The prosecution must prove beyond reasonable doubt that the seized commodity is cement as defined in the relevant legislation for a successful conviction.

1. - This revision is directed against the order of framing of charge. The petitioners have been charged of the offence Under Section 3/7 of the Essential Commodities Act for having contravened Clause 17 and 21 of the Rajasthan Cement (Licensing and Control) Order, 1974 (hereinafter to as "the Order, 1974").

2. The petitioners are said to have been found in possession of ten bags of Cement. A contention has been raised on behalf of the petitioners that the commodity seized in not cement and as such no offence has been committed by the petitioner. Mr. Ajitmal Singhvi invited my attention to the report of the Assistant Director, State Forensic Science Laboratory, Rajasthan, Jaipur, in which it has been opined that the samples do not conform to the specifications of Portland Cement. Although it is stated that the samples are of cement like building material, but it is no where stated in the report that the samples are of cement.

3. I have considered over the above submissions of Mr. Singhvi. It may be mentioned that the report of the State Forensic Science Laboratory is not to the effect that the commodity, the samples of which were sent for expert examination, are not of cement. Had there been such a report then it can be said that there is no ground for framing of the charge. The report simply states that the samples do not conform to the specifications of Portland Cement and the samples are of Cement like building material. At the time of the seizure of the bags, the commodity seized had been taken to be cement. In order to be successful in the prosecution, the prosecution would be required to prove beyond all reasonable doubt that the commodity said to be seized from the possession of the petitioners, is cement. The "Cement" has been defined in Clause 2(a) of the Order, 1974. According to the definition, any variety of cement manufactured in India, including certain varieties stated in the definition, would be considered to be cement. For any commodity to be a cement, that commodity must undergo some manufacturing process. It will have to be proved by the prosecution that the commodity seized in the commodity, which had undergone some manufacturing process and is a variety of cement. If the prosecution fails to establish that the commodity seized is cement, no conviction of the petitioners can be recorded. At this stage of the case, simply on the basis of the report, it cannot be taken that the commodity seized, is not cement, as the report is not a negative one.

4. Thus, it cannot be said that the trial Magistrate committed any error in framing of the charge.

5. With the above observations, the revision petition is hereby dismissed.

6. The learned Counsel for the petitioners, however, urged that the case may be transferred from the Court of Chief Judicial Magistrate, Sirohi to the Court of the Munsiff and Judicial Magistrate, Abu Road, for expeditious disposal of the case.

7. In view of the above prayer, the case is transferred to the court of the Munsif and Judicial Magistrate, Abu Road.Revision dismissed.

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