Criminal Appeal (SJ) No. 136 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Arjun Sao, S/o Ganauri Sao, deceased, R/o Village- Sarmera, P.S.-Sarmera, District-Nalanda. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Rajendra Prasad, Sr. Adv. : Mr. Pramod Kumar, Adv. : Mr. Ritesh Kumar, Adv. For the State : Mrs. Veena Kumari Jaiswal, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellant has been convicted under Section 7 of the Essential Commodities Act and sentenced to 15 days simple imprisonment and a fine of Rs. 2,000/- in default of payment of fine by judgment dated 10.05.1994 passed by the Special Judge, Nalanda in Sarmera P.S. Case No. 85 of 1993. The case of the prosecution is that the PDS shop of the appellant was raided in which 78 Kgs. of sugar was found short in his stock and, therefore, it was alleged that the said sugar has been black marketed. The prosecution examined five witnesses out of whom P.W. 1 is the informant, P.W. 2 the witness to the seizure, P.W. 3 has been tendered and P.W. 4 is also a witness on the point of seizure whereas P.W. 5 is formal in nature. 2 From the evidence of the witnesses, it appears that there was no weighment of the sugar and, therefore, it was on mere speculation that the present case was instituted stating therein that 78 Kgs. of sugar found short. The Investigating Officer has not been examined in the case and the Trial Court while awarding the sentence accepted the prosecution case true to the extent that only 20 Kgs. of sugar was found to be short. Since this is the major lacunae in the present case, I am inclined to allow the appeal. In the result, the appeal is allowed and the judgment dated 10.05.1994 passed by the Special Judge, Nalanda in Sarmera P.S. Case No. 85 of 1993 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 8th April, 2011. NAFR/Vikash/-