JUDGMENT 1. - This is an appeal filed by the State of Rajasthan against the judgment of the S.D.M. Jhunjhunu, dated 30-3-1974, in Cr. case No. 293/1973 by which the respondents were found guilty under section 3/7 of the E.C. Act, and were fined Rs. 100/- and in default of payment of fine to undergone simple imprisonment for a period of seven days. 2. Brief facts of this case are that after receiving an information the Sub-Inspector Shri Ram Kumar checked the house of accused-respondents situated at Chirawa. He found 24 bags containing 240 Kg. wheat at the house of Sajjan Singh. Similarly in the house of Banwari Lal he found 50 bags of wheat containing 5027 kgs. The police after investigation at the case submitted a charge-sheet against the respondent accused persons under section 3/7 of the E.C. Act. 3. Charge under section 3/7 was framed by the learned S.D.M., Jhunjhunu against the respondents and both respondents pleaded guilty. On this plea of guilty, the learned S.D.M. found them guilty of the charge levelled against them and sentenced each accused to pay a fine of Rs. 1001-. 4. Learned Public Prosecutor has argued that the punishment awarded to the accused persons is most inadequate. Learned Magistrate has only fined Rs. 100/- each accused and looking to the wheat found in their possession without proper licence this punishment of Rs. 100/- is inadequate and the punishment be enhanced. It was also argued that while passing the judgment the learned Magistrate has not passed any order with regard to the confiscated wheat. Learned Magistrate has committed error in not passing any order with regard to this wheat which was found in possession of the accused persons. When the Magistrate has found the accused persons guilt of the offence under section 3/7 of the E.C. Act, the wheat should have been forfeited to the State. 5. Learned counsel for the respondent has argued that actually this wheat belongs to one Pala Ram. During the investigation it has come in notice that the wheat belonged to Pala Ram and as the truck in which the wheat was brought by Pala Ram failed so he kept the bags at the residence of the accused persons. 5. Learned counsel for the respondent has argued that actually this wheat belongs to one Pala Ram. During the investigation it has come in notice that the wheat belonged to Pala Ram and as the truck in which the wheat was brought by Pala Ram failed so he kept the bags at the residence of the accused persons. It is argued that as the prosecution had admitted that wheat is of Pala Ram it was for the prosecution to prosecute Pala Ram and the accused persons should not have been challaned. Thus the accused persons have not pleaded guilty but they have explained that the wheat belonged to Pala Ram and the court should have enquired into this matter. 6. I have considered the arguments and looked into the file of the lower court. In the charge sheet the police has mentioned that they have enquired during the investigation and also recorded the statement of Pala Ram who told the police that the wheat belongs to him and it is under valid permit. The Investigating Officer found that this statement has not been substantiated by Pala Ram. He has not submitted any proof to this effect that the wheat belonged to him and was under valid permit. As such, dis-agreeing with the contention of Pala Ram, challan was submitted only against the accused persons in whose possession the bags of wheat were found. If Pala Ram had valid permit and he was carrying these bags under his permit, he should have produce the permit before the Investigating Officer and should have satisfied him. As no proof was submitted by Pala Ram and the wheat was recovered from the house of the accused persons, the Investigating Officer was justified and correct in submitting the charge-sheet against the accused persons. There was no question of filing any challan against Pala Ram. Even at the time of recording plea of guilty, the accused persons have no doubt stated about this wheat that it belonged to Pala Ram. It was for the accused persons to prove this fact but in the second line they have admitted the guilt so the plea of guilt is sufficient one and I do not agree with the learned counsel for the respondents that the accused persons have not pleaded guilty but have said a conditional answer. This is nothing but clear plea of guilty. This is nothing but clear plea of guilty. Secondly, the accused persons have not filed any appeal or revision against this plea of guilty. It means that he is not prejudiced by what he has stated before the learned S.D.M. while recording the plea of guilty. Under such circumstances, I hold that the accused persons have clearly admitted their guilt and this is clear from the plea of guilt. 7. Learned Magistrate has fined only Rs. 100/- to each accused. Section 7 of the E.C. Act, 1955, which was applicable at that time provides penalty for contravening any order under section 3 of that Act. In this Section, imprisonment for a term which may extend to five years and shall also be liable to fine has been provided for contravening order under section 3 of the Act. But under proviso to this Section, if the offence is the first offence and if the Court is of the opinion that a sentence of fine only will meet the ands of justice, it may for reasons to be recorded, refrain from imposing a sentence of imprisonment. It is not in dispute that the offence of the accused persons is the first offence so the case is covered by proviso to Section 7 (1)(A)(ii). This is the first offence of the accused persons and the learned Magistrate is empowered to sentence fine only but for that he has to record reasons. 