Judgment S. Hoda, J. In this revision application, the petitioner has challenged the judgment and order passed by the learned 6th Additional Sessions Judge, Munger in Criminal appeal no. 90/86 by which he has upheld the conviction of the petitioner under section 7 of the Essential Commodities Act passed by the Sub-divisional Judicial, Magistrate, Sadar, Munger with modification in the sentence. 2. The petitioner is the proprietor of the firm M/s Shoki Lal and Hira Lal and carries on business as general marchant and also sells battery as a retail dealer. On 10.7.71 in the evening an inspection was conducted by the Marketing Officer, Munger of the business premises of the petitioner and it was found that the petitioner had not displayed the stocks and prices of torch battery and did not supply the relevant registers and cash memos of the shop for inspection by the complainant. It was also alleged that the petitioner admitted his fault and acknowledged the same in writing. It was further mentioned in the complaint that the petitioner withheld the sale of battery for a pretty long time. On the basis of aforesaid allegation a complaint was filed against the petitioner on 17.7.71 before the S.D.J.M. by the complainant (P.W. 3) for violation of clauses 4, 5, and 7 of the Bihar Essential Commodities other than the foodgrains, Prices and Stocks (Display and Control) Order, 1967 (hereinafter referred to as 1967 Order). 3. On the basis of the allegation made in the complaint cognizance was taken on 19.7.71 against the petitioner for the offence under section 7 of the Essential Commodities Act and charges were framed on 4.12.78. 4. The trial court on the basis of the witnesses examined in the case and material available on the record convicted the petitioner under section 7 of the Essential Commodities Act and sentenced him to undergo rigorous imprisonment for 1½ years. On appeal the learned Additional Sessions Judge upheld the conviction but reduced the sentence from 1½ years to 4 months R.I. 5. Mr. Navniti Pd. Singh learned counsel appearing for the petitioner, has firstly contended that there was no provision under 1967 Order casting a liability upon the petitioner to maintain books of account and other relevant registers and as such non-production of books of account and other relevant register does not attract any penal provision. Mr. Navniti Pd. Singh learned counsel appearing for the petitioner, has firstly contended that there was no provision under 1967 Order casting a liability upon the petitioner to maintain books of account and other relevant registers and as such non-production of books of account and other relevant register does not attract any penal provision. On the other hand learned counsel appearing for the State submitted that the petitioner was obliged to produce any book, account or other document showing transaction to the Inspecting Officer. 6. From perusal of the provision contained in 1967 Order, it will be apparent that none of the provision provides for maintenance of books of account or stock register and in absence of such a provision non-production of any books of account or relevant register cannot make the petitioner liable to be prosecuted. Unless the Jaw casts a duty on the dealer to maintain stock register, books of account, in my view, he cannot be prosecuted for non-production of the same. Moreover the trial court has itself held in para-11 of the judgment that there was mitigating circumstance in favour of the petitioner to the effect that he could not produce the registers and cash memos for inspection by the complainant because distribution of batteries was being made. 7. It has been next contended that there is no legal evidence on the record to show that there was no display of the price and stock. In this connection, it has been submitted that P.W. 1 has clearly stated that on the date of alleged occurrence stock and price of the torch battery has been displayed on the Board in the shop but the learned courts below have wrongly rejected his evidence on the ground that P.W. 1 was not examined after charge. Further it has been contended that the court below had relied on the evidence of P.W. 3 in arriving at the conclusion that there was no display of stock and price of torch battery on the Board which is illegal as P.W. 3 was never produced for cross-examination after charge in spite of the fact that the petitioner wanted to cross-examine P.W. 3. In order to substantiate his point learned counsel has taken me to the provisions of sections 244 to 247 of the Code of Criminal Procedure which deals with the cases that are instituted otherwise than on police report. In order to substantiate his point learned counsel has taken me to the provisions of sections 244 to 247 of the Code of Criminal Procedure which deals with the cases that are instituted otherwise than on police report. Section 244 of the Cr. P.C. provides that when in any warrant case, instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 of the