K. N. OJHA, J. Instant revision has been preferred against the judgment and order dated 30-4-1987 passed by the learned Sessions Judge, Bijnor, dismissing Criminal Appeal No. 19 of 1986, Rashid Ahmad v. State, and confirming the order of conviction and sentence dated 4-3-1986 passed by the learned Special Judicial Magistrate, Nagina, district Bijnor, in Criminal Case 38 of 1986, State v. Rashid Ahmad and Khurshid Ahmad, by which Rashid Ahmad, revisionist, was held guilty under Section 3 of the Essential Commodities Act read with Rules 3 and 9 (2) of U. P. Cement Control Order, 1972 and was sentenced to undergo RI of 6 months and fine of Rs. 1000 was imposed and in case of default in payment of fine Rashid Ahmad had further to undergo two months RI. The co-accused Khurshid Ahmad son of Rashid Ahmad was acquitted. 2. Heard Sri Ikram Ahmad learned Counsel for the revisionist and Sri Anoop Ghosh, learned AGA and have gone through the record. 3. The case against accused Rashid Ahmad is that in a surprise raid on 26-6-1981, 28 bags of cement were recovered from his house. He did not dispute the recovery of cement but he pleaded that he was working as a contractor in Tube-well department. 20 bags cement was issued to him on 5-6-1981 and 25 bags cement was issued to him on 18-6-1981 by the Tube-well department. He had used 17 bags of cement and remaining 28 bags of cement, which were to be used for construction work of the Tube-well department, was lying at his residence. Sub-Divisional Magistrate along with police party made search at his residence and recovered 28 bags. At the time when the raid was made Rashid Ahmad was not present at his residence and his son Khurshid Ahmad aged about 17 years was present, but he could not show papers of cement. Both were prosecuted and revisionist was convicted. FIR Exhibit Ka-2 was lodged by Ram Bahadur, Sub-Divisional Magistrate, Nagina. In the FIR it was written that when asked Khurshid said the cement was of his father. He was a contractor. In Tube-well department and the cement was kept for constriction of building of Tube-well department. 28 bags of cement was recovered but papers could not be shown. 4. Prosecution examined PW 1 constable Bhure Singh, PW 2 Abdul Haie, Sub-Registrar and PW 3 Lalman Singh, retired Sub-Inspector. He was a contractor. In Tube-well department and the cement was kept for constriction of building of Tube-well department. 28 bags of cement was recovered but papers could not be shown. 4. Prosecution examined PW 1 constable Bhure Singh, PW 2 Abdul Haie, Sub-Registrar and PW 3 Lalman Singh, retired Sub-Inspector. The revisionist examined Subhash Chand Sharma, a clerk in Tube- well Department, Bijnor, who stated that permits of 20 bags and 25 bags cement vide exhibit Kha-1 and Kha- 2 were issued to Rashid Ahmad, which finds place in stock register. The order dated 13-11-1981 passed by the Collector, Bijnor was also proved by him to show that this cement was given to Rashid Ahmad in compliance of the order of the Collector Bijnor. Exhibit Ka-4, certified copy of certificate that Rashid Ahmad was contractor of Tube-well department, Bijnor, was filed and was also proved by the defence witness Subhash Chand Sharma. 5. A perusal of the judgments of both the Courts below show that the Courts below held that when raid at the premises of the revisionist was made by the Sub-Divisional Magistrate, Khurshid Ahmad son of Rashid Ahmad was present but he could not produce any proper to show that it was the cement in respect of which allotment order was passed and permit was issued, but DW 1 Subhash Chand Sharma, who was clerk in Tube-well department stated that work of Tube-well department for construction of Nali was going on, therefore, 20 bags and 25 bags cement were issued to him. There was no accommodation of Tube-well department to store the cement, therefore, the contractors used to carry the cement keep and look after it in their own premises. It was also stated that there was no Godown of Tube-well department. The revisionist also stated under Section 313 Cr. P. C. that the cement, which was recovered from his premises was issued by the Tube-well department for construction purposes. If the revisionist would have been present at his residence at the time when raid was made and 28 bags of cement was recovered, it could be said that he could produce the papers. It is not expected from a boy of 17 years that he has knowledge about every transaction and documentary evidence, which is being dealt by his father, who is a contractor. It is not expected from a boy of 17 years that he has knowledge about every transaction and documentary evidence, which is being dealt by his father, who is a contractor. In such circumstances if Khurshid Ahmad could not produce the papers of permit and allotment order before the Sub-Divisional Magistrate at the time of raid, on this ground it cannot be said that the plea of issuing of permit and allotment order was after thought. 