The prosecution must prove that the accused violated the provisions of the relevant order, and in the absence of statutory presumption, factual presumption should not be drawn.

JUDGMENT

Subhendu Samanta, J. - The instant appeal has been preferred against an order and judgment of conviction dated 31.08.1988 passed by Sri A. K. Chatterjee, the Learned Judge Special Court, (E.C. Act), Midnapore convicting the appellants and sentenced them to suffer simple imprisonment for one year each and to pay a fine of Rs. 1000/- each, in default to simple imprisonment for one month for the offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for the violation of para-5 of the West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of certain classes of Commercial transaction ) Order, 1973, in D.E.B.G.R. Case No. 12 of 1983.

2. Before enter into the merit of the instant appeal let me consider the prosecution case. In a nutshell, the complaint stated as follows- On March 16th 1983 One Kashinath Das the then Constable of Police, Garbeta Police Station lodged a complaint to Garbeta Police Station being Garbeta P.S. Case No. 13 dated 16th March 1983 under Section 7(1)(a)(ii) of Essential Commodities Act, contending inter alia on the same day at about 5.15 p.m/ the complainant intercepted 5 Rickshaw pullers with two bags of wheat each totalling of 10 bags. On interrogation it was found that the said rickshaw pullers were transferring the said 10 bags of wheat for the present appellants and on further interrogation it was further revealed that the appellants had purchased the 10 quintals of wheat from One MR Dealer at Bishnupur at the rate of Rs 2010/-Per quintals. They brought the articles by bus to Garbeta and were further transferring them to Amalagora after loading those goods in those 5 rickshaws. The appellants were asked to produce for a receipt or documents for holding the bags of wheat but they failed to produce the same. Hence this police case.

3. The investigation of the police is ended in charge sheet under section 7(1)(a)(ii) of Essential Commodities Act for the violation of paragraph 3 and 5 of West Bengal Wheat and Wheat Products (Licensing control and prohibition of certain Classes of Commercial Transactions) Order,1973.

4. The appellants were examined under section 251 of the CrPC and they were pleaded not guilty and claimed to be tried. During trial, 8 witnesses were examined on behalf of the prosecution but defence examined none. After completion of the trial Learned Court below passed the impugned judgment and convicted the appellants and sentenced them to suffer simple imprisonment of one year each and to pay a fine of Rs. 1000/- each, in default to simple imprisonment for one month.

5. Being aggrieved by and dissatisfied with the impugned order the instant appeal has been preferred.

'Points for determination:-

During the course of arguments a single point has been raised before this appellate court that, 'whether the appellants come within the meaning of Section 2(d) of West Bengal Wheat and Wheat Products (Licensing control and prohibition of certain Classes of Commercial Transactions) Order, 1973''.

Decision with Reason:-

During the course of arguments Learned Advocate for the appellant submitted that it has been stated in the FIR that a quantity of 10 quintals of wheat were ceased by the investigating agency at the place of occurrence.

The seized wheat was never measured or weighted either at the time of interception near Garbeta Bazar or in the Police Station.

During the course of investigation the said seized wheat were never measured as it was admitted by the P.W. 5 in his cross examination before the Learned Court below.'

6. He pointed out that carrying 10 quintals of wheat without proper document or receipt is not constitute an offence under Section 2(d) of West Bengal Wheat and Wheat Products (Licensing control and prohibition of certain Classes of Commercial Transactions) Order, 1973. In that score the appellants have neither violated paragraph 4 nor any provisions of paragraph 5 of the said Order.

7. He placed the said Order 1973 and cited Section 2(d) of