JUDGMENT

1) By way of present revision application under Sections 397 read with 401 of the Code of Criminal Procedure, 1973, the applicants have prayed for quashing and setting aside the judgment and order of conviction and sentence dated 18.02.2009 passed by the learned JMFC, Vansada, District Navsari, in Criminal Case No.96 of 2005, whereby, the trial Court has been pleased to hold the applicants guilty for the offence punishable under Sections 3 and 7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment of one year and also directed to pay fine of Rs.1,500/- each, which is confirmed by learned 2nd Additional Sessions Judge, Camp at Vansada, in Criminal Appeal No.09 of 2009 vide order dated 15.07.2013.

2) Heard Mr.H.R. Prajapati, learned counsel for the applicants – accused and Mr. Rohan Raval, ld. APP for the respondent – State.

3) Brief facts of the prosecution case are that, that kerosene license being no. 107/86 was issued in favour of applicant No.2 under the provisions of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981. On the day of inspection, Inspecting team of supply ofÏcers carried out surprise checking at the business place of applicant no. 2 on 16.4.2004 and in pursuance of the same, it was alleged that applicant no. 2 is not residing at the licensed place but residing at Buhari, Vrundavan Society, Taluka Valod, Surat since last 18 years and he had unauthorisedly transferred the same in favour of applicant No.1 and the applicant no.1 was carrying the business since last 10-12 years. Certain irregularities have been been committed by the applicant while carrying on his business. Pursuant to the same, F.I.R. being C.R.No. 23/2004 came to be registered on 29.6.2004 with Vansada Police Station for the offences punishable under section 3 & 7 of Essential Commodities Act, 1955.

4) Learned counsel for the applicant has submitted that the lower appellate Court has committed an error in remanding the matter to the trial Court without first setting aside the judgment and order passed by the trial Court. It is contended that once the lower appellate Court recorded a finding that the prosecution had failed to lead necessary evidence before the trial Court, it committed a serious error in permitting the prosecution to fill up lacunae by way of remand. It is further submitted that the lower appellate Court failed to appreciate that no application was made by the prosecution seeking permission to lead additional evidence. The learned Court below has wrongly exercised suo motu powers by directing the trial Court to permit the prosecution to produce additional material and to decide the case thereafter on the basis of such documents. It is also submitted that even assuming the prosecution case that there was violation of Section 3 of the Essential Commodities Act, no Control Order was produced on record, whereas such Control Order is a vital piece of evidence. In the absence of proof of violation of Section 3 of the Act, no offence under Section 7 of the Act can be said to be made out. Consequently, in absence of such foundational evidence, the question of invoking any presumption against the accused does not arise. It is therefore contended that the remand order has caused serious prejudice to the applicant, as it allows the prosecution to fill up lacunae in its case. Hence, it is submitted that the lower appellate Court ought to have acquitted the accused instead of remanding the matter. Hence, it is prayed that the present application be allowed.

5) Learned APP for the respondent–State has opposed the present revision application and submitted that the trial Court, after appreciating the evidence on record, had convicted the accused for the offence under the Essential Commodities Act. It is further submitted that the lower appellate Court has merely remanded the matter to the trial Court to enable proper consideration of the evidence, and no p