ORDER :

Raj Beer Singh, J.

1. Heard learned A.G.A. for the State and perused the record. None has appeared on behalf of the appellant despite calling the case in revised list.

2. In view of the repeated reports of District Judge, Saharanpur to the effect that record of trial court has been weeded out, no useful purpose would be served by keeping this appeal pending indefinitely. Accordingly, the Court considers it appropriate to decide the case on the basis of the material available on record.

3. This criminal appeal has been preferred against the judgment and order dated 21.12.1988 passed by learned Special/Additional District & Sessions Judge, Saharanpur in special case no. 14 of 1988 (State vs. Raj Kumar), under Section 3/7 of Essential Commodities Act, P.S. Kankhal, District Saharanpur, whereby accused-appellant Raj Kumar has been convicted and sentenced to 2 years rigorous imprisonment under Section 3/7 of the Act and one years rigorous imprisonment under Sections 4(1) and 8 of the Act.

4. From perusal of record it appears that record of trial court is not available as the same has been weeded out and in the absence of record of trial court, it is not possible to hear this appeal on merits. Perusal of record also shows that record of the trial court was called for vide order dated 30.01.2013, but by report dated 24.05.2013 of Incharge Record Room, District Court, Saharanpur, it was informed that record of the case has been weeded out and only judgment is there, which was sent to this Court. Thereafter vide order dated 06.01.2017, this Court has directed for reconstruction of record, but by letter dated 17.05.2017, it was informed by C.J.M., Saharanpur that despite sufficient efforts, except the impugned judgment, no other document pertaining to the case could be available. Thereafter by letter dated 16.07.2020, District Judge, Saharanpur has informed that despite due and diligent efforts, only copy of judgment has been reconstructed and that matter is old and no record except copy of judgment could be reconstructed. It has also been informed that an inquiry has also been conducted regarding weeding out of record. Along with that report, the report of Additional District Judge, Court No. 3, Saharanpur was also annexed, wherein it has been reiterated that reconstruction of record is not possible as no document pertaining to the case is available.

5. In view of above-stated facts and circumstances, it is apparent that record of trial court except judgment has been weeded out and it has been informed by the concerned District Judge that reconstruction of record is not possible. The case relates to an incident of 1987 and thus, it would also not be possible and desirable to direct for retrial of the matter. It would also be pertinent to mention here that the case relates to conviction of appellant under Section 3/7 E.C. Act and appellant has been sentenced to two years rigorous imprisonment and one year rigorous imprisonment under two heads vide judgment and order dated 21.12.1988 and that this appeal is pending since 1989.

6. It is well settled that in absence of original record, it is not possible to arrive at the decision whether the findings recorded by the court below are based on evidence and whether the conviction of appellant is justified or not. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855 the Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under:

"18. Coming to Section 425, which has already been quoted above, it deals with powers of the Appellate Court in disposing of the appeal on merits. It is obligatory for the Appellate Court to send for the record of the case, if it is not already