JUDGMENT - R.A. JAHAGIRDAR, J.:---In Sessions Case No. 60 of 1972 tried by the learned Assistant Judge there were seven accused. Accused Nos. 1 and 7 are father and son respectively and they were at all material times partners of a firm by the name of Bholaram Jawaharmal at Dhulia. Accused No. 2 is the trader of Malegaon. Accused Nos. 3 and 4 are the traders of a place called Dondaicha and they deal in foodgrains among other things. Accused No. 5 was working as Aval Karkun in the office of the Tahsildar at Malegaon. Accused No. 6 is the railway goods clerk at Manmad Railway Station. Besides these seven accused, who were part of the case, there is a firm of Ratilal Ramlal of Calcutta which also came in the picture because the goods in respect of which the offence was alleged to have been committed in this case were sold to them. 2. Before narrating the allegations on the basis of which the accused were prosecuted, it is necessary to bear in mind that there were to orders regulating the movements of foodgrains at the relevant time in Maharashtra. One was Maharashtra Foodgrains (Export Control) order, 1966, which prohibited export of foodgrains from the State of Maharashtra to any other place outside the State of Maharashtra except in accordance with the permission granted by the authority mentioned in that order. The Maharashtra Food grains Licensing order, 1963 regulated the movement of the foodgrains within the State of Maharashtra alone and even here the foodgrains above a particular quantity could not be sold by one trader to another except in accordance with the permission granted by the Competent Authority under that order. It may also be mentioned that both these orders were promulgated by the Government of Maharashtra under section 3 of the Essential Commodities Act. Any contravention of the provisions of these orders is punishable under section 7 of the Essential Commodities Act. 3. It was the prosecution case in the trial Court that all the accused entered into a conspiracy to export foodgrains from the State of Maharashtra to the firm of Ratilal Ramlal in West Bengal by obtaining fraudulently a permit towards that end. 3. It was the prosecution case in the trial Court that all the accused entered into a conspiracy to export foodgrains from the State of Maharashtra to the firm of Ratilal Ramlal in West Bengal by obtaining fraudulently a permit towards that end. It was contended that at the relevant time exports from the State of Maharashtra to outside were not allowed under the Order of 1966 and the accused in furtherance of their conspiracy obtained two permits for exporting 240 bags of maize and 240 bags of bajra from Manmad to a place called Ramkistpore. According to the prosecution, it was represented to the Tahsildar of Malegaon that Ramkistpore was a place within the State of Maharashtra in Gondia District and this misrepresentation persuaded the Tahsildar to grant them two permits for the export of the maize and bajra. Accused No. 2, who is a trader of Malegaon, made two applications to the Tahsildar requesting permissions for the export of maize and bajra by mentioning in these applications that they were to be exported to Ramkistpore. On the back of these applications an endorsement was made by accused No. 5, who was at that time working as Aval Karkun in the office of the Tahsildar, that Ramkistpore was situated in the District of Gondia. On the basis of these two applications two permits were prepared in the office of the Tahsildar by a clerk and the permits as originally prepared did not specify that Ramkistpore was in the District of Gondia. Accused No. 5 made an entry in the two permits which showed that Ramkistpore was in the District of Gondia. These permits were thereafter signed by the Tahsildar, who, says the prosecution, would not have signed them if it has not been represented to him that Ramkistpore was in Gondia District. 4. Armed with these two permits, accused contacted the carting agent and the railway goods clerk accused No. 6 and managed to send 240 bags of maize and 240 bags of bajra to Ramkistpore in West Bengal. They were successful in doing so because after the permits were actually issued by the Tahsildars office the word "Gondia" in the permits was erased with the result that accused No. 2 was able to persuade the railway goods clerk that Ramkistpore was situated in West Bengal and thus to allot wagons for the transport of maize and bajra. They were successful in doing so because after the permits were actually issued by the Tahsildars office the word "Gondia" in the permits was erased with the result that accused No. 2 was able to persuade the railway goods clerk that Ramkistpore was situated in West Bengal and thus to allot wagons for the transport of maize and bajra. The goods were received by the firm of Ratilal Ramlal. The evidence in the case shows that the sum of about Rs. 4000/- was gained by accused No. 2 and the firm of Bholaram Joharmal. The share of accused No. 2 was quantified approximately at Rs. 1000/-. On these allegations all the accused were charged with the offences punishable under section 120-B and sections 467, 471, 468, 420 all read with section 34 of the Indian Penal Code. 5. The learned trial Judge rejected the prosecution case regarding conspiracy and thus acquitted accused Nos. 1, 3, 4, 6 and 7. He