DHIRENDRA Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against an appellate order being G.A. 56/R3 of the court of Addl. Sessions Judge, Bankura affirming the conviction of the petitioner under Section 7(1)(a)(ii) of the Essential Commodities Act 1955 for contravention of the provision of clause 7 occurring in Part II of the Iron and Steel (Control) Order 1956 (hereinafter referred to as the Order). The prosecution case was that the petitioner had acquired a quantity of iron joist etc. for the purpose of repairing his factory at Bankura but instead of doing so, he had otherwise dealt with it which constituted a contravention of clause 7 of the Order. The defence, inter alia, was that he did use the goods for the purpose of repairing his factory at Bankura and in any case, Part II of the Order had no application inasmuch as the goods supplied to him were "off grade" as distinguished from "prime quality" and further the prosecution did not adduce any evidence that he had in fact used the goods for any other purpose which alone could constitute as contravention of clause 7 of the order. Both the courts below on consideration of evidence adduced by the prosecution have held against the petitioner, convicted him as aforesaid and sentenced him to suffer simple imprisonment for one year and a fine of Rs. 3,000/- in default to suffer simple imprisonment for three months more.

(2.) The learned advocate for the petitioner has contended that the courts below were wrong in their finding that the goods in question were acquired by the petitioner for the purpose of repairing his factory at Bankura as there was no such evidence on record. The correctness; legality or propriety of this finding of fact cannot be successfully assailed in this revisional application as it does not appear that in coming to this finding the courts below had ignored any relevant evidence or relied upon any material not on the record. Principal contention raised on behalf of the petitioner was, however, that the prosecution had signally failed to bring home the charge against the petitioner because there was absolutely no evidence on record to suggest that the goods were used for a purpose other than repairing the factory at Bankura. In this connection the learned advocate for the petitioner has referred to the decision of the Supreme Court in State of U.P. v. Ramalaya Sharma Vaidya, AIR 1966 SC 78 in which it was held that mere non-user does not constitute any violation of clause 7 of the Order. There was no controversy about this proposition of law but the learned advocate for the State has contended that in the instant case there was in fact a finding that the articles were used otherwise and in this connection our attention was drawn to the observation of the learned lower appellate court at page 11 of the judgement under revision that the prosecution had adduced evidence which established beyond reasonable doubt that the articles were used for a purpose other than that for repairing the factory at Bankura. This contention does not appear to be sound not only because the learned Judge has not condescended to point out any such evidence but also because no evidence could be brought to the notice of this Court to show that the article were actually used for a purpose other than for repairing the said factory. The learned advocate for the State has also tried to support the finding of the learned Judge by referring to the statement of the petitioner made in the trial court under Section 313 Code of Criminal Procedure wherein he had stated that the steel foods were used by him in repairing the factory at Bankura. This statement has been rejected by the trial court as well as by the appellate court and in this situation part of it cannot be accepted as an admission of the fact that the goods were used but for a purpose other than for repairing the factory in question. It is no doubt on the record that the petitioner had disposed of the factory at Bankura even before the goods were acquired by him and in such situation it is quite probable that he might have used the goods for some other purpose; but it is not permissible for a criminal court to enter into the realm of probability and exonerate the prosecution from proving a fact so essential to bring home the charge. In this state of record, the finding of the learned Judge that the articles were used otherwise, being not based in any evidence cannot be sustained and the conviction is liable to the struck down on this score alone.

(3.) The learned advocate for the State has pointed out that previously the petitioner had unsuccessfully moved this Court in revision being Criminal Revision Nos. 422 and 423 of 1976 against the order passed by the learned Magistrate framing charge against the petitioner on the ground that he had no territorial jurisdiction to try the case. It was urged that in the said revision case it was held by Nag J. that the learned Magistrate had ample jurisdiction to try the case and that it was further held that the offending goods were disposed of by the petitioner instead of utilising the same for repairing his factory at Bankura. The order passed by the Hon'ble Mrs. Justice Nag did not and indeed could not contain any finding that the petitioner half disposed of the goods in question because the revisional application was made as soon as the charge was framed and before any evidence was adduced on behalf of the prosecution. Therefore, the earlier revisional application is hardly relevant in the present proceeding.