The prosecution must demonstrate that an item is an essential commodity under the Essential Commodities Act, and failure to prove this leads to acquittal.

JUDGMENT :

FARJAND ALI, J.

1. By way of the present criminal appeal, the appellant has challenged the judgment of conviction and order of sentence dated 31.10.1998 passed by the Special Judge, Essential Commodities Act Cases, Jodhpur in Criminal Case No.12/1993 whereby he has been convicted under Section 3/7 of the Essential Commodities Act and sentenced to three months rigorous imprisonment with a fine of Rs.1,000/- and in default to further undergo three months RI.

2. A criminal prosecution was initiated against the appellant at Police Station Mahamandir on allegations of contravention of the Essential Commodities Act, alleging that the appellant was found in unauthorized possession of 38 gas regulators without a valid licence, thereby attracting offences punishable under Sections 3/7 of the said Act. The case was registered by the Station House Officer and taken to trial before the learned Special Judge, EC Act Cases, Jodhpur.

2.1. It is pertinent to note that on identical allegations arising out of the same transaction and founded upon the very same set of evidence, a parallel case was registered against one Yatendra Kumar. Both the appellant and the said co-accused were jointly tried. During the alleged recovery, 38 regulators were stated to have been seized from the possession of the appellant, whereas only 4 regulators were allegedly recovered from Yatendra Kumar.

2.2. Upon culmination of the trial, the learned Special Judge, on an appreciation of identical evidence, acquitted the co-accused Yatendra Kumar of all charges. However, in a glaringly incongruous outcome, the appellant was convicted for the offence under Sections 3/7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for three months along with a fine of ₹1,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for three months.

2.3. Aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 31.10.1998 passed by the learned Special Judge, EC Act Cases, Jodhpur, the appellant has preferred the present revision petition before this Court under Section 397 Cr.P.C., assailing the legality, propriety, and sustainability of the impugned judgment.

3. Learned counsel for the appellant submitted that the prosecution has failed to establish that the alleged recovered articles were gas regulators or that they were in working condition, as no testing or technical verification was ever conducted. In the absence of such proof, no offence under Sections 3/7 of the Essential Commodities Act is made out. The recovery is further vitiated by non-compliance with Section 100 Cr.P.C., absence of independent witnesses, and material contradictions in the evidence of police officials, all independent witnesses having disowned the prosecution case. The co-accused having been acquitted on identical evidence, the appellant is entitled to parity. Moreover, the alleged recovery by an incompetent authority and from an open public place renders the prosecution version wholly unreliable. Even otherwise, assuming the offence, the sentence imposed is grossly disproportionate, and the appellant, being a first-time offender with clean antecedents, deserves acquittal or, in the alternative, the benefit of probation. It is, therefore, prayed that the appeal be allowed and the impugned judgment be set aside.

4. The learned Addl. Government Advocate contends that the recovery of gas regulators from the conscious possession of the appellant stands conclusively established on the basis of consistent and credible testimony of official w