The court's decision was influenced by the lack of sufficient material to go into trial and the absence of evidence warranting any conviction.

1. This is a petition under Section 401/482, Cr. P.C. by the State against the order dated 19-8-82 passed by the learned Sessions Judge, Kamrup at Gauhati in Case No. C. M. No. 4(K-3)/82. By the aforesaid judgement and order, the learned Sessions Judge discharged three accused persons, namely, Achit Ranjan Dey, Santok Singh and Debendra Singh under Section 7(1) (a)(ii) of the Essential Commodities Act and under Sections 120(B), 407/409, IPC. Accused Debendra is the son of accused Santok.

2. On 4-3-81 a search was conducted by Bureau of Investigation (E. O.), Assam in the premises of M/s. Assam Spun Pipe and industries Ltd. Kalapahar belonging to accused Santok and found 524 bags of cement including 427 bags of imported cement. It has been alleged that the said cement was kept without any valid permit. Accused Santok is a contractor under C.P.W.D. and he has been allotted construction works in the C.R.P.F. campus at Khanapara. 600 bags of cement far the purpose of execution of the aforesaid works were allotted to accused Santok. Delivery of cement was taken from the State P.W.D. godown at Baisistha by accused Achit Ranjan Dey, a junior Engineer of C.P.W.D. and it was handed over to accused Debendra on behalf of accused Santok. Out of 600 bags of cement only 150 bags were carried to work side and the remaining 450 bags were unloaded in the above factory premises of accused Santok. As the said bags were found in the factory premises by Investigating Agency, the present prosecution has been started.

3. The main contention of Mr. Bhattacharyya, learned Public Prosecutor is that the learned Sessions Judge not only considered the entire case, but also considered the defence which is not permissible at the stage of framing charge. In my opinion, the contention of Mr. Bhattacharyya has no force as it is the duty of the court even at the stage of framing charge to consider whether there is sufficient material to go into trial. In other words whether the evidence collected by the prosecution, if unrebutted, warrant any conviction. In doing so, the court can also consider the material on record. In the instant case for the reason which I shall presently state, the learned Sessions Judge came to the conclusion only on the basis of evidence collected by the prosecution and the material available with him and as such there is no illegality.

4. The following facts are not disputed, namely 600 bags of cement were taken delivery of by accused Debendra from the State P.W. D. godown on behalf of C. P.W. D., that bags were handed over to accused Debendra who accepted these bags on behalf of accused Santok and that 150 bags were carried to the work side and balance kept in the factory premises.

5. On perusal of the case diary as made available by the learned Public Prosecutor, I find that no official of the C.P.W.D. was examined or no complaint was received from the C.P.W.D. that the bags of cement belonging to the C.P.W.D. were misappropriated by the accused persons. This is fatal for the prosecution. The driver of the vehicle Laxman stated before the Investigating Agency that it was not possible to carry 600 bags on same day to the work side and some bags were to be unloaded in the factory belonging to accused Santok. From the record which has been taken into consideration by the learned Sessions Judge, I find that accused Santok also informed the C.P.W.D. that out of 600 bags about 150 bags could be carried to the work side. One Assistant Engineer of C.P.W.D. also filed a petition before the court stating that accused Santok informed C.P.W.D. about keeping of cement in his factory. The learned Sessions Judge has rightly held that this would show that C.P.W.D. did not bring to the notice of the court or to the Investigating Agency about any misappropriation of cement. I am therefore, of the opinion that in view of the above position, no offence as alleged by the prosecution has been made out and the learned Sessions Judge rightly discharged