1 2025:CGHC:4862 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 674 of 2001 1 - Rajesh Kumar S/o Motiram, Aged about 29 years, R/o Village- Bhadar, P.S. Rajapur, Surguja (C.G.). 2- Dhan Sai S/o Deonath Gond, Aged about 36 years, R/o Village Budha Bagicha, P.S. Rajpur, District- Surguja (C.G.) ... Appellants versus State Of C.G. Through- Police Station- Shankargarh, District- Surguja (C.G). ... Respondent(s) For Appellants : Mr. Manoj Mishra, Advocate For State : Mr. Kalpesh Ruparel, P.L. Hon'ble Shri Justice Sachin Singh Rajput Order On Board 28.01.2025 1. This appeal is filed under Section 374 (2) of the Criminal Procedure Code, 1973 (for short Cr.P.C.) arising out of impugned judgment of conviction and order of sentence dated 26-07-2001 passed in Special Criminal Case No. 165/1995 by the Special Judge, Surguja, District- Ambikapur (C.G.), by which learned trial Court held the appellants guilty of commission of offence and sentenced as described below - Conviction U/s 3/7 Essential Commodities Act, 1955. Sentence Awarded Rigorous imprisonment for 2 years and fine of Rs. 1,500/- to each of the appellants/accused, in default of payment of fine three months R.I. to each separately and consecutively. 2. The appellants were put to trial with a charge that they have transported 5 quintals of 2 sugar and 2 quintals of rice in a Matador bearing Registration No. M.P.-27-4164 illegally towards Rajpur thereby committed violation of Section 8 of Essential Commodities Act, 1955 and thereby committed the offence under Section 3/7 Essential Commodities Act, 1955 (for short Act of 1955). 3. Total five accused persons were put to trial and they were convicted and sentenced as stated above. Two accused persons namely Rajesh Kumar, Dhan Sai filed the instant appeal and one Raghuvansh Kumar has filed separate criminal appeal bearing registration No. 704/2001. During pendency of this appeal, accused Raghuvansh Kumar passed away and his appeal is stood abated. 4. As per office report dated 27.01.2025 no appeal has been preferred before this Hon’ble Court by the co-accused Ram Prashad. 5. Case of the prosecution in brief is that accused Raghuvansh Kumar is the Lead Manager of Adim Jati Sewa Samiti, Bharatpur and was posted there on 24.08.1995. Accused Ram Prasad was the Salesman of the society. A secret information was received by the Station House Officer of Police Station -Shankargarh on 24.08.1995 that illegal transportation of sugar and rice is being done from Bharatpur Sahkari Samiti on a Matador bearing registration No. M.P.-27-4164. At about 6:30 pm, he along with the other staff and independent witnesses intercepted the matador. The appellant No. 2 Dhansai was the driver of the said matador vehicle and labour Pawansai, Nangod, Lakhan, Rajmistri, Azim Khan and Rajesh Kumar were seated in the matador. On checking, the goods were found in the matador and 5 bags of sugar and 2 bags of rice belonging to the society were found and the said sugar and rice were said to be of Appellant Rajesh Kumar. On being asked, he showed his inability to produce any bill, thereafter the matador along with the papers was seized from the appellant Dhansai and also 5 bags of sugar and 2 bags of rice belonging to the society were also seized. Stock Register of the shop of the society, distribution register, coupon register, grain register, receipt etc were also seized. After due investigation, the charge-sheet was filed before the trial Court. 3 6. The appellants and other co-accused were charged for the offence punishable under Section 3/7 Act of 1955. They denied the charges and claimed to be tried. The prosecution in order to establish its case examined 8 witnesses as well as exhibited 19 documents. 7. By the impugned judgment, the appellants and other co-accused were convicted and sentenced as stated above which led to the filing of this appeal by the appellants. 8. Learned counsel for the appellants argued that the appellants have been charged for violation of provisions of Section 8 of the Act of the 1955 and thereby committing an offence under Section 3/7 Essential Commodities Act, 1955. He submits that the violation against the appellants is said to be of Rule 6(2) of a scheme known as a Madhya Pradesh Khadya Padarth Sarvajanik Nagrik Aapurti Scheme of 1991. He further submits that the said scheme is not a scheme or an order for invoking the provisions of the Act of 1955 rather it is an executive order issued by the State Government. Since it is not an scheme framed under the provisions of Act of 1955, the appellants could not have been charged for the offence under Section 3/7 of the Act of 1955 and therefore conviction of the appellants for such offences is totally illegal and is liable to be set aside. 9. On merits he submits that from the statement of Pw-3 Azim Khan and Pw-4 Dashrath Lal Shrivastava, the case of the prosecution is demolished and it is available on record that the appellants were only the driver. In fact, the said vehicle belongs to one Pappu Agrawal and the other person namely Suresh Kumar who loaded the bags on the matador was left out by the police authorities without being prosecuted. He submits that it is available on the statement of the Pw-6 Kamalsai where it has been reflected that when Suresh Kumar went inside the Police Station and after sometime he was allowed to let go, whereas the appellants were prosecuted. He submits that the appellant No. 1 is cloth merchant and used to travel on the matador along with his cloths for sell in the market. He has nothing to do with the alleged offence. To buttress his submission he placed the reliance of the judgment of Hon’ble MP High Court which are as under: 4 2008 (2) Μ.Ρ.Η.Τ. 38 - Arvind Kumar Vs. State of Madhya Pradesh 2005 (3) Μ.Ρ.Η.Τ. 466 - Shiv Kumar Vs. State of M.P. 2000 (4) Μ.Ρ.Η.Τ. 363 - Sukhuram Vs. State of M.P. 2012 (3) Μ.Ρ.Η.