JUDGMENT 1. - The Revision petition No. 347 of 1976 is directed against the learned Addl. Sessions Judge, Sikar dated 27th May, 1976, whereby the accused-petitioner has been convicted and sentenced under Section 3/7 of the Essential Commodities Act, 1955, read with Clause (4) of the Rajasthan Foodgrains (Prevention of Hoarding) order, 1973, to pay a fine of Rs. 1,000/- and in default of payment of fine to simple imprisonment for two months. 2. Criminal Revision No. 316 of 1976 is directed against the judgment of the learned Addl. Sessions Judge, Sikar dated 25th May, 1975, whereby the accused-petitioner has been convicted and sentenced under Section 3/7 of the Essential Commodities Act read with clause 4 of the Rajasthan Foodgrains (Prevention of Hoarding) Order, 1973. and sentenced to pay a fine of Rs. 1,000/- and in default of payment of fine to simple imprisonment for two months. 3. Criminal Revision No. 317 of 1976 is directed against the judgment of the learned Addl. Sessions Judge dated 27th May, 1976, whereby the accused-petitioner has been convicted and sentenced under section 3/7 of the Essential Commodities Act, 1955 read with Clause 4 of the Rajasthan Foodgrains (Prevention of Hoarding) Order, 1973, to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for two months. 4. As the point of law involved in all these three revision petitions is the same, they are being disposed of by this single order. 5. In all the three cases, the Enforcement Inspector searched the premises of the accused-petitioners and that they were holding more than 100 quintal of Foodgrains and as such, the accused-petitioners had to submit monthly returns. The contention of the accused- petitioners is that they had submitted the monthly returns. The learned Addl. Sessions Judge and the learned trial Court found the accused guilty and fined each of them in the manner stated above. 6. On behalf of the accused-petitioners, it has been contended that the prosecution has failed to discharge the burden and has not succeeded in bringing the guilt home to the accused. It was contended that the best evidence which the prosecution could produce was the clerk who used to receive the returns. 7. On behalf of the prosecution, it was contended that only the Enforcement Inspector has been examined as a material witness. It was contended that the best evidence which the prosecution could produce was the clerk who used to receive the returns. 7. On behalf of the prosecution, it was contended that only the Enforcement Inspector has been examined as a material witness. The other witness who has been examined is a motbir with regard to the various memos. It was contended on behalf of the accused-petitioner that the best evidence was to produce, and the register maintained for receiving the returns, and the clerk who used to receive the returns from the various dealers. It was, therefore, contended that as the prosecution has not led the best evidence available, no adverse inference can be drawn against the accused-petitioner, and that the evidence led on behalf of the accused-petitioners that returns were submitted should have been accepted by the learned lower Courts. 8. Reliance was placed on : Jeth Mal v. State, AIR 1968 Guj 163 Mukandlal v. The State, AIR 1957 Raj 178 ; Nathu Lal v. State of M.P., AIR 1966 SC 43 ; and Sawal Das v. State of Bihar, AIR 1974 SC 778 : 1973 CAR 71) . 9. On behalf of the State, it was contended by the learned Public Prosecutor that the evidence led by the defence is not worthy of credence. It was also contended that the Enforcement Inspector had made the statement after inquiring from the clerk dealing with the civil supplies. It was further contended that it was not necessary to produce the register which was maintained as a receipt register for receiving the returns. It was also contended that it was not necessary to examine the clerk of the Civil Supply Department who used to receive these returns. It was further contended that Section 10-C read with Section 14 of the Essential Commodities Act and Section 106 of the Evidence Act casta burden on the accused-petitioner to show that the returns were duly submitted. 10. Reliance was placed, on behalf of the State, on Krishan Kumar v. Union of India, AIR 1959 SC 1390 ; Collector of Customs v. D. Bhoormull, 1974 (2) SCC 544 ; C. S. D. Swami v. The State, AIR 1960 SC 7 and Narain Prasad v. The State of Rajasthan, 1971 RLW 173 . 11. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 11. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. Clause 4 of the Rajasthan Foodgrains (Prevention of Hoarding) Order, 1973, reads as under:- "4. Duty to declare possession of excess stock : Any person having in his possession any quantity of foodgrains exceeding that permitted by clause (3) shall submit a declaration in the form given in the Second Schedule, to (a) the District Supply Officer, if the stocks are held or possessed at a place which is the headquarters of a district, and (b) the Tehsildar, if the Stocks are held or possessed at any other place, before the 16th day of February, 1973 and thereafter at the end of every month so as to reach him within three days after the close of the month." 12. Section 10-C of the Essential Commodities Act, 1955 reads as under "Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the Act charged as an offence in that prosecution. Explanation. In this section "Culpable Mental State" includes intention, motive, knowledge of a fact and the belief in or reason to believe, a fact. (2) For the purposes of this section, a fact is said to,be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability." 13. Section 14 of the Essential Commodities Act reads as under:- "Burden of proof in certain cases : 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 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." Section 106 of the Indian Evidence Act, 1872 reads as under:- "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 14. The contention of the learned counsel for the petitioners is that the initial burden of proving the case always lies on the prosecution and it never shifts. His contention is that the prosecution has failed to discharge its burden by not examining the Clerk who used to receive these returns, and by not producing the register which was maintained for receiving such returns. It was contended that in the absence of this primary evidence, there is no reason to disbelieve the statement of the defence witnesses who state that he had submitted the returns in the office of the Civil Supplies. It was also contended that the evidence of the Enforcement Inspector is not admissible as it is only a hearsay evidence, and he had no personal knowledge that the accused-petitioners have not submitted their returns.In Jethalal v. The State it was held as under:- "When a person is prosecuted for contravention of Cl. 4 of the Iron and Steel (Control) Order, 1956, Sec. 14 of Essential Commodities Act, casts a burden on the accused of proving possession of a lawful authority, permit or