JUDGEMENT 1. As common questions of law are involved in Criminal Revisions Nos. 1869 of 1973, 1487 of 1972 and Criminal Reference No. 426 of 1973, they have been ordered to be connected with Criminal Revision No. 1708 of 1973. I shall dispose them of by this common judgement. Criminal Revision No. 1869 of 1973 : 2. Applicant Man Mohan is the General Manager and applicant G.K. Mathur is the Assistant Secretary of Messrs. Daurala Sugar Works, Daurala. They are being prosecuted for contravention of clause IV(1) of the Government of India, Ministry of Food and Agriculture. Community Development and Co-operation (Department of Food) New Delhi, Order No. G. S R. 645/Ess. Com/Sugar dated 14th April 1970, known as the Sugar Packing and Marking Order 1970 punishable under Section 3/7 of the Essential Commodities Act. 1955. 3. The case for the prosecution is that R.D. Sethi, Inspector of Directorate of Sugar and Vanaspati, Department of Food Government of India collected 12 samples of sugar from M/s. Daurala Sugar Works on 14th June, 1971, from the factory godown relating to the stocks of 1970-71 production. Two of these samples were tested by the National Sugar Institute Kanpur on 7th January, 1971 out of which one sample was found inferior in grade than that which was marked on it by the factory. The marking was C-30 but the grade was C-29. A show cause notice was served on the factory. The explanation of the factory was not found to be satisfactory, hence a complaint was filed under Section 3/7 of the Essential Commodities Act. K.P. Agarwal Technical Advisor National Sugar Institute Kanpur and R.D. Sethi, Inspector Directorate of Sugar and Vanaspati were examined in support of the complainants case, K.P. Agarwal proved the report prepared by K. Joshi, who had analysed the sugar in question. The Magistrate found that a prima facie case had been made out against the accused as such he framed a charge against them which is the subject-matter of the dispute. A revision was filed before the Sessions Judge which was dismissed on 23rd August, 1973, hence the present revision. Criminal Revision No. 1487 of 1972 : 4. Applicant B.L. Kapoor is the General Manager and D.P. Gupta is the Works Secretary of Mawana Sugar Works. A revision was filed before the Sessions Judge which was dismissed on 23rd August, 1973, hence the present revision. Criminal Revision No. 1487 of 1972 : 4. Applicant B.L. Kapoor is the General Manager and D.P. Gupta is the Works Secretary of Mawana Sugar Works. On 28th November, 1970, R.D. Sethi Inspector aforesaid took ten samples of sugar from the factory godown of the above mentioned concern from the 1969-70/1970-71 seasons production. One of these samples was sent for testing to the National Sugar Institute, Kanpur, on 29-1-1971 and the analysis was conducted on 25-2-1971. The sample was found lower in grade than that marked by the factory. In response to a show cause notice an explanation was given by the factory which was not found to be satisfactory. Hence the applicants were prosecuted under Section 3/7 of the Essential Commodities Act. The report of the National Sugar Institute Kanpur disclosed that the sample was marked C-29 but the grade was C-28. The prosecution examined R.D. Sethi, Inspector and A.K. Gupta of the National Sugar Institute Kanpur, in support of the allegations in the complaint. A.K. Gupta proved the report of analysis prepared by K. Joshi. The Magistrate being satisfied that a prima facie case had been made out framed a charge against the accused. A revision was filed before the Sessions Judge Meerut which was dismissed on 22nd July, 1972. Hence this revision. Criminal Reference No. 426 of 1973 : 5. In this case a complaint under Section 3/7 of the Essential Commodities Act was lodged against S.R. Agarwal, General Manager and V.K. Jindal, Commercial Manager of M/s, Dhampur Sugar Mills. T.R. Malhotra, Inspector (Sugar), Directorate of Sugar and Vanaspati collected 12 samples of sugar from the stocks of the factory godown relating to 1970-71 season production on 5th June 1971. Two of these samples were sent for analysis to the National Sugar Institute, Kanpur, out of which as per report one of the samples was found lower in grade than that marked by the factory. The marking on the bag was B-30, while the grade according to the analysis was B-29. T.R. Malhotra Inspector and K.P. Agarwal Technical Officer, National Sugar Institute Kanpur were produced to support the prosecution case. The latter has proved the report of analysis of the samples conducted by Kirat Joshi. After evidence of the prosecution was recorded under Section 252. The marking on the bag was B-30, while the grade according to the analysis was B-29. T.R. Malhotra Inspector and K.P. Agarwal Technical Officer, National Sugar Institute Kanpur were produced to support the prosecution case. The latter has proved the report of analysis of the samples conducted by Kirat Joshi. After evidence of the prosecution was recorded under Section 252. Criminal Procedure Code the accused were examined under Section 253, Criminal Procedure Code. S.R. Agarwal pleaded that he was the Chief Executive Officer and not the producer of the concern. V.K. Jindal pleaded that he was the Commercial Manager and not the producer. It was contended on behalf of these two applicants that no