Ishtiaq and Others vs State of U.P.

V.N. Misra, J.—This is an application in revision by Ishtiaq, Chhotey Khan and Nasaruddin against the judgment and order dated 1-9-1981 of Sri Arjun Dev, Sessions Judge, Rampur, in Criminal Appeal No. 163 of 1981, by means of which he dismissed the appeal and sentenced the applicants to three months'' rigorous imprisonment and a fine of rupees one thousand each u/s 3 read with Section 7 of the Essential Commodities Act.

The prosecution case, briefly stated, was that on 6-12-1974 at about 9.30 p. m. near the Gumti, which is close to Rampur Moradabad border V.P. Singh, the then Station Officer, Police Station Civil Lines, Rampur, along with police force, marketing Inspector and public witnesses intercepted the applicants; while they were smuggling 20 bags of wheat from Rampur to Moradabad. This wheat was seized and the applicants were prosecuted resulting in their conviction as aforesaid.

PW 1 V. P. Singh, Vigilance Inspector stated that the applicants were caught while carrying these bags of wheat at a place which was hundred paces from the raliway crossing. It was, however, not known what kind of railway crossing this was and whether after this railway crossing there was district Moradabad and there was no evidence to say how far was the border from that place.

It is true that this wheat was being carried at 9.30 P.M. in the night, but for this reason alone it could not be presumed that it was being smuggled outside the district. The applicants could have changed their mind at any time before they crossed the border and could have returned with this wheat. Merely because they were found near the railway crossing, it cannot be said that this wheat was being moved to another district.

No presumption could also be drawn u/s 10(2) of the Essential Commodities Act because this Sub-section was added to Essential Commodities Act by means of Act No. 18 of 1975. There was, therefore, no Section 10(2) at the time when this occurrence took place and no presumption could be drawn that this wheat was being smuggled across the border.

Since it was not proved that this wheat was being carried across the border and was being smuggled, therefore, the applicants could not be convicted.

The revision is, therefore, allowed. The conviction of the applicants and the sentence imposed on them are hereby set aside. They are on bail and need not surrender. Their bail bonds are hereby cancelled and sureties discharged. Fine, if paid, shall be refunded to the applicants.