however convicted accused No. 2 of the offences punishable under section 7 of the Essential Commodities Act, section 467 read with section 34 of the Indian Penal Code and sections 471, 468 and 420 read with section 34 of the Indian Penal Code. Appropriate sentences were awarded by him. Accused No. 5 was convicted of the offence punishable under sections 467, 468 and 420 all read with section 34 of the Indian Penal Code. The accused were also acquitted of the offences punishable under sections 120-B of the Indian Penal Code. Both the accused preferred appeals. Criminal Appeal No. 201 of 1972 was preferred by accused No. 5 whereas Criminal Appeal No. 202 of 1972 was preferred by accused No. 2. The learned Additional Sessions Judge of Nasik who heard the appeals allowed them partly. He set aside the conviction of accused No. 5 under section 468 read with section 34 of the Indian Penal Code. He similarly set aside the conviction of accused No. 2 under section 468 read with section 34 of the Indian Penal Code for insertion of the word "Gondia" in permits. 6. The accused have now preferred two revision applications to this Court. Criminal Revision Application No. 348 of 1977 is by accused No. 2 whereas Criminal Revision Application No. 418 of 1977 is by accused No. 5. 6. The accused have now preferred two revision applications to this Court. Criminal Revision Application No. 348 of 1977 is by accused No. 2 whereas Criminal Revision Application No. 418 of 1977 is by accused No. 5. Before I proceed to consider the merits of these two revision applications, it would be appropriate to summarise the facts which have been found by the two courts below. Both the courts below have found that it was accused No. 2 who made the two applications for permits to export bajra and maize to Ramkistpore. Both the applications are in his hand and the signatures are also made by him. It has also been found that accused No. 5, who was admittedly working as Aval Karkun in the office of the Tahsildar, made an endorsement on the reverse of these two applications that Ramkistpore was in the District of Gondia. The permits when originally prepared, did not bear the word "Gondia" on their face. Accused No. 5 added the word "Gondia" after the word "Ramkistpore" in order to show that it conforms with the enforcement which he had made on the back of the two applications. It has also been found that the word "Gondia" which was thus added by accused No. 5 has been erased on both the permits. 7. As far as accused No. 2 is concerned, it is further found that he contacted the carting agent and otherwise took charge of the loading operations of the foodgrains into the railway wagons at Manmad Station. From the evidence it is also crystal clear that when the permits were utilized for the purpose of loading the goods at Manmad Railway Station the insertion of the word "Gondia" on the permits had already taken place. One additional fact must also be mentioned that accused No. 2 had some stake in the export of these goods inasmuch as he was to derive monetary profits of about Rs. 1000/-. I will make reference, while review the cases of respective accused, to the evidence to which my attention has been invited by the learned Advocates appearing for the accused in these revision applications. Mr. Menghade appears for accused No. 5 in support of Criminal Revision Application No. 418 of 1977 whereas Mr. V.S., Kotwal appears for accused No. 2 who is petitioner in Criminal Revision Application No. 348 of 1977. Mr. Menghade appears for accused No. 5 in support of Criminal Revision Application No. 418 of 1977 whereas Mr. V.S., Kotwal appears for accused No. 2 who is petitioner in Criminal Revision Application No. 348 of 1977. For the sake of convenience I will first deal with the case of accused No. 5. 8. Mr. Menghade has pointed out that the word "Gondia" has been written by accused No. 5 on the back of the applications after accused No. 5 inquired with accused No. 2 as to in which District Ramkistpore was situated. It was impossible for accused No. 5 to know in which District a particular place mentioned in an application made by any party is situated. Both the courts below have held that accused No. 5 made this endorsement with a guilty mind because he did not make proper inquiries. Mr. Menghade rightly contended that with the material available in the office of the Tahsildar it is inconceivable that a person of the rank of Aval Karkun can be constructively attributed with the knowledge of the various places in India. Apart from it, it has been brought on record in the testimony of the Tahsildar Shivaji Patil that whenever an application made by a person is incomplete the Aval Karkun has to inquire with the applicant himself for the details that may have to be filled in. If that is so, then it stands to reason that when accused No. 5 says that he made inquiries with accused No. 2 he must be giving reasonably plausible explanation. There is no reason why this explanation should not be accepted. I, therefore, agree with Mr. Menghade on this point and hold that the explanation given by accused No. 5 that he made endorsement of Gondia on the back of the two applications on the information given by accused No. 2 is acceptable. If this is so, then accused No. 5 cannot be held responsible for making alteration even in