prima facie case had been made out against them. The Sub-Divisional Magistrate, however, was of the opinion that a prima facie case had been made out and as such he framed a charge against these applicants for contravention of the order referred to above punishable under Section 3/7 of the Essential Commodities Act. Dissatisfied therefrom a revision was filed before the Sessions Judge Bijnor who has made reference to this Court for quashing the aforesaid order of the Magistrate dated 12th April 1973. Criminal Revision No. 1708 of 1973 : 6. Seth Banarsi Das applicant is the occupier of Jaswant Sugar Mills Ltd., Meerut. Roshan Lal, applicant is the Manager and Harbans Lal Gupta applicant is the Sales Manager of the Mills. On 27th November, 1970, R.D. Sethi, Inspector of Directorate of Sugar and Vanaspati collected nine samples of sugar, out of which two were forwarded to the National Sugar Institute. Kanpur, for analysis. One of these samples was found higher in grade. It was marked D-29 but the analysis report disclosed that its grade was E-29. The other sample which is a gravamen of the charge against the applicants was marked E-29 but was graded D-29. Thus according to the report, the size of the crystal of the first sample was larger in size than what was marked thereon; while the size of the crystal of the second sample was smaller that what was marked upon the bag. Thereupon a complaint was filed on 22nd December, 1971. R.D. Sethi, Inspector and J.S. Mehta. Senior Technical Officer, National Sugar Institute Kanpur, were examined. Thereupon a complaint was filed on 22nd December, 1971. R.D. Sethi, Inspector and J.S. Mehta. Senior Technical Officer, National Sugar Institute Kanpur, were examined. The Magistrate found that a prima facie case had been made out against the accused and framed a charge against them for an offence punishable under Section 7 of the Essential Commodities Act. A revision was filed before the Sessions Judge, Meerut, which was dismissed on 1-8-1973. Hence this revision. 7. Learned Counsel for the applicants has made a number of submissions, some of which are practically common to all the cases, which I shall deal hereafter. On the basis of these submissions he has urged that no prima facie case had been made out against the applicants and the courts below have erred in law in framing a charge against the accused-applicants in the above cases. Learned Counsel for the applicants has referred me to Section 253 of the Criminal Procedure Code, 1898, which runs thus : "253 Discharge of accused. - (1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him." 8. Learned Counsel for the applicants has submitted that even if the evidence of the prosecution is accepted no case has been made out to warrant a conviction of the applicants. He has placed reliance on a decision of the Supreme Court reported in Century Spinning and Manufacturing Company Ltd. v. The State of Maharashtra, AIR 1972 SC 545 : (1972 Cri LJ 329). In that case it was held as follows :- "It cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. ...................... ..... If on the existing material there is no ground for presuming them to be guilty then there can hardly be any points in framing charges and going through the formality of a trial and then acquitting them. Such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice." The position that evolves from an enunciation of the above observation of the Supreme Court is that it is the duty of the court framing a charge to consider all the material on the record and if on a consideration thereof it is of the opinion that the evidence is such which, if unrebutted, would warrant a conviction of the accused, the Magistrate should frame a charge but if he finds that no case had been made out against the accused on the unrebutted evidence it is his duty to discharge the accused. Bearing this principle in mind we shall have to consider whether the evidence led by the prosecution satisfies that test. 9. In exercise of the powers conferred under Section 3 of the Essential Commodities Act 1955, the Central Government passed Order No. G.S R. 912/Ess. Comm/Sugar on 10th June, 1956. The relevant portion of this order, with which we are concerned in the present case, is Section 2(b) which lays down :- "(p) Producer means a person carry in on the business of manufacturing sugar." Section 4 of this order places restriction on the sale etc" of sugar by producers. It states that : "....... no producer shall sell or agree to sell or otherwise dispose of ………. Sugar from the bonded godown of the factory in which it is produced, except under and in accordance with a direction issued in writing by the Central Government." Section 5 of this order confers powers on the Central Government or the Chief Director to issue directions to the producers and dealers from time to time by general or special order regarding the production, maintenance of stocks, storage sale, grading, packing, marking, weighment, disposal, delivery and distribution of sugar as he may deem it. Under Clause 5 of the Sugar Control Order 1966 abovementioned the Central Government has issued directions vide Ministry of Food and Agriculture, Community Development and Co-operation (Department of Food) Order No. G. S. R. 645/Ess. Com/Sugar dated 14th April, 1970, regarding the packing and marking of sugar bags by producer of sugar. 