partners. This business was run through salesman Subhash Hanmant Gurav. He had also found that the Kerosene was being sold at the rate of Rs.28.60/- per 20 litres against the prescribed rate of Rs.28/- for 20 litres. He, therefore, made a report to the police, who registered an offence, seized necessary record and submitted a charge sheet to the learned Special Judge, Kolhapur appointed to deal with the cases under the Essential Commodities Act. The charge sheet was sent against the three appellants as also the servant by name Subhash Hanmant Gurav, who was arrayed as accused No.2. 3. The learned Special Judge explained particulars of the offences to all the four accused persons arrayed before him. They pleaded not guilty and hence, he put them on trial held in summary way by him at which the 4 Cri.Appeal 627-1993 prosecution examined Bapusaheb Dattoba Hasurkar a Supply inspector as P.W.2, Shridhar Ganpatrao Mane Foodgrains Distribution officer as P.W.3 and panch Shivaji Devaji Bhosale at seizure effected as P.W.1. The investigating officer was not examined. After considering the prosecution evidence in the light of defence raised, the learned Judge acquitted servant Subhash Hanmant Gurav, accused No.2, of the charges. He also acquitted the appellants of the charge of selling Kerosene at higher rate, but held them guilty for selling Kerosene without valid license, using license of a dead person and not maintaining correct account of Kerosene sold and sentenced them as indicated earlier. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned Counsel for the appellants and the learned APP for the respondent  State. It is unfortunate that the learned trial Judge did not note that the 5 Cri.Appeal 627-1993 learned APP in charge of the case had admitted applications for re-newal of license made by M/s.A.G.Jajal on 18th February, 1978 and 26th December, 1980. These applications were signed on behalf of M/s.A.G.Jajal by its partners. Thus, the department knew that entity seeking renewal of license was a partnership firm and not any individual by name A.G.Jajal. These documents unfortunately are relegated by the learned Judge in the miscellaneous papers at page Nos.397 and 399 of his record, though the learned APP's endorsement that the documents were admitted and could be exhibited is to be found on them. In the face of these documents, the evidence of P.W.3 Shridhar Ganpatrao Mane that the license was in the individual name should have been rejected by the learned Trial Judge and appellants could not have been convicted for doing business without valid license or doing business with a license in the name of a dead person. The convictions on those counts 6 Cri.Appeal 627-1993 cannot at all be sustained. 5. The learned Counsel for the appellants next pointed out that the appellants have been charged of selling 7934 litres of Kerosene on 7th June, 1979 but showing sale of 8141 litres of Kerosene on that day. First, the document at Exhibit 126 does not show that on 7th June, 1979 any such sale of 7934 litres of Kerosene was effected or the stock showed 8141 litres of Kerosene has sold. 8141 litres of Kerosene is shown to have been sold on 6th June, 1979. Even if it is taken that there is a mistake in the date, it is not clear as to from where does P.W.2 Bapusaheb Dattoba Hasurkar sub- inspector gather the figure of 7934 litres of Kerosene. He states that this figure was as per the cash memos. So cash memos should have been produced to show that the sale on that day was of 7934 litres of Kerosene, or sale register should have been produced. In the FIR at Exhibit 129 the officer has stated 7 Cri.Appeal 627-1993 that there was some 207 litres of Kerosene sold without receipts. In the absence of any evidence to tally the actual sale allegedly noticed by P.W.2 Bapusaheb Dattoba Hasurkar the learned Judge should have rejected his word on oath. Even if it is presumed for a while the originals were not available, the learned Judge could have permitted taking of secondary evidence. The panchanama at Exhibit No.125 shows that visit book and reports of the District Supply officer and receipt book from 24th January, 1980 to 18th February, 1980 were seized. Now, this receipt book which was seized was not for 6th or 7th June, 1979 when the first discrepancy was noticed. Therefore, it is an enigma that how the officer could come to hold that 7934 litres of Kerosene was in fact sold on one of those days. 6. Same is the case about sale on 18th February, 1980. There is nothing to show that 8250 litres of Kerosene was in fact sold on 8 Cri.Appeal 627-1993 that day except the word of Bapusaheb Hasurkar. He could not have come to such conclusion without looking at such record and that record is not before the Court. Therefore, even on this charge the learned Special Judge was not justified in recording the finding of guilt. 7. In view of this, the Appeal is allowed. Conviction of the appellants for the offence punishable under Section 7 of the Essential Commodities Act is set aside. They are acquitted of the said offence. (R.C.CHAVAN, J.)