Τ. 267 - Sayyad Mahmood Ahmed Vs. State of M.P. 1990 JLJ 348 - Mohan v. State of M.P. Apart from this he submits that relying upon the above judgments, this court in CRA No. 355/2001 vide its judgment dated 11.11.2016 categorically held that Scheme of 1991 is a scheme which has not been framed by exercising provisions contained in the Act of 1955, therefore, the case of the present appellants is squarely covered by this Court as well as by the Hon’ble High Court of MP which has cited above. Therefore, in sum and substance he prays that the appellants may be acquitted from all the charges. 10. Per Contra, learned Counsel for the State opposes the appeal on the ground that the evidence on the part of the prosecution amply proves the prosecution case that the appellants had stocked 5 quintals of sugar and 2 bags of rice which were illegally transported in the matador and the appellants were not able to produce any legal documents with regard to ownership the said commodities. Therefore, the conviction of the appellants is well founded and the meritorious finding recorded by the learned trial Court cannot be disturbed. 10. I have learned counsel for the parties and perused the record. 11. The first question which is germane in this case as to whether the conviction of the appellants under 3/7 of Act of 1955 sustained and as to whether the violation Rule 6(2) Scheme of 1991 would amount to conviction under section 3/7 of the Act of 1955. This issue has come before this Court in CRA 355/2001 wherein from paragraph No.7 onwards relied upon the various authoritative decisions of the Supreme Court as well as High court of MP it has been observed as under; “The Supreme Court in the case of Madhya Pradesh Ration Vikreta Sangh and others Vs. State of M.P. reported in (1981) SCC 535 has held that the "Scheme" was not made in exercise of any power conferred by the order under 5 Section 3 of E.C. Act Clause 2 (d) of the order only defiries expression of "Government Scheme" and it does not confer any power to make scheme. The definition itself postulates that the "Scheme" is one which is made in exercise of its Executive Power. The Executive Power of the State is provided in Art. 162 of the Constitution extends to the matter with respect of which the legislature of the State has power to make laws. It was the duty and burden of the prosecution to prove the nature of "Scheme", and whether the "Scheme" for violation of which appellant has been convicted is framed under The provisions of Section 3/5 of the E.C. Act. Relying upon the aforesaid judgment, the Madhya Pradesh High Court again in the case of Mohan v. State of M.P. reported in 1990 JLJ 348 in an identical set of facts held that there is no manner of doubt that the 'Scheme' is not an 'Order' u/s (3) of the Essential Commodities Act. That being so for breach of any clause of the 'Scheme', the State could not launch prosecution u/s 7 of the Act. The convictions of the appellants so also the prosecution of the applicants u/s 7 of the Act for the breach of any provision of the 'Scheme cannot be sustained and must be held illegal, null and void. The conviction for abatement u/s 8 also cannot be sustained. Further relying upon both the aforesaid two judgments, the Madhya Pradesh High Court again in the case of Sukhuram Vs. State of M.P. reported in 2000 (4) M.P.H.T. 363 had allowed the appeal of the appellant and set aside the conviction itself holding as non-sustainable. Similar view was again taken by the High Court of Madhya Pradesh in the case of Shiv Kumar Vs. State of M.P. reported in 2005 (3) M.P.H.T. 466 wherein paragraph 7 it has been held as under: "7...... First condition for prosecuting a person under Section 7 is that there should be a contravention of the control order issued by the State Government under Section 3 of the Essential Commodities Act. Any scheme framed under the executive powers by the State Government may not come within the purview of the control order and for that it would not be necessary that it should satisfy the provisions laid down under Section 3 of the Act. Therefore, in order to prosecute a person for violation of the terms and conditions of the scheme it is necessary for the prosecution to prove that the scheme is in the nature of control order and further to prove that the same has been issued under Section 3 of the Essential Commodities Act and in the absence of such an evidence, any scheme framed under executive 6 power can not fall within the purview of the control order and the person can not be prosecuted and held guilty." Again in 2008 (2) M.P.H.T. 38 in the case of Arvind Kumar Vs. State of Madhya Pradesh in an identical set of facts relying upon the previous decisions referred to in the preceding paragraphs the High Court of Madhya Pradesh allowing the Appeal has set aside the conviction.” 12. From reading to the judgment as cited by the learned counsel for the appellants, when prima facie the appellants have been able to convince this Court that the violation of Scheme of 1991 which forms the basis of conviction is not a Scheme under the provisions of Act of 1955 and the authoritative judgments cited by the counsel for the appellants covers the case of the appellants. Apart from this, the evidence also suggest that in the matador one Suresh Kumar was also present. The evidence of the witnesses clearly spells out there are other persons were seated in the matador and they have stated that the Suresh Kumar was called and when he went into the police station and thereafter after sometime he was allowed to let go. Therefore, considering the material available on record particularly that prosecution was not able to prove that the conviction of the appellants under the Scheme is a Scheme under the Act of 1955, seizure of the sugar & rice from appellant Rajesh Kumar beyond reasonable doubt, the conviction of the appellants cannot sustain and they are entitled for acquittal. 13. Accordingly, the appeal stands allowed and the impugned judgment dated 26.07.2001 is hereby set aside. The appellants are acquitted from all the charges. They are reported to be on bail. Their bail bonds shall remain in operation for next 6 months in view of the Section 481 of the BNSS, 2023. Sd/- (Sachin Singh Rajput) Judge H.Ansari HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.01.31 12:01:54 +0530