VIDYA SAGAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order both dated 6.6.1992 passed by Special Judge, Nalanda at Biharsharif in Bihar Police Station Case No. 115 of 1989 convicting and sentencing the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ - and in default to undergo rigorous imprisonment for a further period of three months under Section 7 of Essential Commodities Act (In short E.C. Act") for contravening the provisions of Sections 5, 5(A) and 5(B) of Aluminium (Control) Order, 1970 as amended in the year, 1981.

(2.) CASE of prosecution, in short, is that on 7.3.1989 at 00.30 hours, informant Sub -Inspector Babu Ram Murmu (P.W. 2) recorded his own Fard -e -bayan (Exhibit -3) stating therein that about one hour prior to the time of his recording his Fard -e -bayan, when he was in search of illicit spirit in Khasganj area, he received a confidential information that the stolen aluminium wires of Bihar (Sohsarai) Police Station Case No. 14 of 1989. under Section 379 of IPC were kept concealed in the shop of appellant. On this information, informant alongwith his party comprising of Sub -Inspector Shambhu Pathak (PW 1), Assistant Sub -Inspector Ram Awadhesh Ram (PW 3), Sub -Inspector Subodh Kumar Srivastava (PW 4), Sub -Inspector Sitara Khan (PW 5) and some constables alongwith witnesses, namely, Md. Sajjad (PW 6) and Baba Bombaywaia (not examined) raided the shop -cum -house of appellant. In the meantime, Deputy Superintendent of Police and Police Inspector, Biharsharif also reached there. In the raid, fifty ingots of aluminium were recovered from the shop of appellant for which he could not produce any paper. The ingots were seized and seizure list was prepared. The informant, in his Fard -e -bayan, stated that appellant had contravened the provisions of Sections 5, 5A and 5B of Aluminium (Control) Order, 1970, In his Fard -e -bayan, he further stated that because aluminium ingots found in the shop of appellant, appeared to have been made by melting stolen aluminium wires, therefore, appellant has committed offence under Section 414 of Indian Penal Code (In short "IPC") also. On the basis of Fard -e -bayan of informant, a formal first information report (Exhibit -4) under Section 414 of IPC and Section 7 of E.C. Act was drawn and police, after investigation, submitted charge -sheet under aforesaid sections and cognizance of the offence was taken and appellant was put on trial.

(3.) IN order to prove its case, prosecution examined six witnesses. Babu Ram Murmu (PW 2) is the informant. Shambhu Nath Pathak (PW 1), Ram Awadhesh Ram (PW 3), Subodh Kumar Srivastava (PW 4) and Sitara Khan (PW