the permits. The permits were admittedly prepared by a clerk called Datey and he prepared them after taking into consideration the statements made in the applications. Since accused No. 5 had already noted that Ramkistpore was in Gondia District it was necessary that the word "Gondia" ought to be inserted in the permits. The permits were admittedly prepared by a clerk called Datey and he prepared them after taking into consideration the statements made in the applications. Since accused No. 5 had already noted that Ramkistpore was in Gondia District it was necessary that the word "Gondia" ought to be inserted in the permits. The mention of mere Ramkistpore in the permits would have led to the abuse of the permits by the permit holder. Accused No. 5 was therefore, justified in further endorsing on the fact of the permits that Ramkistpore was in Gondia District. If these two facts are accepted, as indeed I am inclined to accept, then there is no question of accused No. 5 deliberately making misrepresentation to the Tahsildar in Order to persuade him to grant permits. Both the endorsements made by him were made in good faith after following the procedure which was prevalent, according to the prosecution evidence itself. The charge under section 420 of the Indian Penal Code must therefore, fail. Thus conviction of accused No. 5 under section 420 read with section 34 of the Indian Penal Code must be set aside and is hereby set aside. 9. Accused No. 5 has been further convicted under section 467 of the Indian Penal Code on the ground that he made alterations in the dates of the permits. The courts below held that this was done by accused No. 5 with the deliberate object of enabling accused No. 2 to export the goods on a later date. Here also the explanation of accused No. 5 is worth considering. He has mentioned that whenever a party is unable to export the goods within the time given by the original permits they approach the office and the Aval Karkun in the Tahsildars office extends the time by altering the dates. He says he had in fact seen about 5 permits in which such extension of time had been given by the Aval Karkun in this Tahsildars office. This case was specifically put to Shivaji Patil, the Tahsildar. He stated in the cross-examination that he did not remember if there were instances prior to accused No. 5 joining the duty of permit being revalidated after the time was over. He also did not know if the supply Aval Karkun was doing that without consulting the Mamlatdar. This case was specifically put to Shivaji Patil, the Tahsildar. He stated in the cross-examination that he did not remember if there were instances prior to accused No. 5 joining the duty of permit being revalidated after the time was over. He also did not know if the supply Aval Karkun was doing that without consulting the Mamlatdar. He also stated that he could not say if accused No. 5 had revalidated the permits as per the previous practice. In other words, he does not deny prevalence of such practice in his office. What is important to note is that no departmental inquiry was conducted against accused No. 5 on the basis of the alterations made. Obviously there is considerable truth in the explanation given by accused No. 5 that he made alteration on the dates in accordance with the practice which was prevalent at the relevant time. There is at least no reason why benefit of doubt should not be given to accused No. 5 in this respect. I, therefore, hold that accused No. 5 is not guilty of any of the offences with which he has been charged. 10. Though I have accepted the statement of accused No. 5 that it was accused No. 2 who informed accused No. 5 that Ramkistpore was within Gondia District, in a criminal case it is not possible to use a statement made by accused No. 5 against accused No. 2. I must therefore, seek independent evidence to see whether it was accused No. 2 who persuaded accused No. 5 to make the said endorsement. There is no such evidence. If this is so and if the prosecution evidence itself shows that the word "Gondia" on the reverse of the applications and on the face of the permits was inserted be accused No. 5, it cannot be said that accused No. 2 was a party to the representation which persuaded the Tahsildar to grant permission. In the result, accused No. 2 must be held to be not guilty of the offence punishable under section 420 of the Indian Penal Code. Indeed the learned Additional Sessions Judge has acquitted accused No. 2 of the offence punishable under section 468 read with section 34 of the Indian Penal Code for the insertion of the word "Gondia" in the permits. Indeed the learned Additional Sessions Judge has acquitted accused No. 2 of the offence punishable under section 468 read with section 34 of the Indian Penal Code for the insertion of the word "Gondia" in the permits. If this is so, I do not see how the learned Additional Sessions Judge could legitimately convict accused No. 2 under section 420 read with section 34. That conviction therefore, is unsustainable and is accordingly set aside. 