CRIMINAL APPEAL No.223 OF 1993 Against the judgment and order dated 22nd July,1993 passed by the Special Judge, Nalanda, Bihar Sharif in Sarmera P.S.Case No. 101/89, G.R.Case No. 2810/89. RAM NARESH MAHTO @ RAM NARESH PRASAD SINGH-------------Appellant Versus STATE OF BIHAR-----------------------------------------Respondent For the Appellant : Mr. Awadhesh Pd.Sinha & Mr. Kumar Mrityunjay Narain For the State : Mr. S.N.Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. REKHA KUMARI Rekha Kumari,J., This appeal is directed against the judgment dated 22.7.1993 passed by the Special Judge, Nalanda, Bihar Sharif, in G.R.No. 2810/89, whereby he has convicted the appellant Ram Naresh Mahto under section 7 of the E.C.Act for contravening the provisions of sections 3 and 18 of the Bihar Trade Articles (Licenses Unification) Order, 1984 and sentenced him to pay a fine of Rs. 2500/- and in default to undergo S.I. for two months. 2. The prosecution case as disclosed from the written report (Ext.2) of the informant Vijay Narain Singh, the Chairman of Young Congress (I) Committee Sarmera and a member of 20 point programme, is that on 7.10.1089 at 11.00 A.M. he received an information from a reliable source that the co-accused Hira Singh was carrying sugar in two bags of fertilizer in his tyrecart at the behest of the appellant Ram Naresh Mahto, a P.D.S.dealer to Sarmera Bazar for selling in black market. The informant hence sent the written report to the police station for taking legal action. On the basis of the written report, a case was registered at the Police Station. The police after usual investigation submitted charge sheet against the appellant and co-accused Hira Singh. On the basis of charge sheet cognizance was taken and both the accused were put on trial. 3. The substance of accusation was explained to both the accused. They pleased not guilty. The defence of the appellant is 2 that he has been falsely implicated by the informant out of enmity. 4. The prosecution examined three witnesses. Among them P.W.1 is Pramod Kumar. P.W.2 is Arun Kumar. Both are seizure list witnesses. P.W.3 is the informant. Learned Special Judge after considering the evidence of the witnesses acquitted the accused Hira Singh and convicted the appellant under section 7 of the E.C.Act and sentenced him as aforesaid. 5. Learned counsel for the appellant submitted that the appellant was a dealer in Public Distribution System, but there is absolutely no evidence that any sugar of his shop was being carried and that too for black marketing and therefore, the learned Special Judge was not justified in convicting the appellant. 6. In order to appreciate the submissions of the learned counsel, I have gone through the evidence of the above witnesses. 7. P.W.1 has stated that on 7.10.1089 at 10.30 A.M. the Officer In-charge, Sarmera had seized two bags of sugar in his presence and he had put his signature (Ext.1) on the seizure list. P.W.2 similarly has stated that on that date the Officer In-charge had seized two bags of sugar in his presence and he had put his signature (Ext.1/1) on the seizure list. 8. In cross-examination P.W.1 , however, has stated that he had seen the bags at the P.S. and he did not see the bags seized from any person. P.W.2 has also stated that the bags which were seized were in the Police Station and he did not see the tyrecart in the Police Station. 9. Therefore, though in presence of these two witnesses two bags of sugar was seized, their evidence clearly shows that they did not see as to from whose possession the sugar was seized. The evidence of P.W.3 also is that free sale sugar was available in open market at that time. Hence, it could not also be said that the two bags of sugar, were of P.D.S. shop of the appellant or at his instance bags are being carried. 3 10. P.W.3 has stated that on 7.10.1989 he got information that two bags of sugar of P.D.S. shop of the appellant were being carried by the tyrecart of accused Hira Singh for black marketing and he then gave written information (Ext.2) to the Police Officer. 11. The evidence of the informant, therefore, is also clear that he did not see the bags of sugar being carried. He had also not seen the appellant loading or getting loaded the bags on the cart. In his cross-examination he has stated that from one Ravi Bhushan he had got the above information but the said Ravi Bhushan has not been examined to prove that he had seen sugar being carried or had given such information. The witness at one place, of course, has stated that he had seen the tyrecart in front of the Police Station, but this is not his case in the written report and this is also not at all sufficient to show that any sugar was carried by the said cart or the said sugar was of the shop of the appellant. At paragraph 16 of the evidence this witness has stated that the police had found Hira Singh on the road and seized the bags there. Learned Special Judge has led emphasis on this evidence. But from that para it is not at all clear that he had seen the I.O. seizing the bags. The evidence of this witness, on the other hand, as mentioned above, is that he had simply seen the cart outside the Police Station. Learned Special Judge has also relied on the circumstance that the appellant was found fleeing. But there is no such evidence on record. P.W.3 has of course stated that the accused Hira Singh had stated before the I.O. how he got bags and that seeing the police the owner of the sugar fled away. But this is not admissible in evidence. 12. Therefore, I fully agree with the learned counsel for the appellant that there is no iota of evidence that the accused Hira Singh was carrying any sugar or that the said bags of sugar was of P.D.S. shop of the appellant. Therefore, learned Special Judge was not at all justified in convicting the appellant. 4 13. Accordingly, this appeal is allowed. The order of conviction and sentence passed by the learned Special Judge is set aside. ( Rekha Kumari.J.) PATNA HIGH COURT Dated: 7th May,2008 Surendra/ N.A.F.R.