The prosecution must prove beyond reasonable doubt that the accused violated the specific provisions of the relevant laws. Failure to establish the elements of the offense will result in acquittal.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment and order dated 20.4.1987 passed by the Learned Judge, Special Court (E.C. Act) at Alipore, 24 Parganas (South) in Special Case No. 14(9)/85 (T.R. Case No. 121/86) convicting the appellant under Section 7(i)(a)(ii) of Act X of 1955 and sentencing him to suffer rigorous imprisonment for four months and to pay a fine of Rs. 500/-, in default to suffer Rigorous Imprisonment for one month more.

2. The appellant was carrying on business of building materials barring Cement in the name and style of “MULLICK BUILDERS”.

3. The appellant purchased 44 bags non Levy Cement on 14.9.1985 from a licensed dealer for the purpose of repairing and/or construction of his own residential quarter.

4. The appellant carried on the business and resided in the same premises.

5. On 16.9.1985 officers attached to the District Enforcement Branch, visited the premises of the appellant at 10.30 a.m. and stayed there till 11.15 a.m. they seized the above said bags of cement and lodged a First Information Report alleging, inter alia, therein that the appellant had violated Para 3 of the West Bengal Licensing of Dealers of Cement and Distribution of Levy Cement Order, 1982.

6. Thereafter a case being Special Case No. 14(9)/85 (T.R.Case No. 121/86) was initiated under Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 and a charge sheet was submitted by the police authorities.

7. The Learned Advocate for the petitioner/appellant submitted that :

i. The Learned Judge of the court below ought to have held that the appellant did not violate any provision of the Essential Commodities Act, 1955 including the provisions of the West Bengal Licensing of Dealers of Cement & Distribution of Levy Cement order, 1982.

ii. Mere possession of 44 bags of cement for own utilization did not ipso facto attract the provision of 10(1) of the West Bengal Licensing of Dealers of Cement and Distribution of Levy Cement Order, 1982.

iii. The appellant did not violate any provisions of the Essential Commodities Act, 1955 or Para 10(1) of the West Bengal Licensing of Dealers of Cement and Distribution of Levy Cement Order, 1982.

iv. It was not proper to conclude that the appellant had violated Para 10(1) of the West Bengal Licensing of Dealers of Cement and Distribution of Levy Cement Order, 1982 merely because of the fact that the residential house of the appellant was situated adjacent to the shop in question.

v. The Learned Judge of the court below should have appreciated that on the date when the raid was conducted masonry work was going on for which the said cement was stored and there was no ingredient contrary thereto and as such, when the charge of violation of Para 3 of the West Bengal Licensing of Dealers of Cement and Distribution of Levy Cement Order, 1982 was not proved, the charge for violation of Para 10(1) of the said Order, 1982 cannot be attracted, in the facts and circumstances of the case and on that ground alone no case can be started against the appellant.

vi. The Learned Judge of the court below failed to appreciate that the cement in question was purchased from a licensed dealer on 14.9.85 for construction and repairing work for residential quarter of the appellant and the police authorities came on 16.9.1985 when admittedly the masonry work in connection with the repairing and/or construction work was going on with the said cement.

vii. The judgment and the order of conviction and sentence dated 20.4.1987 passed by the court below are otherwise bad in law, without jurisdiction and erroneous.

8. The Learned Advocate for the State submitted that the appellant had stored the cement under the same roof for selling the same in the garb of construction work and the prosecution aptly proved its case and the appeal shall be dismissed.

9. A circumspection of the evidences of prosecution witnesses revealed that:-

i. PW-5, the Sub Inspector of Police who was then attached to District Enforcement Bra