10. Clause 4(1) of this order requires : "Every producer shall at the time of packing mark on the bag in which the sugar is packed, its quality in terms of Indian Sugar Standards in force at that time and shall also ensure that the quality of sugar contained in the bag corresponds to the quality of sugar marked thereon until it is sold and delivered by him." 11. The first contention of the learned Counsel for the applicants is that the applicants are not covered within the definition of the word 'producer' as embodied in the Order No. G. S. R. 912 dated 10th June, 1966, As is clear from the definition, the term 'producer' refers to a person carrying on the business of manufacturing sugar. In each of the cases before me the person carrying on the business of manufacturing sugar is the Company. As such we shall have to refer to Section 10 of the Essential Commodities Act which relates to offences by Companies. Section 10 of the Essential Commodities Act runs as follows :- "10. Offences by companies :- (1) If the person contravening an order made under Section 3 is a company, every person who at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this Sub-Section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in Sub-Section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation - For the purpose of this section :- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." From a careful perusal of Section 10 of the Essential Commodities Act quoted above it is apparent that it is the Company which is primarily responsible for any offence which may have been committed as a result of the contravention of the order issued in respect of essential commodities which are covered by the Act. Company, as the explanation shows means any body corporate and includes a firm or other association of individuals. Every person who at the time the contravention was committed was incharge of and responsible to the company for the conduct of the business of the company can also be held liable for contravention along with the company. Thus in order to fasten liability on a person other than the company, it is essential for the company to show that such a person was incharge of and was responsible to the company for the conduct of its business. Both these ingredients must essentially be proved. While considering this question it was held by a Single Judge of this Court in a case reported in AIR 1965 All 525 : ((1965) 2 Cri LJ 581), D.K. Jain v. State of U.P. that "In order to hold an employee vicariously liable for the offence committed by the company it must be established that there was some nexus with the crime either because of his connivance with it or due to criminal negligence which has resulted in the commission of the crime. To make the applicant liable, therefore, for the offence committed by the Company or its Salesman who was physically present on the scene, it must be proved that the offence was committed with his connivance." In this case the Commercial Manager of M/s. Edward Keventors Private Ltd. was prosecuted under Section 16 of the Prevention of Food Adulteration Act, whose provisions are similar with those which I am considering. The Commercial Manager had stated that he had no connection with the production side of the company's business. There was no evidence to suggest that the applicant in his capacity as the Commercial Manager of the company had anything to do with the production or that he was responsible for organising its sales on behalf of the company. As such the revision filed in the High Court was allowed and the applicant was acquitted. 12. I would go a step further in my interpretation of Section 10 of the Essential Commodities Act, beyond what brother Tripathi has done. In my opinion, in order to make an employee vicariously responsible it must be shown that he was incharge of the conduct of business of the company and further that he was responsible to the company for the conduct of such business. For instance if a proprietor of the company appoints a Managing Agent to conduct the business of the Company the Managing Agent would be incharge of the business of the company and would also be responsible to the company for the conduct of its business. An individual employee of the concern cannot be held responsible for the conduct of its business of the company under Section 10(1) of the Act, for he has certain specified duties to perform, which are assigned to him. He cannot be held responsible to the company for the conduct of the business of the company. He is merely given charge of a particular department and is not responsible to the company for the over all conduct of the business of the company. In my opinion, therefore, individual liability cannot be fastened on an employee of the company under S.10(1) of the Essential Commodities Act. He is merely given charge of a particular department and is not responsible to the company for the over all conduct of the business of the company. In my opinion, therefore, individual liability cannot be fastened on an employee of the company under S.10(1) of the Essential Commodities Act. In 1967 All WR (HC) 17, M.R. Shervani v. State, Hon'ble C.B. Capoor, J., held that "Under Sub-Section (1) of Section 10 guilt has been fastened on