JUDGMENT
Chandra Mohan Prasad, J.
1. This appeal is directed against the judgment dated 7th March 1992, passed by the Special Judge, Darbhanga, in trial No. 88 of 1980 whereby the appellant has been convicted under Section 7 of the Essential Commodities Act and he has been sentenced to undergo rigorous imprisonment for six months.
2. Besides the appellant one other accused Amresh Choudhary also faced trial before the trial Court but he (Amresh Choudhary) was acquitted and the appellant has been convicted and sentenced as above. The prosecution case is based on Ext. 1, fardbeyan of the informant wherein he alleged that Amresh Choudhary who was a P.D.S. dealer had lifted ten bags of sugar for selling in black market and that the sugar was loaded on a bullock cart which was being driven by the appellant. He further stated that in the morning he saw Amresh Choudhary talking with some persons regarding the sale of the sugar which was being carried on the cart. The informant stopped it and gave a written report i.e. fardbeyan before the police authority at Singhwara P.S. On the basis of the fardbeyan the first information report (Ext. 3) was registered at the police station. Sugar was seized and the appellant was also apprehended. Seizure list (Ext. 4) was prepared for the seizure of the sugar and on conclusion of investigation charge sheet was submitted and then on trial the appellant was convicted and sentenced.
3. As many as five witnesses were examined by the prosecution. P.W. 1 Indu Bhushan Choudhary is a witness in the point of carriage and seizure of the sugar, P.W. 2 Ram Eqbal Choudhary is the informant himself, P.W. 3 Ram Nandan Choudhary and P.W. 4 Suresh Choudhary were also examined on the point of carriage and seizure of the sugar but these witnesses turned hostile and they did not support the case of the prosecution. P.W. 6 Ratneshwar Pd. Singh is the Investigating Officer of this case.
4. Two defence witnesses were also examined. They are D.W. 1 Mauzelal Tewary and D.W. 2 Ram Karn Choudhary but these two defence witnesses were examined on the point relating to the case of another accused Amresh Choudhary. These witnesses have simply deposed that fair and proper distribution of sugar was being made by the P.D.S. dealer, Amresh Choudhary.
5. The informant, P.W. 2 deposed that on 7-10-1986 at evening time he informed the Singhwara P.S. that Amresh Choudhary who was a P.D.S. dealer had loaded sugar on tyre cart of Shiv Shankar Choudhary (appellant). The sugar was being carried to Bharwara for sale and on his such information police recovered and seized 18 bags of sugar loaded on bullock cart which was being driven by the appellant who was also arrested and that another accused Amresh Choudhary managed to flee away.
6. In his cross-examination at paragraphs 13, 14 and 16 he further deposed that he had seen the sugar bag being taken out from the shop of Amresh Choudhary and then being loaded on the appellant’s bullock cart. He also deposed in para 19 that two days after the occurrence the P.D.S. shop of Amreshy Choudhary was inspected and stock of the shop was verified.
7. P.W. 1 Indu Bhushan Choudhary deposed that on hulla he came near the gate of Singwara P.S. and saw that ten bags of sugar loaded on the appellant’s bullock cart which was seized by the police. He further deposed that the appellant was driving the bullock cart as the cart-man.
8. P.W. 5 (I.O.) has proved the filing of the fardbeyan at the police station and then recording of the first information report (Ext. 3) and also preparation of production and seizure list (Ext. 4). He further deposed that sugar was seized and the appellant Shiv Shankar Choudhary was arrested. At paragraph 11 of his cross-examination he deposed that after the occurrence he had locked the shop of Amresh Choudhary and had deputed a Chaukidar there and that on 4-1-1986 in presence of Supply Inspector and the Block Development Officer Singhwara the stock of sugar, stock register and distribution register were verified and every thing was found correct. On consideration of the evidence as above the learned trial Court did not find case against another accused Amresh Choudhary and he was acquitted. So far the appellant is concerned the learned trial Court came to a finding that the appellant was possessing ten bags of sugar and he was unable to explain it’s position. Regarding the Government’s order No. G.S. R-49 dated 7-8-1986 it was found that this order provides a limitation over possessing of sugar which is essential commodity to the maximum limit of 5 quintals only for personal consumption and there is provision that anybody or business man holding sugar in a quantity exceeding 5 quintals will have to get licence or permission from a competent authority for holding the same. Since the appellant was possessing sugar in a quantity exceeding five quintals it was a violation of the conditions under the Government order No. G.S. 49 which is punishable under Section 7 of the Essential Commodities Act. Hence the appellant has been convicted by the trial Court as stated above.
8. From the evidence and the circumstances of the case the appellant has been proved to be a cart man driving the cart on which sugar was loaded. The prosecution case was that the sugar belonged to one Amresh Choudhary who was a P.D.S. dealer and the trial Court acquitted him due to there being no sufficient evidence against him. So far the appellant is concerned the plain and simple case against him is that he was carrying sugar on the cart as the cart-man. During the hearing the learned counsel for the appellant argued that it is nobodies case nor there is evidence to show that the appellant had possessed the sugar as a dealer. He further argued that the petitioner is a tyre cart man who was carrying the sugar on some meagre wages. The appellant has been convicted to a term of six months rigorous imprisonment. The minimum punishment provided under the Essential Commodities Act is three months.
10. Considering the evidence on record I find that the prosecution has been able to prove that ten bags of sugar in a quantity of ten quintals were recovered and seized while the appellant was carrying it in the bullock cart. The evidence is also to the extent that the appellant did not disclose the name of the owner of the sugar. Under the circumstances when the sugar was possessed by the appellant as a cart-man he became liable for conviction under Section 7 of the E.C. Act for the violation of the condition under the aforesaid Government Order No. G.S. 49, therefore, I feel that the conviction of the appellant is justified. But so far the quantum of sentence is concerned, I feel that under the circumstances of the ease a minimum sentence of three months R.I. will meet the interest of justice. Therefore, the sentence of the appellant is reduced to the period of three months of rigorous imprisonment.
11. In the result the appeal is dismissed with the modification in the sentence as indicated above.