licence to acquire, and the burden of proving the doing of the prohibited act of acquiring and acquiring from any of the three sources specified in Cl. 4 remains on the prosecution. Unless these two ingredients are established by the prosecution, burden under S. 14 would not shift on the accused". "Language of S. 106 and particularly the word "especially" used therein connotes that the facts must in their nature be such as could be within the knowledge of the accused and possibility of no one else. S. 106 cannot come into play where the fact concerned are such as are capable of being known by others also. If it were possible by due diligence and proper investigation to find out the facts even though it may be very difficult to do so, it cannot relieve the prosecution from the obligation of establishing the ingredients of an offence alleged. This section cannot be used to shift the onus of establishing an essential ingredient of the offence on the accused." In Mukandlal v. The State it was held as under:- "Sub-cl. This section cannot be used to shift the onus of establishing an essential ingredient of the offence on the accused." In Mukandlal v. The State it was held as under:- "Sub-cl. 17(1) Rajasthan Food Grains Control Order (1949) cannot be treated as an exception to sub-clause (2), Hence, S. 105 Evidence Act has no application and the burden of proof is on the prosecution to prove that the food grains, in excess of that prescribed under subclause 17(1) had been in possession of the accused for more than a week. The burden of proof is always on the prosecution even in cases where it is within the special knowledge of the accused as to for what period he had been holding the possession of the food grains." In Nathulal v. State of M. P. it was held as under:- "Mens rea is an essential ingredient of a criminal offence. A statute may exclude the element of mens rea; it is, however a sound rule of construction which is adopted in England and also accepted in India, to construe a provision which creates an offence in conformity with the common law rather than against it except where the statute expressly or by necessary implication excludes mens rea. Of the question whether the element of guilty mind is excluded from the ingredients of an offence the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is not by itself decisive. Only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated that mens rea may, by necessary implication, be excluded from a statute. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof." In Sawal Das v. State of Bihar it was held as under:- "The burden of proving a plea specifically set up by an accused certainly lies upon him. But neither section 103 nor Section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction nor makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. It is only when prosecution has led evidence which if believed will sustain conviction nor makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. "The language of Section 106 Evidence Act does not, in our opinion warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab (supra) rathat the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. On behalf of the State, reliance was placed on Krishan Kumar v. Union of India (supra) in which it was held as under:- "It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is enough to establish facts which give rise to a suspicion and then by reason of S. 106 of the Evidence Act to throw the onus on him to prove his innocence." In Collector of Customs v. D. Bhoormull it has been held as under:- "While it is true that in criminal trials to which Evidence Act, in terms, applies, Section 106 is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is, that it may proportionately with the gravity or the relative triviality of the issues at stake in some special type of cases, lighten the burden of proof resting on the prosecution." In C. S. D. Swami v. The State (supra), it has been held as under:- "Section 5 (3) does not create a new offence but only lays down a rule of evidence, enabling the Court to raise a presumption of guilt in certain circumstances - a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him." In Narain Prasad v. The State of Rajasthan (supra), it has been held that the jvisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 15. In the instant case, the provisions of Section 106 of the Indian Evidence Act are not applicable. The fact was not within the special knowledge of the accused. The prosecution has examined the Enforcement Inspector only. The register which was maintained for showing the receipt of such returns has not been produced. The clerk who used to receive the returns and to maintain these registers has also not been produced. The fact was not within the special knowledge of the accused. The prosecution has examined the Enforcement Inspector only. The register which was maintained for showing the receipt of such returns has not been produced. The clerk who used to receive the returns and to maintain these registers has also not been produced. The Enforcement Inspector made an inquiry from the Civil Supply clerk who had nothing to do with the maintaining of this register and the receipt of the statements by the dealers. Under such circumstances, the primary burden which lay on the prosecution has not been discharged. Moreover, the prosecution was in a position to examine the clerk concerned and to produce the relevant register. This evidence was within the power of the prosecution, and could have been produced with due diligence. If the prosecution has not employed due diligence it cannot be said that the primary burden which lay on the prosecution has been discharged. 16. The provision of Section 10-C of the Essential Commodities Act have absolutely no relevancy in the present set of circumstances. The question of preponderance of probabilities in the present case does not arise as the primary burden which lay on the prosecution has not been discharged. Similarly, Section 14 of the Essential Commodities Act has no relevancy, and does not in any way help the prosecution. 17. The dealer had employed a clerk, Dwarka Prasad, who used to deliver these returns. He has stated on oath that he had delivered the returns in the month of September 1973. In all these three cases, the learned Addl. Sessions Judge has held that the prosecution has not succeeded in establishing that there was any mens rea on the part of the accused. As the prosecution has not examined the relevant evidence which was available, and as the evidence of the Enforcement Inspector,is inadmissible in evidence as being heresay, it is a case of conviction based on no legal evidence whatsoever. 18. For the reasons stated above, all these three revision petitions are allowed. The conviction and sentence of the accused-petitioners are hereby set aside. Fine, if realised from the accused-petitioners, shall be refunded to them. The bail-bonds of the accused-petitioners are hereby discharged.Revision allowed. *******