1 Apeal 429-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.429 OF 1993 1. Amarshi Nemshi Gala ..Appellants 2. Kalicharan Ram Ratan Yadav Authorized Ration Shop No.32-E Yadav Stores, Srikrishna Nagar, V/s. The State of Maharashtra ..Respondent Mr.A.H.Ponda with Mr.K.M.Parekh, Advocate, for the Appellants Ms Alpa T. Javeri, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 8TH APRIL, 2011 ORAL JUDGMENT . This Appeal is directed against appellants' conviction by the learned Special Judge, Greater Bombay, under the Essential Commodities Act for the offence punishable under Section 7 of the Essential Commodities Act for contravention of Clause 18(3)(d) and (j) of the Maharashtra Foodgrains (Second) Regulations, 1966 read with Clause 7 of the Bombay Rationing Area Scheduled Commodities 2 Apeal 429-1993 (Regulation of Distribution) Order 1986. The learned Special Judge convicted and sentenced the appellants to suffer simple imprisonment for a period of three months with a fine of Rs.500/- each or in default to suffer further simple imprisonment for a period of ten days. 2. Facts which are material for deciding this Appeal are as under :- On 8 th January, 1992, the rationing department seems to have received some information that the appellant was disposing stock of articles meant for public distribution privately. Therefore, they wanted to search appellant's shop. On 9 th January, 1992, the shop was closed as it was a weekly holiday. On 10 th January, 1992 the officer went to the shop at 6:30 a.m. and watched the activities in the shop till 9:20 a.m. where he saw articles and food grains being distributed to the ration card holders. At 9:20 a.m. he entered the shop and checked 3 Apeal 429-1993 the stock book, cash memo and the actual stock of food grains and other articles in the shop. He found shortage of 18 bags of Wheat. A report was made to the police and after registration of an offence, the police officer conducted investigation. He then sent charge sheet to the Court of the Special Judge at Mumbai. 3. The learned Special Judge charged the appellants of the offence punishable under Section 7 of the Essential Commodities Act. since appellants pleaded not guilty they were put on trial at which the prosecution examined rationing inspector, Sahadeo Darraram Satam as P.W.1 and the investigating officer, Rambhau Sadashiv Thorat as P.W.2. In defence, the appellants examined one Lakhamshi Mepa Sutar, who was employee in the shop. After considering the prosecution evidence in the light of defence, the learned Special Judge held the appellants guilty for the offence 4 Apeal 429-1993 punishable under Section 7 of the Essential Commodities Act in contravention of Clause 18(3)(d) and (j) of the Maharashtra Foodgrains (Second) Regulations, 1966 and convicted and sentenced them as mentioned in the earlier part of the Judgment. Aggrieved thereby, the appellants have preferred this Appeal. 4. I have heard the learned Counsel for the appellants and the learned APP for the respondent - State. With the help of both the learned Counsel I have gone through the record. It is unfortunate that public money should have been wasted on prosecution which should have been launched in the first place. P.W.1 Rationing Inspector, who claimed that only 4200 Kg Wheat was there, because he found 18 bags of Wheat less than the quantity that should have been in the shop as per the stock book in the shop admitted that he had not bothered to check up how many bags of food grains were there in the shop including the 5 Apeal 429-1993 open market commodities. Without checking up the entire stocks & drawing up detailed panchanama of the commodities found in the shop, he could not have concluded that only 4200 Kg of Wheat was in the shop. Further, he admitted in his cross examination that the stock had to be checked with reference to the previous dates of inspection and 5% of the shortage from the last date of inspection is permissible. Therefore, he should have calculated as to what was the permissible shortage from the previous date of inspection. He should not have launched half a baked report to the police and the police also should not have sent charge sheet to the Court. It is unfortunate that even the trial Judge ignored this. Therefore, conviction of the appellants is thoroughly unsustainable. 5. In view of this, Appeal is allowed. Conviction of the appellants for the for the offence punishable under Section 7 of the 6 Apeal 429-1993 Essential Commodities Act for contravention of Clause 18(3)(d) and (j) of the Maharashtra Foodgrains (Second) Regulations, 1966 read with Clause 7 of the Bombay Rationing Area Scheduled Commodities (Regulation of Distribution) Order 1986 and sentence of simple imprisonment for a period of three months with a fine of Rs.500/- each or in default to suffer further simple imprisonment for a period of ten days is set aside. Appellants are acquitted of the said offence. (R.C.CHAVAN, J.)