8. I have perused the judgment. He has not recorded any reasons for imposing a punishment of fine only to the accused parsons. But as the case is of 1973 and ten years have passed, now it is futile to comment on this part of the judgment about not recording any reasons by the learned S.D.M. It is also not justified now to pass any substantial sentence to the accused respondents. As such, I agree that punishment of fine will meet the ends of justice under these circumstances in the present case but looking to the quantity of which was found in the possession of the accused persons without valid permit the punishment of Rs. 100/-is certainly inadequate. But as the years have passed to this case, sufficient mental agony has been faced by these accused persons; I take lenient view in this matter. Certainly a fine of Rs. 100/- is inadequate, so I enhance this punishment to Rs. 100/-is certainly inadequate. But as the years have passed to this case, sufficient mental agony has been faced by these accused persons; I take lenient view in this matter. Certainly a fine of Rs. 100/- is inadequate, so I enhance this punishment to Rs. 250/- each accused person. In default of payment of this fine, each accused shall undergo one months simple imprisonment. The fine be deposited within two months. If Rs. 100/ have been deposited by the accused persons it may be given credit. 9. I have gone through the judgment of the learned S.D.M. He has not passed any order about the confiscation of the wheat. It was mandatory on the learned Magistrate to pass order about the confiscation of the wheat but no order has been passed while pronouncing the judgment but from the file of the lower court, I find that on 6.5.1974, the accused persons submitted an application before the S.D.M. Jhunjhunu, requesting to return the wheat which was handed over to Superdar. On this application the learned S.D.M. has passed an order that limitation for file the appeal has expired, the property be returned. From this endorsement I found the learned S.D.M. passed the order to return 75 Quintals and 35 Kilo wheat to the accused persons. There is an order on the file dated 13.8.74 addressed to Shivnath to return 74 bags of wheat to Banwari Lal and Sajjan Kumar accused persons. This order of the learned Magistrate is bad and illegal. The accused persons have been found guilty of offence under section 3/7 of the E.C. Act and still the learned S.D.M. passed the order returning the confiscated wheat to the accused persons. It is strange that the learned S.D.M. has not correctly read Section 7 of the E.C. Act. Section 7 (1) (B) lays down that any property in respect of which the order has been contravened shall be forfeited to the government. Under proviso this Section, the Court is empowered to direct forfeiture in respect of the whole or any part of the property after recording reasons for that so it was the duty of the learned Magistrate to forfeit the wheat in-spite of passing the order returning the wheat to the accused persons. This is illegal order. The S.D.M. should have consulted the Section and then should have passed the order on the application. This is illegal order. The S.D.M. should have consulted the Section and then should have passed the order on the application. I think that the learned S.D.M. without notice to the A.P.P. or the State Government and without hearing other side passed this order on the application of the accused persons. It is regretted that the learned S.D.M. has acted in the most unexpected manner. He has passed a wrong order by returning the wheat to the accused persons. I, therefore, set aside that order and direct that the wheat be forfeited to the Government. The wheat has been handed over to the accused persons. It is directed that the accused persons should deposit the price of the wheat, 74 bags were recovered from their possession. According to Rajasthan Wheat (Regulation of Trade) Order 1973, read with Rajasthan Food Grain (Prohibition of Hoarding) Act, 1973, a consumer having a family of 5 or less than 5 persons could hold in his possession 2 quintals of wheat and in case a consumer having a family of more than 5 persons could hold 5 quintals wheat. In the present case, there are two accused persons. It would be unnecessary to make enquiry about the number of family members of each accused as ten years have passed. I presume that each accused has a family of more than 5 members. As such each accused could hold 5 quintals wheat at there relevant time. Thus 10 quintals of wheat i.e. 5 with each accused person was permissible at that time and the remaining 64 quintals 35Kg. are liable to but forfeited to the State Govt. The accused persons shall deposit the price of 64 quintals-35 K.g. wheat. The price will be calculated according to the rate of F.C.I. prevailing in the year 1973. After calculating the price of 64 quintals-35 K.g. wheat, according to the rate of F.C.I., the amount shall be deposited by the accused persons in the State Treasury within two months. The amount of wheat according to the rate of F.C.I. prevalent in the year 1973 shall be calculated by the S.D.M., Jhunjhunu, on the application of the accused persons.Appeal allowed. *******