JUDGMENT: The appellant was convicted by the learned Principal Sessions Judge and Special Judge (E.C. Act), Madurai in S.T.C. No.29 of 1994 under Sec.7(1)(a)(ii) of the Essential Commodities Act read with 0.3(3), 4, 5, 7 and 35 of the Fertiliser (Control) Order, 1985 and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,500, in default to suffer simple imprisonment for 4 months.

2. The appellant is the licenced fertiliser dealer bearing licence No.703/92. The licenced premises is at Mecca Mandapam. On 16.9.1992, at about 12.00 hours, the complainant, Fertilizer Inspector, Thakkalai, inspected the premises of the accused and on physical verification, found an excess stock of 11.312 kgs of various chemical fertilizers and there was also a shortage of 120 kgs. of Muriate of Potash. At the time of inspection, the appellant was not there, but one salesman, T. Chellam was available and the said person could not account for the excess and deficit in the stock. Therefore, after giving a day’s time to explain, P.W.1, the Complainant went back and returned the next day. On 17.9.1992 at about 12 hours, when the complainant went to the premises of the accused, the appellant was present and when queried about the excess and deficit stocks, he could not reply. Therefore, the appellant has been prosecuted.

3. The learned Special Judge taking into consideration the evidence of P.Ws. 1 to 3 and Exs.P-1 to P-11 and also the evidence of D.W.1 and Ex.D-1 came to a conclusion that the offence alleged against the appellant stood proved and therefore, convicted the appellant. Hence, this appeal.

4. P.W. 1 is the Agricultural Officer at Nagercoil empowered to check the premises of the appellant under the Fertiliser (Control) Order, 1985. His evidence is that he inspected the premises of the appellant on 16.9.1992, found excess and deficit stock as described above and thereafter, gave an opportunity to the salesman to explain the alleged excess and shortage the next day. He also visited the shop on 17.9 1992. Though the appellant was present, he could not give any explanation for the deficit and excess stock of the fertilisers. P.W.2, the Village Administrative Officer, who was present during the inspection on 17.9.1992 speaks that he was watching the inspection of P.W. 1 and a statement was recorded from the salesman, Chellam and the appellant refused to give any statement. P.W.3, the Agricultural Officer would say that he succeeded P.W. 1 and after going through the inspection notice, found violations of the Fertiliser (Control) Order. Therefore, after getting appropriate authorisation, the complaint was lodged.

5. The appellant while questioned under Sec. 313, Crl.P.C. filed a written statement, wherein he alleged that certain vouchers and bills were taken away by P.W. 1 and therefore, he could not produce the correct accounts. On his behalf, he examined, one Rathinakumar, who is his nephew. He only says that the Labour Officer found that there was no salesman as per Ex.D-1. Insofar as the excess and the deficit stock in certain items of fertilizers are concerned, no explanation has admittedly been offered by the appellant and therefore, the fact that there was excess stock of 11.312 kgs of various chemical fertilizers and a shortage of 120 kgs of Muriate of Potash stand established.

6. Coining to the provisions regarding violations, the first violation as alleged by the prosecution is O.3(3) which says that no dealer shall sell or offer for sale any fertiliser at a price exceeding the maximum price or rate fixed under this clause. Insofar as this violation is concerned, there is a veritable attempt made by P.W.1 himself that his investigation did not reveal that the appellant sold the fertiliser for a higher price. Moreover, mere excess stock or deficit stock cannot lead to a presumption that the fertilizer should have been sold for a higher price. May be it is an unaccounted sale. Therefore, the violation of 0.3, R

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