11. Accused No. 2 has been further convicted for offences punishable under sections 467 and 471 of the Indian Penal Code on the ground that he has dishonestly and fraudulently erased the word "Gondia" on the permits. I have made diligent effort with the able assistance of the Counsel appearing for the accused and the State to find out whether there is any evidence to show that it was accused No. 2 who erased the word Gondia from the face of the two permits. I must confess that there is no direct evidence whatsoever in that regard. Indeed the evidence is to the effect that accused No. 2 was not seen in the office of the Tahsildar by Detey the clerk who actually prepared the permits. There is no evidence to show that after the permits was prepared they were handed over to accused No. 2. The possibility of the application being made by one person and the permits issued pursuant to that application being collected by another person on behalf of the applicant cannot be ruled out. It is also not shown that at all relevant times the permits always remained with accused No. 2. In the absence of some evidence which could be accepted as falling within the realm of probability that it was accused No. 2 who erased the word "Gondia" from the face of the permits, it is not possible to hold him guilty under section 467 of the Indian Penal Code. 12. Mr. Damel, the learned Public Prosecutor has, with some vehemence and not without some justification, contended that in the normal course of events it must be presumed that the permits which were applied for by accused No. 2 were handed over to him. A presumption under section 114 may also be raised. He also pointed out that at all relevant time, the prosecution evidence has shown, accused No. 2 was in command of the operations. A presumption under section 114 may also be raised. He also pointed out that at all relevant time, the prosecution evidence has shown, accused No. 2 was in command of the operations. It was he who contacted the carting agent it was he who contacted the loading clerk in the Railway Station, and it was he who informed the consignee about the dispatch of the goods. Mr. Damle says that at one end you have accused No. 2 making an application and at the other end you have again accused No. 2 who dispatched the goods. In these circumstances, says Mr. Damle, it would be perfectly legitimate to raise a presumption that it was accused No. 2 who erased the word "Gondia" from the face of the permits. I am reluctant to record a conviction on a person on a serious charge under section 467 on the basis of the presumption alone. In such matters I insist upon some corroboration which is wholly absent in this case. The conviction of accused No. 2 must therefore be set aside by giving him the benefit of doubt. 13. If the conviction under section 467 is set aside I will have to proceed to set aside the conviction under section 471 also. It is possible, as Mr. Damle says, that the permits on their face show that there was some erasure and the erasure was such that practically a hole had been made in the permits so issued. That alone, I am afraid, is not sufficient to hold that accused No. 2 was posted with the knowledge of the erasures. That apart, as Mr. Kowtal has hastened to point out, the material circumstances on the basis of which convictions could be recorded have not at all been put to accused No. 2 in his examination under section 342 of the Criminal Procedure Code. In view of these facts and circumstances, I am unable to sustain the conviction of accused No. 2 event under section 471 of the Indian Penal Code. 14. That leaves me with the conviction of accused No. 2 under section 7 of the Essential Commodities Act. The permits on the basis of which accused No. 2 exported the goods to Ramkistpore in fact did not permit him to export the goods outside the State of Maharashtra. 14. That leaves me with the conviction of accused No. 2 under section 7 of the Essential Commodities Act. The permits on the basis of which accused No. 2 exported the goods to Ramkistpore in fact did not permit him to export the goods outside the State of Maharashtra. Both the permits have been given under the order of 1963 and not under the order of 1966. That apart, section 14 of the Essential Commodities Act raises a statutory presumption which it is essential for the accused being prosecuted under the Act to rebut. It says that where a person is prosecuted for contravening any order made under section 3 which prohibits him from doing any act or being in possession of a thing without the lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him. In the instant case accused No. 2 being prosecuted for exporting bajra and maize to a place outside the State of Maharashtra in contravention of the order of 1966 made under the provisions of the Essential Commodities Act, the burden of proving that this export was lawful was upon accused No. 2 and he has miserably failed to discharge that burden. That there is such burden on the accused is laid down by this Court in (Santu Chandamal Daswani v. The State of Maharashtra)1, 68 Bom.L.R. 703. In his statement under section 342 of the Criminal Procedure Code the accused had disowned all his connections with the entire operation that has been shown to have been done by him by the prosecution. He has not given any explanation as to under what authority or how he came to export these goods to a place outside the State of Maharashtra when such export was prohibited by an order under the Essential Commodities Act. 15. Mr. Kotwal however says that even in a prosecution for statutory offence