1 AJ-623.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE - CRIMINAL CRIMINAL APPEAL NO.623 OF 1993 Annusingh Channusingh Rajput, Age: 25 years, resident of Akiwat, Tal: Shirol, District: Kolhapur. .... Appellant - Versus - State of Maharashtra .... Respondent S/Shri Hrishikesh A. Mundargi i/b A.P. Mundargi for the Appellant. Ms G.P. Mulekar, Additional Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: MARCH 23, 2011 ORAL JUDGMENT: 1. This appeal is directed against the appellant's conviction for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (for short, "the EC Act") and sentence of RI for three months and fine of Rs.300/-, inflicted upon the appellant by the learned Special Judge, Kolhapur on conclusion of trial of Special Case No.16 of 1991 before him. 2 AJ-623.93 2. Facts which are material for deciding this appeal are as under: On 8-3-1991 the appellant was found to be in possession of 75 litres of kerosene along with measuring instruments and a funnel on his bicycle. The appellant did not have any licence to hawk kerosene or to sell kerosene in any manner. Therefore, an offence was registered and on completion of the investigation charge- sheet was sent to the Special Judge at Kolhapur. The learned Special Judge explained the particulars of the offence to the appellant as he was to be tried summarily, in the following words: "That you on 8-3-1991 at or about 15-00 hours in the limits of village Danwad, Tal. Shirol, Dist. Kolhapur, on the road going to Takali to Danwad, near the house of one Gargote were found carrying kerosene about 75 liters along with measurement instruments, without valid licence and in contravention of protitions of cl.3 of mah. Kerosene dealer's licensing order 1966 and thereby you have committed an offence punishable under section 3 and 7 of the Essential Commodities Act." The prosecution examined in all five witnesses 3 AJ-623.93 in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of the defence raised, the learned trial Judge raised the following point for determination and answered it in the affirmative: "1. Whether the prosecution has proved that accused was found in possession of kerosene without licence and in contravention of the provisions of clause 3 of Maharashtra Kerosene Licensing Order, 1966? In the Affirmative. He then proceeded to convict and sentence the appellant, as indicated earlier. Aggrieved thereby, the appellant has preferred this appeal. 3. I have heard the learned counsel for the appellant and the learned APP for the State. What the appellant was charged with and convicted of is mere possession of 75 litres of kerosene. The learned APP could not point out any prohibition in the Orders issued under the EC Act prohibiting possession of 75 litres of kerosene. The learned APP submitted that in fact the appellant was selling kerosene without a valid licence since it is clear from the fact 4 AJ-623.93 that he was carrying 75 litres of kerosene on a bicycle with a funnel and measuring instruments. Even so, the learned counsel for the appellant submits that in view of the judgment of this Court in Yeshwant Pahuji Khandwi v. The State of Maharashtra, reported in 1995 (1) Bom.C.R. 565 which, in turn, is based on a judgment of the Supreme Court in Manipur Administration v. M. Nila Chandra Singh, reported in AIR 1964 SC 1533, without there being any instances of sale, it would not be permissible to hold that the appellant was carrying on business as a dealer or hawker and therefore, there would be no question of his contravening the Maharashtra Kerosene Dealers' Licensing Orders, 1966. In view of this, the conviction of the appellant and the sentence imposed upon him cannot at all be sustained. 4. The appeal is, therefore, allowed. The conviction of the appellant for the offence punishable under Section 7 of the EC Act and the sentence of RI for three months and fine of Rs.300/- are set aside. Fine, if paid, be refunded to the appellant. The bail bonds stand cancelled. Sd/- (R.C. CHAVAN, J.)