Conviction under Essential Commodities Act is unsustainable without evidence proving enforceability of the breached Scheme.

1. This appeal has been preferred against the judgment of conviction and order of sentence dated 25.11.2000 passed by the Special Judge Ambikapur, District Surguja, Chhattisgarh in Special Criminal Case No. 47 of 1997, whereby and whereunder the learned Special Judge convicted the appellant under S.3/7 (i)(a)(ii) of the Essential Commodities Act , 1955 (for short 'the Act') and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.500/-, in default of payment of fine, to further undergo SI for four months.

2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

3. The case of the prosecution, in brief, is that appellant - Sanjeet Kumar Gupta @ Munna was a Salesman in Government Fair Price Shop No. 1 at Village Bardar. It was his duty to receive the food - grains and distribute the same in accordance with the Madhya Pradesh Sarvajanik Nagrik Purti Vitran Scheme, 1991 (for short 'the Scheme, 1991'). On 29.3.1997, appellant - Sanjeet Kumar Gupta @ Munna sold four bags of wheat weighing 3.84 quintals to one Vijay Gupta from the stock of the fair price shop. When the sold wheat was being transported, a raid took place and the wheat was seized by the officer of Police Station Balrampur. First Information Report was registered by Police Station Balrampur under S.3 read with S.7(i)(a)(ii) of the Act. During investigation, it was also found that the appellant and his father Triloki Prasad Gupta had opened the stitching of the gunny bags containing wheat to reduce the quantity of wheat. Police station Balrampur sent a report to the Sub-Divisional Magistrate, Balrampur and by the order of SDM, Balrampur, the Assistant Food Officer, Ramanujganj, conducted an enquiry in which it was reported that the provisions of Serial No. 6(3)(4)(5) of the Scheme, 1991 were breached. After completion of the investigation, the appellant and his father Triloki Prasad Gupta were charge - sheeted under S.3 read with S.7 of the Act and S.209/34 of the Indian Penal Code.

4. Statements of the appellant and his father were recorded under S.313 of the Code of Criminal Procedure (for short 'Code') in which they denied the charges levelled against them. The trial Court after hearing learned counsel for the respective parties and considering the material available on record, by the impugned judgment, the trial Court acquitted Triloki Prasad Gupta, however, holding the appellant guilty, convicted and sentenced him as mentioned above.

5. The grounds of the appeal are that the impugned judgment is contrary to the facts, law and circumstances of the case. Learned trial Court did not consider the fact that the prosecution had utterly failed to prove the guilt of the appellant beyond reasonable doubt. The trial Court has convicted the appellant only on the basis of his statement under S.313 of the Code and hence it is urged that the conviction is unsustainable and, therefore, the appeal may be allowed by acquitting the appellant of the charge.

6. During the course of arguments, learned counsel for the appellant argued that the conviction imposed upon the appellant cannot be sustained on the ground that the act of the appellant is not covered under S.3/7 of the Act. if any action was required to be taken, that should have been taken against the licensee of the fair price shop as the appellant was simply a salesman engaged by the licensee for performing the duties in accordance with the instructions given by the licensee. The licensee of the shop has not been