6. The learned AGA has submitted that sale is prohibited by Essential Commodities Act read with Cement Control Order. In the instant case there is no evidence to show that the cement was stored for sale purposes because since very beginning it has been pleaded by the revisionist that the cement was stored for construction of Nali of Tube-well department. There is nothing on record to show that the revisionist was involved in purchase and sale of cement in an illegal manner. 7. The learned AGA has also submitted that no paper was produced by the revisionist or his son to show that the 28 bags of cement were the same, which was issued to by the Tube-well department. If a person is punished and his liberty is taken away, the burden is on the prosecution to prove that the recovered article was the subject matter of offence. If the prosecution had to stay that it was not the cement issued by the Tube-well department then the burden was on the prosecution to prove this fact. Therefore, the revisionist cannot be held guilty because 28 bags of cement were not got identified. 8. The evidence that the time when raid was made Khurshid Ahmad had told that papers were with his father, itself shows bonafide conduct on the part of the revisionist and his son. 9. The learned AGA has also submitted that permit of 45 bags cement was issued while only 28 bags cement was recovered. The recovery of part of total bags in respect of which permit was issued was utilized for construction purposes. It is not the case in which recovery was made of bags more than the bags in respect of permit was issued. 10. Subhash Chand Sharma, who was examined as DW 1 by the revisionist stated that was clerk in Tube- well Division, Bijnor, since last 15 years. It is not the case in which recovery was made of bags more than the bags in respect of permit was issued. 10. Subhash Chand Sharma, who was examined as DW 1 by the revisionist stated that was clerk in Tube- well Division, Bijnor, since last 15 years. He knew Rashid Ahmad contractor because he used to visit his office. He knew Rashid Ahmad contractor because he used to visit his office. Construction work of Tube- well Sub- Division Nagina was given to the revisionist, which related to Tube-well No. 566 NG and 628 NG. The order was passed on 1-6-1981, which finds place in the record. One receipt exhibit Kha-1 dated 5-6-1981 through which 20 bags of cement and the work order related to 1-6-1981. It contained signature of Junior Engineer Yogesh Chand Gupta, which was proved by Subhash Chand Sharma, clerk of Tube-well Division, Bijnor. Another receipt dated 1-6- 1981 relating to issue of 25 bags cement Exhibit Kha-2 issued under signature of Yogesh Chand Gupta was also proved. Thus the clerk of the Tube-well department proved the issue of 45 bags of cement. Extract of stock register exhibit Kha-3 was also proved on which there was signature of Yogesh Chand Gupta on 23-6-1981, which was duly proved by the witness. An employee of Tube-well department cannot pick up courage to make false statement. Thus his statement cannot be disbelieved. 11. When the cement, which was recovered by the Sub-Divisional Magistrate from the possession of the revisions was material in respect of which permit was issued by Tube-well department, it was for construction work of the department and not for sale purposes, therefore, charge under Section 3/7 of the Essential Commodities Act read with Rule 3 and 9 (2) of Cement Control Order, 1972, is not proved against the revisionist. 12. The purpose of holding cement should be for sale for wrongful gain. If the material is issued under a permit for a particular purpose and use, the offence under Section 7 of the Essential Commodities Act is not committed. Instead of making specific findings on this point, both the Courts below held the revisionist guilty merely because recovery of 28 bags cement was made from the premises of the revisionist. If the material is issued under a permit for a particular purpose and use, the offence under Section 7 of the Essential Commodities Act is not committed. Instead of making specific findings on this point, both the Courts below held the revisionist guilty merely because recovery of 28 bags cement was made from the premises of the revisionist. Thus the statement of DW 1 Subhash Chand Sharma of Tube-well Division, Bijnor, was not appreciated in true spirit of law of Essential Commodities Act and Cement Control Order. Therefore, the judgments of both the Courts below deserve to be set aside. Hence, revision succeeds. 13. The revision is allowed and judgments of both the Courts below holding Rashid Ahmad guilty under Section 3/7 of the Essential commodities Act and Rule 3 and 9 (2) of the Cement Control Order 1972, are set aside. The accused revisionist is acquitted from the charges under Section 3/7 of the Essential Commodities Act and Rule 3 and 9 (2) of the Cement Control Order, 1972. He is on bail. He need not surrender. Revsion allowed. .