(1) Cri. Appeal - 322.1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 322 OF 1998 Vasant S/o Rambhau Patil, Age : 30 years, R/o. : Adgaon, Tq. : Erandol, Dist. : Jalgaon APPELLANT (Orig. Accused) VERSUS The State of Maharashtra (At the instance of Kasoda Police Station Crime No.15/94) RESPONDENT (Orig. Complainant) ... Mr. S.V. Warad, Advocate for the Appellant. Mr. V.H. Dighe, A.P.P. for the respondent/State. ..... CORAM : K.U. CHANDIWAL, J. DATED : 14TH MARCH, 2011 ORAL JUDGMENT:- 1. Heard. The accused-appellant questions the conviction recorded in Criminal case no. 61 of 1994 by order dated 14.9.1998 by the learned Special Judge, Jalgaon directing to suffer Rigorous Imprisonment for one year and fine of Rs.3000/-, for offence under section 3 r/w. 7 of the Essential Commodities Act. (2) Cri. Appeal - 322.1998 2. The appellant conducts a fair price shop at village Adgaon, Tq. Erandol, Dist. Jalgaon. P.W. 1 Arun Raghunath Mali, Supply Inspector lodged report that on 31.5.1994 he visited/inspected the fair price shop of the appellant for which he issued notice dated 11.6.1994. During the inspection, the complainant -Supply Inspector found following deficiencies : Between period from 24.3.1994 to 31.5.1994 the appellant lifted 87 Qunitals 37 Kg. 175 Gm. sugar and 15 Quintals rice, however, there is no record of disbursal of the same to the ration card holders, who were eligible to receive the same. Appellant did not produce such record, but subsequently, P.W.1 complainant himself collected the record under a panchanama from the shop of the appellant and lodged report as stated above. The learned Special Judge recorded that the supply of the quantity of sugar and the rice is proved, the distribution is not proved by the accused. Its burden was on the accused. The learned Special Judge felt that evidence of P.W.1 Supply Inspector and P.W. 6 Tahsildar should carry (3) Cri. Appeal - 322.1998 weightage as against all odds, as they have no grudge/grievance against the appellant to falsely implicate him. 3. P.W. 1 in his evidence below exhibit 12 states in paragraph 2 that no documentary evidence is produced to the Court to show that 87 Quintal sugar and 15 Quintal rice was released in favour of the appellant between 24.3.1994 to 31.5.1994. He was even unable to inform how much monthly quota of food grains was allotted for being distributed through the channel of the appellant. He did not record statement of the beneficiaries who indeed were left scattered for want of such supply. Though, in the FIR he stated of recording panchanama, however, he accepts on 31.5.1994 he has not recorded panchanama while taking the goods/registers in his custody. 4. Evidence of Tahsildar, P.W.6 also proceeds in tune to the evidence of P.W.1. According to him, at exhibit 19 is the grievance of the villagers received by him, who demonstrate that there was no regular supply to the villagers. He has produced at Article 7 (4) Cri. Appeal - 322.1998 Visit book, Article 8 Cash-Memo, Article 2 stock register and Article 1 license, while at article 4,5,7,8 and 9 are the receipt books. Since the appellant did not produce relevant record, show cause notice exhibit 37 was issued. He reiterated of drawing panchanama exhibit 38 in the absence of accused. 5. In the cross-examination, P.W. 6 accepts his inability to tell what was the allotted quota of sugarcane or wheat to the accused to be distributed to the card holders. He accepts Revenue authorities used to give allotted quota of goods. He could not satisfy from the lifting challan as to how much quota of sugar or wheat was lift by the accused though he had slumped copy of the challan. Article 12 was one of such challan produced by him but he was unable to satisfy whether goods shown against the name of the appellant were indeed lift by him. 6. Reading evidence of P.W.1 and P.W.6, it is certain that infirmities were writ large in maintaining record, but it was the fault of the Revenue authorities who did not have regular checks and did not keep visits (5) Cri. Appeal - 322.1998 upright. Barring few visits in a long span has added to the fuel in the villagers informing learned Tahsildar of non-supply of essential commodities. 7. Two card-holders from the village P.W. 3 and P.W. 4 did not accelerate prosecution case to establish inadequacy of supply on the part of the appellant or non-supply even if there was material available in the shop. P.W. 3 had grudge against the appellant since 50 Kg. of sugar demanded by him for the marriage ceremony in his house was not supplied. P.W.4 Narayan did not corroborate the prosecution. 8. It was submitted by learned A.P.P. that the infraction by the appellant was of Maharashtra Food Grains Rationing Order, 1966. To set forth his submissions, he read extract of judgment of learned Special Judge and tried to convince that the findings are in tune to the record available. 9. I do not agree that the learned Special Judge was justified in recording conviction in the absence of there being seizure of stock register nor (6) Cri. Appeal - 322.1998 its proof was placed. There was nothing before the Special Judge to demonstrate release of 87 Quintal of sugar or 15 Quintal of rice at and for the material period. The positive observations of such supply by the learned Special Judge was uncalled for. The learned Special Judge felt that inspite of lifting the essential foodgrains, the accused did not release it to the beneficiaries and there was infraction. As stated above, in the absence of such positive evidence, there could not have been conviction in terms of section 3 r/w. section 7 of the Essential Commodities Act, 1995 or breach of the Maharashtra Food Grains Rationing Order, 1966. The conviction recorded is unsustainable, without any acceptable evidence and therefore calls for interference. Criminal Appeal is allowed. Conviction recorded is set aside. Accused acquitted of the charges levelled against him. The bail bonds cancelled. Sd/- (K.U.CHANDIWAL) JUDGE arp