Criminal Appeal (SJ) No.26 of 1994 **** Against the judgment, 05.02.1994, passed by Sri Jiwan Tigga, Special Judge, Essential Commodities Act, Nalanda at Biharsharif, in Silao P.S. Case No. 131 of 1988 **** Narendra Kumar, son of Sri Bodhu Mahto, resident of Hassanpur, P.S. Silao, district Nalanda .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. N.K. Agarwal, Sr. Adv. with M/S D.N. Tiwari & Anujit Sinha, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 7 of the Essential Commodities Act and has been sentenced to undergo simple imprisonment for two months with a fine of Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for one month. 3. The prosecution case, as alleged that five bags of sugar and 18 bags of dalda were recovered from the godown of accused, Laxmi Kumar. It is further alleged that other accused who had shop of Public Distribution 2 System at village Hassanpur had sold the same articles to the accused, Laxmi Kumar. 4. On the basis of written report the case registered and after completion of the investigation the charge sheet submitted against Laxmi Kumar and Narendra Kumar, cognizance was taken and trial proceeded. 5. The learned counsel for the appellant has contended that the articles were seized from the godown of Laxmi Kumar and there is no evidence relating to black marketing of the articles by this appellant. It is further contended that in statement under Section 313 of the Criminal Procedure Code no question was asked about the black market by this appellant of the articles. It is, further, contended that he has categorically stated that he distributed the sugar and other articles to the consumers, for which the cash memo and stock registered have been properly maintained. However, the conviction has been maintained on the ground that appellant had not produced the stock register whereas there is neither any allegation nor charge or accusation employed and conviction can not be maintained for not producing the same in his defence. 6. The learned counsel for the State, however, contends that he has not produce the cash memo in his defence, hence, he may be deemed to have black marketed these articles. 7. There is allegation that the appellant has transferred those articles in black market through Laxmi Kumar. However, neither the investigating officer nor the informant has been examined in this case and though five witnesses examined in this case and though it has been deposed that the article seized from the godown of Laxmi Kumar and the search and 3 seizure list proved, but, there is no evidence that the said articles were the articles in possession of Laxmi Kumar were sold by this appellant in black market. Further, in statement under Section 313 of the Criminal Procedure Code the appellant has stated that he has shop of Public Distribution System, but, there is neither any evidence that he black marketed the said seized articles nor there is any question asked under Section 313 of the Criminal Procedure Code that he sold the articles to Laxmi Kumar in black market and, hence, there is no evidence nor any opportunity has been given to explain his statement under Section 313 of the Criminal Procedure Code and though he has specifically stated that he distributed the articles amongst the consumers and for non-production of the cash memo and stock register in defence is not an offence he can not be fastened with the liability when the same was not asked to produce and conviction of the appellant can not be on the basis of the lapses on the part of the defence, but, the prosecution has to stand on his own way and prove the charge. 8. However, having regard to the fact that there is no evidence to support the charge alleged and, hence, the order of conviction and sentence recorded by the learned lower Court is not maintainable and, hence, the order of conviction and sentence is hereby set aside and the appeal is allowed. (Gopal Prasad, J. ) The Patna High Court, The 22nd day of July 2011, N.A.F.R., S.A.