MARIAPPAN Vs. STATE

JUDGEMENT

(1.) THE appellant, was the sole accused in S. T. C. No. 18 of 1985 on the file of the Special Court, E. C. Act cases, Pudukottai. THE charge against him was that he had violated Clause 3 of the Cement Quality Control order 1962, punishable under Sec. 7 (1) (a) (ii) of the Essential Commodities Act there were two counts of charges one relating to his having sold one bag of cement to P. W. 2 Ranganathan on 20. 6. 1983, which on having been used by P. W. 2 on his floor, dissolved in water two or three days later the second count of the charge was that at 2. 30 a. m. on 24. 6. 1984, P. W. 7 the Inspector of Police, Civil Supplies C. I. D. inspected premises No. 13 Big street, Kamaraj Nagar , Ariyamangalam and found 51 bags of adulterated cement stored there.

(2.) THE prosecution case was that the premises in question had been taken on a monthly rental by the appellant from P. W. 3, Rajunaidu , the landlord of the premises. THE search by P. W. 7 was made in the presence of P. W. 1, who has attested the mahazar , Ex. P. 1. Ex. P. 5 is the search list. THE appellant was present during the search and the copy of the search list was served on him under his acknowledgment. P. W. 7, who had taken samples, from the Cement, found in the premises had despatched them for analysis through court. Ex. P. 4 is the report of the chemical testing and analytical laboratory attached to the Department of Industries and commerce, Guindy. This report shows that the sample sent for analysis did not confirm to any of the following specifications for cement. 1. I. S. 269-76 - Ordinary Portland Cement. 2. I. S. 1489-76 - Portland Pozzolan a Cement. 3. I. S. 455-76 - Portland Slag Cement. 4. I. S. 8041-78 - Repaid hardening Cement. 5. I. S. 8043-78 - Hydrophobic Cement. 6. I. S. 6452-E-76 - White Portland Cement. 7. I. S. 6909-76 - Super Sulphated Cement. THErefore, it was concluded that the seizure was adulterated cement. After obtaining the report of analysis, this prosecution was initiated.

(3.) MR. A. Natarajan , the learned counsel for the appellant has challenged the conviction on the following grounds: (1) The prosecution had not carried out all the tests prescribed under Clause 2 of the Cement Quality Control Order, 1962 and had chosen to perform tests only in respect of 8 varieties of cement and the failure to perform tests in respect of other 2 specifications would entitle the appellant for an acquittal. (2) Even if the entire evidence let in by the prosecution were to be taken at its face value, there was no evidence to indicate that the appellant had either stored for sale, sold or distributed any cement, which was not of the prescribed standard. (3) Ex. P. 4 the report of analysis will not be admissible in evidence and will have to be excluded, since it had not been proved in accordance with law. As a corollary to this argument, he has submitted that if ex. P. 4 were to be excluded, there was no proof that the cement was adulterated.