Criminal Appeal (SJ) No.10 Of 1994 Against the judgement of conviction and order of sentence dated 13.01.1994 passed by Special Judge, Nalanda at Biharsharif in Rahui(Wena)P.S.Case No.266 of 1989 GAYA PANDEY----------------------------Appellant Versus STATE OF BIHAR--------------------------Respondent ----- For the appellant:- Sri Anjani Kumar, Advocate. For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present appellant was tried by the learned Special Judge, Biharsharif in Rahui(Wena)P.S.Case No.266 of 1989 for a charge under Section 7 of the Essential Commodities Act and by judgment of conviction and order of sentence passed on 13.1.1994 was found guilty of committing the said offence by being directed to suffer simple imprisonment for one month as also to pay a fine of Rs.2,000/- and in case of default in payment of the fine the appellant was directed to suffer simple imprisonment for another period of one month. The appellant appeals against the above noted order of conviction and sentence. 2. A raid was conducted in a line hotel on 18.9.1989 at 6.30 P.M. which was 2 allegedly belonging to the appellant and it was found that 20-25 litres of diesel were kept in a container. In addition to the above 18 to 20 litres of kerosene oil was also found in another container. Besides, the appellant was found also in possession of a few more empty containers. The raid was conducted by Sub- Inspector R.P.Ram of Wena police station and the recovered articles were seized by preparing a seizure memo in presence of Parashnath Pd. and Dayanand Paswan,P.W.1 and P.W.3respectively. The informant S.I. R.P.Ram (not examined) drew up his self statement and forwarded it to Rahui P.S. for institution of a case which ultimately ended in sending up of the appellant for trial. 3. During the course of the trial five witnesses were examined. As just pointed out, the informant did not appear for giving his evidence. P.W.1 Parashnath Pd. and P.W.3 Dayanand Paswan who were the witnesses to seizure did not support the factum that any search was made in the line hotel and anything was recovered in their presence. Both the witnesses stated that they were threatened by the police to sign a plain paper. P.W.2 Saukhi 3 Gope has stated that at some distance from the line hotel some containers were found containing diesel, petrol and kerosene and those were seized by the police officer. Thus, P.W.2 did not support the prosecution story that a search was conducted in the premises of the line hotel of the appellant and anything was recovered from there. P.W.4 Chandrabhushan Tiwary was the A.S.I. who was a accompanying the informant and he supported the prosecution story regarding the search of the line hotel and recovering the diesel and kerosene oil as indicated in the FIR, which fact has also been supported by P.W.5 Ghoghan Nat who was a constable and member of the raiding party. 4. Sri Anjani Kumar, learned counsel appearing for the appellant has drawn the attention of the court to clause 7 of the Bihar Motor Spirit And High Speed Diesel Oil Dealers Licensing Order, 1966 which reads as under:- [7. Restrictions against storage.- (1)No person other than a licensee shall keep or store in any premises occupied by him or permit any other person to keep or store in any such premises a quantity exceeding 27.27 litres(gallons) of Motor Spirit and 400 litres(two barrel) of high speed diesel oil otherwise than in the tank of a motor vehicle unless he has obtained a written permission from the District Transport Officer or such Superintendent of 4 Police, who is authorized to perform the duties and discharge the functions of District Transport Officer, within the limits of whose jurisdiction the motor spirit or high speed diesel oil is kept or stored, authorizing him to do so. (2) No dealer shall supply exceeding 27.27 litres (6 gallons)of motor spirit and 400 litres (two barrel) of high speed diesel oil to any person in tin or barrel without a written permission of the licensing authority of the area concerned.] 5. It was contended that as per the very provision itself, the storage limit for diesel for any person was up to 400 litres and there was no mention of kerosene oil being covered by that particular order as there was a separate order controlling the sale and storage of kerosene oil. Therefore, the recovery of kerosene oil measuring 18 or 20 litres was of no consequence as regards the charges. It was contended that allegedly the recovery of diesel was in between 20 to 25 litres which was much below the storage limit. The learned trial Judge heavily erred in law in convicting the appellant. 6. I have already extracted the provision of clause 7 of the Bihar Motor Spirit And High Speed Diesel Oil Dealers Licensing Order, 1966 and on a bare perusal of it one may find that the maximum storage limit fixed for 5 high speed diesel was 400 litres. Even accepting the prosecution case as contained in the FIR to be true, the maximum measuring of diesel which was allegedly recovered from the premises of the appellant was 25 litres, though the evidence is not sufficient to indicate that the recovery was made from the premises of the present appellant. The evidence is completely absent as regards the search of the premises of the appellant. Except those of an A.S.I. and a constable the public witnesses specially P.W.2 has stated that the recovery was made from a place quite away from the line hotel of the appellant which creates a serious doubt about the story of recovery. The story of recovery as contained in the FIR also appears not certain inasmuch as the total quantity of recovered diesel has not been specified. It has merely been stated that the recovered quantity of diesel was in between 20 to 25 litres. 7. On consideration of the evidence what appears to this court is that there was no sufficient evidence to hold that any search was made of the line hotel belonging to the appellant and any quantity of diesel was recovered. In addition to that the very 6 provision for the violation of which the appellant was being convicted under Section 7 of the Essential Commodities Act was not applicable to the facts of the case as the recovered diesel was only 25 litres much below the maximum storage limit of 400 litres of diesel. 8. In that view of the matter, I find that the order of conviction and the sentence passed upon the appellant could not be sustained. In the result, the appeal is allowed. The conviction and the sentence passed against the appellant is hereby set aside. The appellant is acquitted. The appellant is on bail. He shall be discharged from the liabilities of his bail bond. Patna High Court, Dated the 4th of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)