BIRDI CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BOTH these appeals are directed against the judgment delivered by the Special Judge, Essential Commodities Act, Jodhpur, convicting the accused persons for violation of Rajasthan Cement Control Order, 1974 (hereinafter referred to as `the Order of 1974' ). The accused Birdi Chand has been sentenced to one year's rigorous imprisonment and a fine of Rs. 3,000/- for offence u/s. 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as `the Act') and in default of payment of fine, to further undergo three months' regorous imprisonment. The accused Gamana Ram has been sentenced to three months' rigorous imprisonment and a fine of Rs. 750/- for offence u/sec. 8 of the Act and in default of payment of fine, to further undergo rigorous imprisonment for 21 days. Independent appeals have been filed by the accused which arise out of the same trial and can be disposed of by the same order.

(2.) I have heard the learned counsel for the accused and the learned Public Prosecutor. I have scrutinised the record and reappreciated the evidence.

(3.) IN the present case, the prosecution has charged the accused for taking out levy cement on such grounds pointed out by the learned counsel for the accused. Even if the entire prosecution evidence is accepted, there is no proof on record to prove that the 100 bags of cement carried in the truck was the levy cement. Mere stamp of the words "levy cement" on the bag is grossly insufficient to convict a person u/s. 7 of the Act. Merely by stamping a bag the cement does not become levy cement. For example, if a bag is carrying cement and the stamp is of sugar, the contents would not be sugar but will continue to be cement. The provisions of the Control Order will have to be scrutinised for this purpose. Levy cement has been defined as a particular per centage of the production capacity of particular cement manufacturing plant and thus dealing in such levy cement by a dealer defined under the Order in any unauthorised manner, which is offence. For such prosecution to be successful the prosecution has to prove the following:- (i) that the cement was levy cement i. e. it was forming part of 66. 6% of cement manufactured by the plant at the point of time and was, therefore, liable to be dealt with inthe manner prescribed under the Order; (ii) that the accused was not a licence holder under the Order; (iii) that he was dealer of cement, which was levy cement i. e. either he was selling or holding cement, which was levy cement in contravention of the terms of the licence, he has obtained or without licence.