like this it is incumbent upon the prosecution to establish mens rea on the part of the accused. According to him, this has not been done by the prosecution in the instant case. 15. Mr. Kotwal however says that even in a prosecution for statutory offence like this it is incumbent upon the prosecution to establish mens rea on the part of the accused. According to him, this has not been done by the prosecution in the instant case. While it may be true that mens rea must be proved by the prosecution, in the present case where the presumption is raised and the burden of rebutting that presumption is placed upon the accused the question of proving mens rea does not arise at all. It is the accused on whom such a burden is placed to rebut the presumption. Mr. Kotwal then proceeded to say that accused No. 2 is shown to have applied for permits for exporting the goods outside the State of Maharashtra. If in pursuance of these two applications permits are given, accused No. 2 can reasonably assume that these permits have been given for the purpose of exporting the goods to a place outside the State of Maharashtra. He read the contents of the application, which according to him, clearly show that the goods were to be sent by wagons to a place called Ramkistpore. I am unable to accept this line of argument of Mr. Kotwal because there is no evidence on record at all to show that the applications were made for the purpose of exporting goods to a place outside the State of Maharashtra. Indeed that explanations has not been given by any of the accused. If anything, the probability shows that the applications were made for exporting the goods to a place within the State of Maharashtra itself. The evidence in the case clearly shows that the Tahsildar at Malegaon had not been invested with the power of granting permit under 1966 order. In any case, it was open to accused No. 2 to offer an explanation which would have persuaded the Court to hold that he had applied for permission for transporting the goods outside the State of Maharashtra. This has not been done by accused No. 2. There is thus no difficulty in holding that accused No. 2 has hopelessly failed to discharged the burden which has been placed by the statute upon him. He must therefore be held guilty of the offence punishable under section 7 of the Essential Commodities Act. This has not been done by accused No. 2. There is thus no difficulty in holding that accused No. 2 has hopelessly failed to discharged the burden which has been placed by the statute upon him. He must therefore be held guilty of the offence punishable under section 7 of the Essential Commodities Act. This decision of mine accords with the Supreme Court decision in another case relating to the accused. In the case before the Supreme Court accused No. 2 has been prosecuted for similar offences and he had, in similar circumstances on obtaining a permit under the 1963 order, exported the goods to a place outside the State of Maharashtra. The Supreme Court recorded a conviction under section 7 of the Essential Commodities Act see (Sopan Trimbak Wani v. State of Maharashtra)2, 1977 Cri.L.J. 37. 16. Mr. Kotwal with some persuasion has argued that at least the sentence imposed upon accused No. 2 under section 7 of the Essential Commodities Act should be reduced. At the relevant time when the offence was committed, the sentence of imprisonment was not mandatory. Discretion was vested in the Court to impose a sentence of fine only for reasons to be recorded. In the present case Mr. Kotwal points out that the offence was committed more than 11 years ago. The conviction recorded by the trial Court is of 1972. That means the trial alone took five years to complete. Thereafter five years were taken for the disposal of the appeal preferred by him. So, for nearly 10 years accused No. 2 has been engaged in the Court proceedings. I deem this as sufficient reason for imposing the sentence of fine alone. It will not be desirable to send him into jail nearly 11 years after the offence was originally committed. 17. In the result, the following order is passed :--- "Accused No. 5 is acquitted of the offences punishable under section 420 read with section 34 of the Indian Penal Code and also of section 467 of the Indian Penal Code. The sentences imposed upon him for the said offences are set aside. Accused No. 2 is acquitted of the offences punishable under section 420 read with section 34, section 467 and section 471 of the Indian Penal Code. The sentences imposed upon him for the said offences are set aside." 18. The sentences imposed upon him for the said offences are set aside. Accused No. 2 is acquitted of the offences punishable under section 420 read with section 34, section 467 and section 471 of the Indian Penal Code. The sentences imposed upon him for the said offences are set aside." 18. The conviction of accused No. 2 for offence punishable under section 7 of the Essential Commodities Act is hereby confirmed. The sentence imposed upon him for the said conviction however is altered to one of fine of Rs. 2000/-. In default of payment of fine, accused No. 2 shall undergo rigorous imprisonment for six months. The amounts of fine imposed on the other counts, if paid, shall be refunded to accused No. 2. His bail bond shall stand cancelled after the fine is paid. -----