every person who, at the time of the contravention was incharge of and was responsible to the company for the conduct of the business of the Company. It is significant that the conjunction used is (and) and not (or) that is the persons deemed to be guilty of the contravention must be incharge of the Company for the conduct of the business of the Company and must be responsible to the Company for the conduct of the business of the Company. It is only on the co-existence of both the conditions that liability of quilt is entailed." It is for this reason that Sub-Section (2) of Section 10 of the Essential Commodities Act has been enacted which fastens the liability for an offence upon any Director Partner Manager, Secretary or other officer of the Company provided it is proved that the offence committed was with his consent or connivance or is attributable to any neglect on his part. Therefore, in order to hold that the Director, Partner Manager, Secretary or other officer of the company has committed an offence, the ingredient of consent of connivance or neglect on his part must be established. Unless those ingredients are proved such officers of the company cannot be held liable vicariously along with the company. 13. I have been taken through the evidence in all these four cases before me. It is true that in the complaint which was filed in Criminal Revision No. 1487 of 1972, an allegation was made against B.L. Kapoor and D.P. Gupta that they were incharge of and were responsible to the company for the conduct of the business of the company. But in the statements of the witness that have been recorded in that case namely A.K. Gupta and R.D. Sethi, there is not an iota of evidence to indicate that these two accused were incharge of and were responsible to the company for the conduct of its business. But in the statements of the witness that have been recorded in that case namely A.K. Gupta and R.D. Sethi, there is not an iota of evidence to indicate that these two accused were incharge of and were responsible to the company for the conduct of its business. It has to be borne in mind that the present revisions have been filed against orders framing a charge against each of the accused-applicants. It was the duty of the Magistrate to consider whether there was evidence on the record in support of this allegation in the complaint. There can be no doubt that the mere allegation in the complaint is not evidence in the case. It is the statement on oath given by the witnesses which can be treated as evidence under Section 253, Criminal Procedure Code. In the absence of any such evidence it cannot be said that B.L. Kapoor and D.P. Gupta were incharge of and were responsible to the company for the conduct of its business. Merely describing B.L. Kapoor as the General Manager and D.P. Gupta and the Works Secretary of the factory is in my opinion not sufficient to prove that they were in charge of and were responsible to the company for the conduct of its business. 14. The same short coming is to be found in the other connected criminal revision. In Criminal Revision No. 1708 of 1973 Seth Banarsi Dass is described as the occupier, Roshan Lal is described as the Manager and Harbans Lal Gupta is described as the Sales Manager of Jaswant Sugar Mills. There is no evidence on the record at all to indicate that they were incharge of and were responsible to the company for the conduct of the business Merely because a sample was taken in the presence of Harbans Lal Gupta as deposed to by R.D. Sethi, or the receipt evidencing the taking of sample was signed by him, cannot necessarily lead to the conclusion that he was incharge of and responsible to the company for the conduct of its business. Even a reply to show cause notice would not be sufficient to fasten a liability on the person concerned under Section 10(1) of the Essential Commodities Act. 15. In Criminal Revision No. 1869 of 1972. K.P. Agarwal and R.D. Sethi have been produced in evidence. I have perused their statements. Even a reply to show cause notice would not be sufficient to fasten a liability on the person concerned under Section 10(1) of the Essential Commodities Act. 15. In Criminal Revision No. 1869 of 1972. K.P. Agarwal and R.D. Sethi have been produced in evidence. I have perused their statements. The mere describing of Man Mohan as the General Manager and G.K. Mathur as the Assistant Secreary of Daurala Sugar Works is, in my opinion not sufficient to fasten guilt upon them. There is nothing in the statements of these witnesses to indicate that these applicants were incharge of and were responsible to the company for the conduct of their business. 16. Similar is the case in Criminal Reference No. 426 of 1973. In that case K.P. Agarwal and T.R. Malhotra have been produced as witnesses. Besides describing S.R. Agarwal as the General Manager and V.K. Jindal as Commercial Manager, there is nothing in the statements of these witnesses to indicate that these persons were incharge of and responsible to the company for the conduct of its business. 