Hon'ble Arvind Kumar Mishra-I, J.

1. Heard Sri Kunwar Ritesh Kumar, learned counsel for the appellant, Sri B.D. Nishad, Sri Sushil Kumar, learned AGAs for the State and perused the record.

2. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 26.03.1987 passed by Special Judge, Ghazipur, in Criminal Case No.15 of 1985 State Vs. Mohd. Naseer, under Section 3/7 Essential Commodities Act, Police Station- Shadiabad, District- Ghazipur whereby the appellant was convicted under Section 3/7 Essential Commodities Act but instead of being sentenced, he was released on probation on condition that he will keep peace and be of good behaviour for a period of one year on furnishing a personal bond for Rs.1000/- with two sureties each in the like amount.

3. The factual matrix of this case as discernible from the certified copy of the impugned judgment appears to be that on 19.10.1984 at about 7:00 p.m. in village Hansrajpur, fair price shop of accused Mohammad Naseer was licensed for distribution of kerosene and diesel oil was checked by Station Officer, Police Station Shadiabad, District Ghazipur. The raiding party found many irregularities and 235 litres of diesel oil was collected in excess of the stock. The Station Officer was accompanied by Constable Shyam Narain Singh who was on patrolling duty when information was received by the Station Officer for trafficking in kerosene and diesel oil and black marketing of the same being committed by the appellant. Head Constable Ram Swarath Singh was also taken from police outpost Hansrajpur. On check up it transpired that 985 litres of diesel oil was shown existing in the stock register and kerosene oil was found not mentioned in the stock register. After physical verification, 6 drums of diesel oil in the quantity of 1320 litres were found as against 985 litres as shown in the stock register meant for the shop. No price list was displayed at the shop of the appellant and no cash memo was there in his shop. No such cash memo was shown by the appellant. The stock register and sale register were taken into police custody. No public witness was available to the Station Officer to witness factum of check-up of stock register and the kerosene and diesel oil. The appellant and the recovered material were taken into custody and were taken to the Police Station Shadiabad. Recovery memo was prepared by S.O. Dhirendra Kumar Rai, on the basis of which Check FIR was entered/lodged on 19.10.1984 at 10:10 p.m., at Police Station Shadiabad and after completing the investigation, charge sheet dated 13.11.1984 was submitted against the accused Mohd. Naseer. Sanction for prosecution was obtained on 01.02.1985.

4. The accused denied the allegations and claimed his implication false on the ground of enmity. He has stated that he is licensee of the diesel and kerosene oil. 335 litres of diesel was purchased from Bharat Auto Centre, Lanka, Ghazipur and was unloaded and kept in his shop and immediately thereafter, the Station Officer reached and checked the shop.

5. The prosecution in order to prove charge against the appellant got examined Constable Srikant Tiwari PW-1, Head Constable Ram Swarath Singh PW-2, Constable Ram Baliram PW-3 and Baldeo Singh PW-4. Except as above, no other testimony was adduced by the prosecution.

6. The defence got examined Gauri Shanker Rai DW-1, Mohd. Jamil DW-2, real brother of the appellant Mohd. Naseer and Sheo Kumar Tiwari DW-3. Thereafter, the evidence for the defence was also closed and the case was posted for arguments.

7. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction under Section 3/7 Essential Commodities Act against the appellant but instead of being sentenced, he was released on probation on condition that he will keep peace and be of good behaviour for a per