1 Criminal Appeal (SJ) No.3 OF 1994 - - - - Against the judgment of conviction and order of sentence dated 22.12.1993 and 23.12.1993, respectively, passed by the Special Judge, Nalanda at Biharsharif in Islampur P.S.Cse No. 61 of 1990, G.R.No. 601 of 1990. - - - - KISHORI PRASAD KESHARI son of late Sarju Ram, resident of Village Atasari, P.S. Islampur, District Nalanda … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Vijayanand, Adv. For the State: Shri Ajay Mishra,A.P.P. - - - - P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- After having heard Shri Vijayanand, learned counsel appearing on behalf of the appellant and shri Ajay Mishra, learned A.P.P. for the State and after having gone through the evidence of the witnesses, what this Court finds is that the allegation is that the appellant, who stands convicted for committing offence under Section 7 of the Essential Commodities Act and sentenced to simple imprisonment for one month as also to pay a fine of Rs. 2,000/- and in default to suffer simple imprisonment for one month more, is said to have loaded four bags of sugar on the Thela being driven by Tito Sao for being sold in the black market. The informant intercepted the Thela from where the appellant is alleged to have 2 fled away. The informant, Raj Kumar Keshari, claiming the bags of sugar being taken for being sold in the black-market, gave an information to the Officer-in-charge of Islampur Police Station in writing whereafter a case was registered and after investigation the police sent up the present appellant for trial. 2. Five witnesses appear examined during the trial P.W. 1 is Tito Sao who was the Thela puller. He has not stated that the sugar which he was carrying belonged to the present appellant and he had got the sugar loaded on his Thela. P.W. 2, Naresh Paswan is a witness of seizure and he has admitted his signature on the seizure memo but has stated that there were small 3-4 bags of sugar on the thela. P.W. 3 is the police Officer who had taken the charge of investigation from P.W.4 who is the Investigating Officer and has stated that he had seized all the four bags of sugar and registered the case on receipt of the written report and, thereafter, submitted the charge sheet for trial of the present appellant. P.W. 5 is a witness of formal nature who has exhibited the statement of P.W.1 recorded under Section 164 Cr. P.C. by a Judicial Magistrate. 3 3. Thus, what I find from the resume of the evidence is that the informant of the case has not been examined in the case and even the evidence which was adduced before the trial court does not establish, firstly, that the bags of sugar which were seized by the police were supplied to the appellant and those supplies were made for distribution through Public Distribution System. It also does not appear established that bags of sugar were being taken to be sold in black market, which was meant to be distributed amongst the consumers, in violation of the licensing conditions of a licence issued for a Public Distribution System shop which was in the name of the appellant. 4. Thus, from the evidence discussed above, I find that the finding of the learned trial Judge that the particular clause, i.e., Clause 18 of the Bihr Trade Articles( Licenses Unification) Order, 1984, had been violated and thus, an offence under Section 7 of the Essential Commodities Act had been committed, appears completely unsustainable in law. 5. In the result, the appeal is allowed, the judgment of conviction and order of sentence 4 passed against the appellant are hereby set aside and the appellant is acquitted. 6. The appellant is on bail, He shall stand discharged from the liability of his bond. (Dharnidhar Jha, J.) Patna High Court The Ist April, 2011 Kanth/N.A.F.R.