17. Learned Counsel for the State has placed reliance upon a Single Judge decision of this Court reported in 1965 All LJ 1026, Bala Prasad v. State and on its basis he has submitted that it cannot be said that the framing of the charge against the applicants in each of these cases is bad in law and should be struck down. I have carefully examined that decision. That was a case of contravention of the terms of the licence granted under the U.P. Kerosene Control Order 1962. Learned Counsel has placed reliance upon the following passage in the aforesaid judgement. "It is clear from Section 10 of the Essential Commodities Act that the word 'company' includes a partnership firm and if there has been any contravention of the U.P. Kerosene Control Order, 1962, the firm itself would be deemed to be guilty and shall be liable to be proceeded against and punished. There can be no manner of doubt that the firm is only a collective name for its partners. The result would be that if there has been any breach of the Order of 1962, all the partners shall be deemed to be guilty of its contravention and shall be liable to be proceeded against. There can be no manner of doubt that the firm is only a collective name for its partners. The result would be that if there has been any breach of the Order of 1962, all the partners shall be deemed to be guilty of its contravention and shall be liable to be proceeded against. In other words, to start with mens rea would be attributable to them in terms of the provisions of Section 10(1) of the Act and they would be prima facie liable to be charged for having committed the offence, whether or not they had any guilty mind in the matter. Thus there will be a presumption of their guilt at the initial stage." It is significant that in the above case even though a presumption of guilt at the initial stage was drawn by the learned Judge, the essential ingredients of Section 10(1) of the Essential Commodities Act were not considered by him. As I have mentioned above when the person committing the contravention is a company it must be proved that at the time when the contravention was committed such person was incharge of and was responsible to the company for the conduct of the business of the company. A careful perusal of Sec. 10(1) of the Essential Commodities Act would show that such a person as well as the company are not to be deemed guilty of the contravention and are liable to be proceeded against. The learned Judge took the view that because the firm is only a collective name for its partners, therefore, the partners are all presumed to be guilty at the initial stage. The phraseology of Section 10(1) of the Essential Commodities Act has not been considered in that decision. There is nothing in that decision either to controvert or to support the view of law which I have taken above, as to the interpretation of Section 10(1) of the Essential Commodities Act. 18. In my opinion, therefore, in each of these cases referred to above, there is no evidence on the record to hold the applicants guilty under Section 10(1) of the Essential Commodities Act. 19. 18. In my opinion, therefore, in each of these cases referred to above, there is no evidence on the record to hold the applicants guilty under Section 10(1) of the Essential Commodities Act. 19. So far as Section 10(2) of the Essential Commodities Act is concerned, it may be mentioned even at the cost of repetition, that there is no evidence at all in each of these cases to prove that the offence for which the applicants have been charged was committed with their consent connivance or was attributable to any neglect on their part. The charges which have been framed against the accused applicants are consistently to take effect that they violated the provisions of Section 4(1) of the Sugar Packing and Marking Order 1972 by wrong marking of the grade of sugar. In Criminal Revision No. 1487 of 1972 the report is that the bag was marked C-29 but the grade was C-28. In Criminal Revision No. 1689 of 1973 the marking was of C-30 but the grade found on analysis was C-29. In Criminal Reference No. 426 of 1973 the marking on the bag was B-29. Lastly in Criminal Revision No. 1708 of 1973 the marking on the bag with regard to the size of the crystal was E-29, while the grade was D-29. There is no evidence on the record to indicate that incorrect marking was done on the bag in question with the consent or connivance of the applicants or that it was due to any neglect on the part of the accused-applicants of each case. As such, it would be absurd to hold that the applicants, even in the absence of this evidence, can be convicted under Section 10(2) of the Essential Commodities Act. 20. Learned Counsel for the State has submitted that under Order G. S. R. 645/Ecc. Comm/Sugar dated 14th April, 1970, it was incumbent upon every producer to ensure that the quality of sugar contained in the bag corresponds to the quality of the sugar marked thereon until it is sold and delivered by him. Section 4 of the above order casts a duty upon every producer at the time of packing to mark the bag with regard to the quality of the sugar according to the Indian Sugar standard. Section 4 of the above order casts a duty upon every producer at the time of packing to mark the bag with regard to the quality of the sugar according to the Indian Sugar standard. He is also duty bound to see that the quality thus marked by him corresponds to the quality of the sugar until it is sold and delivered by him. On a careful perusal of Clause 4 of the aforesaid order, I am of the opinion