Cr. P.C. deals with the discharge of the accused when the Magistrate upon consideration of the evidence referred to in section 244 comes to the conclusion that no case is made out. Section 246 of the Cr. P.C. provides for procedure where the accused is not discharged. It will be relevant to quote that section which is as follows; (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (4) If the accused refused to plead or does not plead or claims to be tried or if the accused, is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (5) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (5) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged. From perusal of the provision of section 246 clause 4, it will appear that after framing of the charge it is for the accused to say whether he wishes to examine any of the witnesses of the prosecution whose evidence has been taken and if he does so wish then sub-section (5) provides that the witnesses named by him shall be recalled and after cross-examination and re-examination, if any, he shall be discharged. Thus it is the duty of the accused to cross-examine any prosecution witness whose evidence has been taken before charge and failure on the part of the accused to cross-examine any such prosecution witness cannot lead to an adverse inference against the accused on this account alone. In the present case, it would appear that P.W. 1 had stated that there was display of price and stock of torch battery on the Board and as such there was nothing adverse to the petitioner for which he could have cross-examined him after charge. So far P.W. 3 is concerned he has stated that there was no display of price and stock battery and further on recall by the prosecution P.W. 3 produced exhibit 2 after a lapse of ten years and as such the petitioner wanted to cross-examine him and for which the petitioner had taken several steps but inspite of that no opportunity was given to the petitioner to cross-examine P.W. 3 after charge. Subsequently P.W. 4 was examined by the prosecution who stated on the basis of hearsay that P.W. 3 was dead. It has been further contended that the finding of the appellate court that the petitioner declined to cross-examine P.W. 3 is not correct as is would appear from the order passed by the 4th Additional Sessions Judge, Munger in Cr. Revision no. 189/81 disposed of on 14th August, 1984 that the petitioner was always ready to cross-examine P.W. 3 but it was the prosecution which thwarted the attempt of the petitioner to cross-examine P.W. 3. Revision no. 189/81 disposed of on 14th August, 1984 that the petitioner was always ready to cross-examine P.W. 3 but it was the prosecution which thwarted the attempt of the petitioner to cross-examine P.W. 3. Thus, in the light of the discussion made above the evidence of P.W. 3 cannot be taken into consideration for fastening the guilt. 8. It has been next contended by learned counsel for the petitioner that the learned courts below have erred in relying on exhibit-2 which is said to be confessional statement of the petitioner in which it is said that the petitioner had given in writing that there was no display of price and stock of torch battery as the same was not put to the accused in his cross-examination under section 313 of the Cr. P.C. 9. Examination of the petitioner under section 313 of the Cr. P.C. has been annexed as Annexure-2 to this petition. From perusal of the same, it will appear that this matter was never asked from the petitioner. 10. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 S.C. 1622 it has been held by the Supreme Court that any circumstance against the accused which was not put under section 313 of the Cr. P.C. cannot be used against him. It was held as follows :- "This has been consistently held by this Court as back as 1953 where in the case of Hate Singh Bhagat Singh vs. State of Madhya Bharat AIR 1953 SC 468 this court held that any circumstance in respect of which an accused was not examined under section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under section 342 or section 313 of the Criminal Procedure Code, the same cannot be used against him." 11. Thus from the facts stated above it is patently clear that this important confession of the petitioner was never put to him when he was examined under section 313 of the Cr. P.C. and as such it has to be completely excluded from consideration. The courts below have erred in relying on the confessional statement exhibit-2. 12. Thus from the facts stated above it is patently clear that this important confession of the petitioner was never put to him when he was examined under section 313 of the Cr. P.C. and as such it has to be completely excluded from consideration. The courts below have erred in relying on the confessional statement exhibit-2. 12. In the light of discussion made above, this revision application is allowed and the conviction of the petitioner cannot be upheld and it is accordingly set aside and he is discharged from the liability of bail bond.