CRIMINAL APPEAL No.366 OF 1993 AGAINST THE JUDGMENT AND ORDER DATED 9.12.1993, PASSED BY SRI JIWAN TIGGA, SPECIAL JUDGE, NALANDA AT BIHARSHARIF IN RAHUI (WEINA) POLICE STATION CASE NO. 138 OF 1990, G.R. NO. 1872 OF 1990 RAJENDRA PRASAD, SON OF KISHUN SAO. RESIDENT OF VILLAGE- WEINA, POLICE STATION- WEINA, DISTRICT- NALANDA ----- Appellant Versus THE STATE OF BIHAR ----- Respondent For the Appellant :- Mr. Rajani Kant Pandey, Advocate For the State :- Mr. S. N. Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The sole appellant has been convicted under Section 7 of the Essential Commodity Act for contravention of the provision of Sections 3 and 18 of Bihar Trade Articles (Licences Unification) Order, 1984 along with Sections 3, 4 and 7 of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 to undergo S.I. for 3 months and also to pay a fine of Rs. 3000/- and in default of payment of fine one month S.I. more is awarded to him. 2 The prosecution case is that on 13.9.1990 at about 6 p.m. the Officer Incharge of Wena Police Station raided the shop and house of Rajendra Prasad, the appellant. In the presence of Independent witnesses 164 litres of K. Oil was seized and a seizure list was prepared which is marked as Exhibits 4/1 and 4/2. The First Information Report was drawn up on 14.9.1990 on the basis of the aforesaid seizure. The defence of the appellant is that he is an agriculturist and also owns grocery shop. On the day of the occurrence he along with other persons had purchased K. Oil for their personal use and carried it on a ‘Tumtum’ to Wena village. Since it had got late on the day on which the purchase was made, these persons requested the appellant to keep the K. Oil with him until they could collect it. The Court below has considered this aspect of the case by holding that the appellant could not have kept K. Oil in the shop more than the permissible amount and also that the appellant has not disclosed the names of the other persons who had stored the K. Oil 3 in the shop and house of the appellant. Learned counsel for the appellant submits that there is no evidence to indicate that the appellant had stored the K. Oil for the purpose of selling it in black market and as such the conviction under Sections 3 and 18 of Bihar Trade Articles (Licences Unification) Order, 1984 is misplaced. It is further submitted that in fact there is no evidence to show that the appellant is either a whole sale or a retail dealer and since there is no evidence to show that he is a dealer under Section 2(e) it cannot be held that the appellant has contravened the provisions and terms of the aforesaid Act. Learned counsel draws the Court’s attention to the questions put to the accused under Section 313 of the Code of Criminal Procedure which are as follows:- 313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him 4 generally on the case: Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1) (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he had committed. Learned counsel for the appellant submits that the appellant has not been charged with the offence of storing the K. Oil and as stated earlier that there is no evidence to show that the appellant was selling the K. Oil at the relevant point of time. The seizure list indicates that weighing machine and other articles which are essential or which would lead to the conclusion that the appellant was in the process of selling the K. Oil in black market has not been brought on record by the prosecution. I find that the appellant has been able to show that he was not selling the K. Oil in black market. Besides the aforesaid this case is of the year 1990 and this fact alone 5 would be a good consideration even if the allegations were true, to reconsider the conviction awarded to the appellant as he has faced and pursued the case for 19 years. In the result the order of conviction is set aside. The appeal is allowed and the appellant is discharged from the liabilities of his bail bond. Patna High Court, The 14th May, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)