that the producer is bound in law at the time of packing of sugar to mark the bag with the correct mark to indicate the quality of the sugar. He is also bound to ensure that at the time when the sugar is sold and delivered by him to the purchaser the quality marked on the bag corresponds to the quality contained in the bag. It is noteworthy that the bags in question in the cases before me were checked by the Inspector when they were stored in the bonded warehouse. Under Clause 4 of G. S. R. 917 dated 10th June, 1966, no purchaser can sell or otherwise dispose of sugar or deliver sugar or remove any sugar from the bonded godown of the factory in which it is produced except under and in accordance with the directions issued in writing by the Central Government or the Chief Director. Such directions are issued from time to time. Without such permission sale of sugar cannot be effected. In Criminal Revision No. 1869 of 1973, the stock of sugar related to 1970-71 crushing season. In Criminal Revision No. 1487 of 1972 the stock of sugar related to the crushing season of 1969-70 and 1970-71, whereas in Criminal Reference No. 426 of 1973 the sugar stock related to the crushing season 1970-71. These stocks of sugar had been lying in godown for months, obviously because no direction had been issued permitting their sale. The Inspector had checked these stocks prior to actual sale of these bags. Clause 4 of G. S. R. 645 dated 14th April, 1970, cannot be inter preted to mean that the producer must consistently go on checking the marking and the quality of sugar contained in the bag until such time as ii is sold and delivered. The Inspector had checked these stocks prior to actual sale of these bags. Clause 4 of G. S. R. 645 dated 14th April, 1970, cannot be inter preted to mean that the producer must consistently go on checking the marking and the quality of sugar contained in the bag until such time as ii is sold and delivered. The liability which is cast under this clause is that at the time of sale and delivery the marking on the bags must correspond to the quality of the sugar contained therein. It is not the case of the prosecution that these bags of sugar of which samples were taken in each of these cases had been sold and delivered to the purchaser. If at the time of sale and delivery the Inspector had made the checking and found the marking incorrect in that event Clause 4 of the Order dated 14th April, 1970, would have come into operation. But that is not the case of the prosecution nor is there any evidence on the record to suggest any such case. Counsel for the State has not been able to satisfy me that a consistent and recurring duty is cast upon the producer to check the contents of the sugar bags at every stage so long as it remains in his custody. I am of the opinion that such a checking is neither required by law nor is it at all possible. The restriction of sale of sugar has been placed by the Government itself and it would be for the Government to pass suitable and speedy orders for its disposal so that it may not give an opportunity to the accused to plead in defence that deterioration in colour was due to lapse of time and atmospheric change. I am thus not satisfied that the applicants in these cases can be held guilty for the contravention of Clause 4(1) of G. S. R. 645 dated 14th April, 1970. 21. An argument has also been addressed by the learned Counsel for the applicants that the colour of sugar deteriorates with the passage of time. In this connection he has placed reliance upon. 21. An argument has also been addressed by the learned Counsel for the applicants that the colour of sugar deteriorates with the passage of time. In this connection he has placed reliance upon. "The Proceedings of the International Society of Sugarcane Technologists 13th Congress, Taiwan, March 2-17, 1968 edited by Kanchin Liu, published by The Executive Committee of the I. S. S. C. T." On page 385 of this volume concerning the Studies on the Colour Problem of Planation White Sugars' it has been observed thus : "In India about 3-5 million tons of planation white sugar from sugarcane are annually produced in about 40 carboration and 160 sulphitation factories, during the period of October-April. The sugar is stored in godowns where the temperature varies from 20°C in winter to 40°C in summer. Under these temperature conditions of Storage, the planation sugars deteriorate in the sense that some colouring matter is produced in the sugar crystals resulting in the loss in their colour grade. Sugars which have been graded ISS 30 become, in general, on, storage for 6-7 months ISS 29, a lower colour grade ……" I have already mentioned above that in each of the three cases namely in Criminal Revisions No. 1869 of 1973, Crl. Revision No. 1487 of 1972 and Criminal Reference No. 426 of 1973 the colour of sugar marked on the bag was just one grade less as found on analysis. 