1 Cri.AppealNo.340/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.340/1999 Sidram s/o Guruling Gatate Age: 40 Yrs., occu. Business, r/o Nilanga, Tq. Nilanga, District Latur. - APPELLANT VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.SS Chodhari Advocate for Appellant; Mr.VH Dighe, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 29th April, 2011. ORAL JUDGMENT: 1) Heard. The appeal was admitted on 14.9.1999. The appellant questions conviction in Special Case No. 3/1997 for an offence under Section 3 of Essential Commodities Act, 1955 directing him to undergo simple imprisonment for three months in terms of Section 7(ii) of the said act and to pay a fine of Rs.500/-, by judgment dated 28th July, 1999 of learned Special Judge, Latur. 2) Based on information, the Tahsildar 2 Cri.AppealNo.340/1999 directed the revenue authorities to coordinate with police to conduct raids in few hotels, where kerosene, meant for domestic purpose, is used for commercial purpose. In this situation, a hotel belonging to the appelant at Nilanga – Hadga road (commonly called as a Tapari) was visited. In a stove, which was illuminating, 1 ½ liters of kerosene and in a can, lying nearby, 2 litres of kerosene was found. It was taken charge under panchanama, purportedly signed by the accused/appellant. The kerosene was confirmed to be a blue-dyed kerosene as per Chemical Analyzer's report. On analysis of evidence, learned Special Judge found the appellant/accsued guilty. 3) I have gone through the evidence of six prosecution witnesses. There cannot be a doubt that raid was allegedly arranged at the instance of the learned Tahsildar, coordinated by police officers. The fact remains, whether it was a hotel at road-side, either owned by the appellant or a shed, used for residence. There is nothing to demonstrate, that it was a hotel by any licensing authorities. The seizure of blue-dyed kerosene from the stove, even if accepted, it more leans that it could have been used for domestic purposes, which is not banned/prohibited. The difference of rate of 3 Cri.AppealNo.340/1999 kerosene at the material time is illustrated to be Rs.6.34 ps. for the kerosene to be used for commercial use and blue-dyed kerosene was @ Rs. 3/- per liter. Thogh it is expected that blue- dyed kerosene is not to be used for commercial purpose, i.e. use in hotels, inns, permit rooms, however, finding the same in the stove or two liters of kerosene in the can lying near the stove, by itself would not tantamount that such user by the accused/appellant was for commercial purpose. Taking the evidence to its worth, the statement of accused under Section 313 Cr.P.C., of signing of the panchanama of seizure by itself would not establish his guilt for said siezure of kerosene to be used for commercial purpose. The legal position about definition of kerosene or about the applicability of provisions of Essential Commodities Act, has lost its significance as seizure element in the matter is wanting. 4) Considering the overall review of the evidence, I find that even if the accused has made the statement under Section 313 Cr.P.C., that by itself would not end to record conviction against him as the prosecution has to independently establish its case. Non- identification of the accused/appellant at the material time during evidence has also its 4 Cri.AppealNo.340/1999 importance, which needs consideration. 5) Taking survey of all the facts, the conviction recorded calls for interference. It is accordingly set aside. The appellant/accused is acquitted of the charge levelled against him. Fine amount, if deposited, be refunded to him after sixty days. (K.U.CHANDIWAL) JUDGE bdv/