The prosecution must prove the essential elements required for conviction under the Essential Commodities Act, including the violation of specific conditions of the licence and the knowledge of the accused regarding the contravention.

V.G. Palshikar, J.-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 Under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter reterred 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. 750A for offence Under Section 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. The prosecution story as emerges from reappreciation is that in the night of 22nd and 23rd September, 1985, at about 2.30 AM on the main gale of Jhamar Kotada mines truck no. RJY 5179 was stopped which was carrying 100 bags of cement driven by Gamana Ram and Birdi Chand was sitting by his side. On being questioned as to the ownership of the cement, Birdi Chand claimed that the cement belongs to him. On enquiry, according to the prosecution, it was revealed that the cement was levy cement and was being transported in violation of the Order of 1974. The accused persons after investigation were prosecuted. Birdi Chand is convicted to suffer rigorous imprisonment for one year and a fine of Rs. 3,000/-whereas Gamana Ram is convicted underS. 8 read with Section 3 of the Act to suffer three months rigorous imprisonment and a fine of Rs. 750/-. It is this order of conviction and sentence, which is challenged by each of the accused independently in the two aforesaid appeals.

4. Mr. Vijay Bishnoi, the learned Counsel appearing on behalf of the accused Gamana Ram submits that even if the entire prosecution evidence is accepted, conviction Under Section 3 read with Section 7 of the Act for violation of the Order of 1974 is not possible. In so far as the accused Gamana Ram is concerned, it was contended by the learned Counsel that Gamana Ram was merely driving the truck hired for transporting cement and there is no evidence on record to show that Gamana Ram had the knowledge of the fact that the truck is hired to transport levy cement in contravention of the Order of 1974. In the absence of such evidence, according to the learned Counsel, no conviction Under Section 8 of the Act for abetting the offence for violation of any order thereunder is possible.

5. I have carefully considered the submissions of the learned Counsel and I feel that both the contentions are well founded and are liable to be accepted.

6. The provisions of Section 3 of the Act provide and enable the State Govt. to make orders from time to time to control certain commodities which are defined as “essential commodity” either by the Central Govt. or by the State Govt. It was in exercise of these powers that the Govt. of Rajasthan issued The Rajasthan Cement (Licensing and Control) Order, 1974, to control licences and sale of cement in the State of Rajasthan. This Order defines what is meant by levy cement. The definition reads thus: 2 Definitions, - In this order, unless the context otherwise requires: (aa) “Levy Cement” means that part of production of cement with reference to the installed capacity of a cement plant as may be determined by the Central Government from time to time, not being more than 66.6 per cent of the installed capacity of the cement plant.” Clause 3 of the Order provides that no person shall carry on the business as a stockist of cement except in accordance with the terms a