22. Learned Counsel for the applicants has submitted that this discolouration of the sugar was a natural consequence of atmospheric conditions and storage conditions. He has also submitted that several months had passed before the actual test was conducted of the samples which were taken in Criminal Revisions Nos. 1869 of 1973, 1487 of 1972 and Reference No. 426 of 1973. He has further pointed out that in Criminal Reference No. 426 of 1973 it has been admitted by K.P. Agarwal P.W. 2 that the colour of sugar changes due to humidity I would not like to express any opinion on this question, because it entails investigation into several questions of fact. The effect of humidity storage conditions, long passage of time are all matters which cannot be finally decided at this stage. The effect of humidity storage conditions, long passage of time are all matters which cannot be finally decided at this stage. If, as the aforesaid text says, sugar undergoes natural decolouration with the influx of time and due to improper packing and storage conditions it would be for the Government to take such steps as it may deem necessary to minimise the impact of these conditions by framing necessary rules for its packing, storage, checking and sale. For example, it may give directions for the speedy disposal and sale of sugar so that such time may not lapse between the marking of the bag and the actual sale thereof and the quality of the sugar contained in the bag may not be affected. But with that I am not concerned at present. Suffice it to say that this is not an appropriate stage where I can consider specifically the question of discolouration. I therefore, leave this matter open without according any specific finding thereon. 23. Learned Counsel for the applicants has also submitted that the report of K. Joshi has not been proved according to law. Even though in the calendar of witnesses K. Joshi was mentioned as a witness and a request was also made to the court to summon him, yet no serious effort was made by the prosecution to ensure, his attendance. Counsel for the State, on the other hand has argued that in a warrant case it was the duty of the Magistrate to have summoned the witnesses and K. Joshi could not be produced on the date fixed as he had left service and had joined another commercial concern. I have been taken through the evidence which has been led in this case with regard to the proof of the report of K. Joshi on the samples of sugar taken in each case. Even if I accept that the formal witnesses who have been led in each case were conversant with the hand writing of K. Joshi, and the reports in question in these cases have been formally proved, yet that would not carry the case for the prosecution very far. At the most it would only mean that the grade of marking was only a grade less in colour in three of the cases before me and the size of the crystal was a grade smaller in Criminal Revision No. 1708 of 1973. At the most it would only mean that the grade of marking was only a grade less in colour in three of the cases before me and the size of the crystal was a grade smaller in Criminal Revision No. 1708 of 1973. Be that as it may, in view of the question of law which I have decided above with regard to the applicability of Section 10(1)(2) of the Essential Commodities Act, it will not be necessary for me to pursue this matter further. 24. Learned Counsel for the State has submitted that the case should be remanded to the court below so that further evidence may be led by the prosecution in proof of its case. The object of a remand order should not be permit the prosecution to fill up the gaps and lacunae in its evidence. Here, in all these four cases, we are concerned with the correctness or otherwise of the order of the Magistrate framing a charge against the accused. According to the principle of law laid down in the Supreme Court case even if the evidence produced by the prosecution is left unrebutted yet it would not prove the ingredients of the offence as contemplated by Section 10(1) and (2) of the Essential Commodities Act. In the total absence of such evidence it was the duty of the Magistrate to have discharged the accused. I am not prepared to remand the case on the speculative ground that further evidence would be forthcoming to prove the ingredients of the offence under Section 10(1) and 10(2) of the Essential Commodities Act. I have carefully perused the calendar of the witnesses which have been submitted in each of these cases and I find that apart from K. Joshi the Analyst, the rest of the witnesses mentioned therein are concerned only with the transit of the samples taken for analysis. No witness has been mentioned in the calendar to prove the ingredients of the offence as contemplated by Section 10(1) and 10(2) of the Essential Commodities Act, as such I am of the opinion that this is not a fit case where the applicants should be further harassed into prosecution by giving another opportunity to the prosecution for leading evidence with regard to the essential ingredients of the offence as contemplated under Section 10(1) and 10(2) of the Essential Commodities Act. 25. 25. In my opinion, therefore, no case has been made out against the accused-applicants on the evidence recorded by the prosecution which would warrant their conviction. 26. In the result, therefore. I allow Criminal Revision No. 1898 of 1973, 1487 of 1972 and 1708 of 1973 and quash the charge which has been framed against the applicants in those cases. I also accept the recommendation made by the Sessions Judge, Bijnor in Criminal Reference No. 426 of 1973 and quash the charge framed against the applicants of that case. Revisions allowed and reference accepted.