Judgment Madan Mohan Prasad, J. 1. This is an application in revision directed against the conviction of the petitioner under (as stated by the courts below)sections 7 (1) and 11 of the Bihar Weights and Measures (Enforcement) Act, 1959 (hereinafter called the Act) and the sentence of fine of Rs.200 u/s, 11 or in default of one months imprisonment, their being no separate, u/s, 7 of the Act. 2. The prosecution case is that the Inspector of Weights (P. W.1) went to the flour mill belonging to this petitioner, and his brother (whose application has already been dismissed by this court) to inspect the weights and measures in use. He found the petitioner and his brother in the shop and the petitioners brother viz. , Surendra using weights of 2 kilograms and 500 grams which were unstamped, and also stone purporting to be weighing 100 grams, while weighting Sour to be sold to a customer. Besides this, he found other weights of stones said to be weighing 200 grams and 50 grams. The Inspector seized the stone weights and the unverified and unstamped weights and prepared a seizure list in the presence of P. W.3 who signed the same. After getting the sanction of the Controller of Weights and Measures the Inspector filed the complaint. 3. The defence of the petitioner is that the flour mill was closed on the relevant date and the prosecution story is false and has been set up at the instance of one Upendra who was inimical to the petitioner. Both the courts below rejected the defence case and the evidence of the two witnesses produced in support thereof, and convicted the petitioner, as stated above. 4. At the hearing of this application learned counsel has drawn attention to the fact that the courts below have wrongly mentioned sections 7 and 11 as the sections under which the petitioner has been convicted, for, the penal sections for violation of the provisions of the aforesaid two sections respectively are sections 23 and 25 of the Act. Obviously, the two courts below have committed this slip in not mentioning the penal sections. Apparently, however, both the courts meant the conviction to be under sections 23 and 25 of the Act. 5. Counsel for the petitioner has urged two points. Obviously, the two courts below have committed this slip in not mentioning the penal sections. Apparently, however, both the courts meant the conviction to be under sections 23 and 25 of the Act. 5. Counsel for the petitioner has urged two points. Firstly, that the petitioner was not present at the shop, there being no clear evidence to that effect and for that reason he is not liable. Secondly, that there was no good reason for the courts below not to accept the evidence of P. W.3 who was declared hostile and if his evidence be accepted, there was no seizure of the weights and measures and the prosecution story is thus false. I am afraid neither of the two points has any substance. 6. It appears from the evidence of P. W.1 that he has stated that he had gone to the mill of this petitioner and Surendra was using the weights, as stated earlier, and "they had other unverified weights of 1968 and stone weights". In the complaint petition (Ext.3) he had stated that both the accused were present. In his evidence, however, he has not clearly stated about the presence of both the accused. The other witness P. W.2 also has not stated in so many words about the presence of both the accused. There is thus, unlike the complaint petition, no clear statement about the presence of the petitioner. The mere statement of P. W.1 using the plural "they" while stating about the other unverified and stone weights, is not enough to prove his presence. 7. The question is whether the absence of evidence about the presence of this petitioner is of any help to him. Sec.23 provides as follows : - "whoever, after the expiry of three months from the commeneement of this section, sells or causes to be sold or delivers or causes to be delivered in the course of any transaction for trade or commerce any article by any denomination of weight or measure other than one of the standard weights or measures shall be punishable, for a first offence with fine which may extend to two thousand rupees, and for a second or subsequent offence, with imprisonment for a period which may extend to six months, or with fine, or with both. " It will appear therefrom that the person who sells or causes to be sold" is liable. " It will appear therefrom that the person who sells or causes to be sold" is liable. If the petitioner was not present there he could not be said to have sold. Next question is whether he could be deemed to have caused to be sold. That would depend upon the evidece of his knowledge and consent for the use of such weights or measures. There is no evidence in the present case that the petitioner had caused to be sold. The petitioner cannot thus be convicted in view of the aforesaid doubtful circumstances, under section 23 of the Act for the contravention of section 7 (1) thereof. 8. Coming to the other charge, section 25 of the Act is as follows : - "whoever uses in any transaction for trade or commerce or has in his possession for such use any commercial weight or measure or any weighing or measuring instrument which has not been verified or re-verified or stamped in accordance with the provisions of this Act and the rules made thereunder shall be punishable for a first offence, with fine which may extend to two thousand rupees, and for a second or subsequent offence, with imprisonment for a period which may extend to six months, or with fine, or with both. Explanation : - (1) When any such weight or measure or weighing or measuring instrument is found in the possession of any trader or any employee or agent of such trader, such trader, employee or agent shall be presumed until the contrary is proved, to have had it in his possession for use in transaction for trade or commerce. (2) Where any weight or measure or weighing or measuring instrument is used or possessed in contravention of this section by any employee or agent of a trader on behalf of such a trader, such trader shall, unless it be proved that the offence under this section was committed by his employee or agent without his knowledge or consent, be also deemed to be guilty of the offence". It will thus appear that under this section a person who "uses" or "has in his possession for such use" is punishable. It will thus appear that under this section a person who "uses" or "has in his possession for such use" is punishable. It will appear from explanation (1)that when such weight or measure is found in the possession of even the agent or employee, such trader, employee or agent is to be presumed to have had in his possession for use. The second explanation is again clear to the effect that when such weight or measure is used by any employee of the trader, such trader is guilty of the offence unless he proves that the offence was committed without his knowledge or consent. 9 In the present case, the petitioner and his brother both are said to be the owners of the shop a fact which has not been denied. The other brother, presumably a partner, was using weights and measures other than standard ones while selling flour to customer. Obviously he was acting not only on his own behalf but also on behalf of the petitioner. The petitioner thus would be deemed guilty of the offence unless he proved that the transaction was without his knowledge or consent. In this case the petitioner has not done so. His conviction under section 25 of the Act is, therefore, legal and proper. 10. Both the courts below have faund P. W.3 who was declared hostile by the prosecution, to be an unreliable witness. He had made a signature on the seizure list showing the seizure of the weights and measures. It is not uncommon to find witnesses of seizure becoming hostile to the prosecution subsequently. In this case the seizure list was signed not only, by P. W.3 but by another person also namely, P. W.2 also who has proved that fact. The courts below have rightly discarded the evidence of this witness. 11. In the result, I would set aside the conviction of the petitioner under section 23 but maintain the conviction under section 25 of the Act for the contravention of section 11 thereof. The sentence calls for no interference. This application is accordingly allowed in part. Application partly allowed.