JUDGMENT P.S. Gopinathan, J. 1. The Sub Inspector of Police, Punalur, who was examined as PW4, in C.C.No.116/2001 on the file of the Judicial Magistrate of the First Class-III, Punalur prosecuted the revision petitioner accusing offence under Section 4 read with 21(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (hear-in-after referred to as 'the Act'), with an allegation that at 8.30 A.M. on 13/10/2000 the revision petitioners were found transporting sand, collected from a ghat from where the sand collection was prohibited, in a lorry bearing Reg.No.KL-10-A/349 while PW4 moving on petrol duty along Kayamkulam -Punallur public road at Nellippalli. 2. Revision petitioners pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution PWs 1 to 4 were examined. Exhibits P1 and P2 were marked. After closing the evidence for the prosecution, revision petitioners were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They denied the incriminating evidence and further advanced a case that they were falsely implicated. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, they were convicted and sentenced to rigorous imprisonment for three months. 3. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.227/2003 before the Sessions Judge, Kollam, who, by the impugned judgment dated 5/1/2006, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred. 4. I have heard Adv. Sri. B. Gopakumar, the learned counsel appearing for the revision petitioners and Smt. Sareena George, the learned Government Pleader. Perused the judgments of the courts below as well as the evidence on record. 5. By the allegations in the final report the only offending act is collection/mining of sand from a prohibited ghat. It is crucial to note that the name of the ghat is also not mentioned. There is no whisper in the final report that the sand was transported without any pass or permit. For a correct appraisal, a reading of the final report would be relevant. Report reads as follows: “MALAYALAM” There is no whisper in the final report that the revision petitioners had no valid pass or permit for transporting the sand. There is no whisper in the final report that the sand was transported without any pass or permit. For a correct appraisal, a reading of the final report would be relevant. Report reads as follows: “MALAYALAM” There is no whisper in the final report that the revision petitioners had no valid pass or permit for transporting the sand. But in the Box, PW4 would depose that the revision petitioners had no valid permit or pass for transporting the sand. Going by the evidence of PW4, I find that the evidence of PW4 cannot be taken in its face value because, he, who is the detecting and investigating officer, had not made any investigation with the licensing or permit issuing authority as to whether any licence was issued in respect of the above lorry for transporting the sand and there is no such allegation in the final report. In a summons case, an accused is not answerable to the evidence regarding any offence unless there is no such allegation in the final report/complaint, the particulars of which were read over and explained. In a warrant case, the accused is not answerable to any evidence if there is no allegation in the charge. 6. PW1, the Village Officer, Punaloor was examined to bring on record that the sand was collected from a ghat from where the mining was prohibited by the District Collector. As mentioned above, the name of the ghat is not mentioned in the final report. The case of the prosecution, as it appears from evidence, is that the sand transported was collected from a ghat called Mukkadavu. According to PW1, the above ghat is within the territorial limits of Valakkod village. However, PW1 would depose that the District Collector had prohibited mining of the sand from Mukkadavu. That evidence of PW1 also cannot be taken in its face value because no order issued by the Collector prohibiting the mining of the sand from Mukkadavu is produced. The prosecution has not examined the Village Officer of Valakkod village within whose limit the Mukkadavu is situated. Failure to examine the concerned Village Officer is also not explained by the prosecution. Therefore, I find it is not safe to rely upon the evidence of PW1 regarding the prohibitory order in respect of ghat in another village. The prosecution has not examined the Village Officer of Valakkod village within whose limit the Mukkadavu is situated. Failure to examine the concerned Village Officer is also not explained by the prosecution. Therefore, I find it is not safe to rely upon the evidence of PW1 regarding the prohibitory order in respect of ghat in another village. Adding to that, if there was any prohibitory order by the Collector, there would be written order. So long as the copy of that order is not produced, no reliance can be given to the oral testimony of PW1. It goes without saying that the allegation in the charge sheet that the sand was collected from a ghat from where the mining is prohibited is also not established. 7. In the final report, which is quoted above, the allegation is that the revision petitioners together were driving the lorry. But when PW4 was examined, he would depose that the first revision petitioner was driving the lorry. What was the role of the 2nd revision petitioner is not mentioned in the chief examination. In cross-examination PW4 would depose that the 2nd revision petitioner was the registered owner of the lorry. That evidence of PW4 also cannot be believed because firstly there is no allegation in the final report. Secondly, there is no whisper in his evidence that he had seen the registration certificate of the lorry or that he had made any investigation with the registering authority to ascertain as to in whose name the vehicle was registered. So the implication of the 2nd revision petitioner is also without any proper investigation or any evidence. 8. As I mentioned earlier there is no investigation made by PW4 as to whether any permit or pass was issued by the competent authority for transporting or mining the sand. The learned Government pleader would submit that it was for the revision petitioners to establish that they had been transporting the sand with valid permit. I am not inclined to accept the argument because no burden of proof can be put upon the accused to establish that they had valid pass or permit for transporting the sand. The Act doesn't envisage any presumption in favour of the prosecution or against the accused in a prosecution under the Act. I am not inclined to accept the argument because no burden of proof can be put upon the accused to establish that they had valid pass or permit for transporting the sand. The Act doesn't envisage any presumption in favour of the prosecution or against the accused in a prosecution under the Act. When the prosecution alleges that the sand was mined or transported in violation of the statutory provisions, it is for the investigating officer to investigate and establish by reliable evidence that the mining and transport of the sand was without any valid permit. Here the evidence of PW4 would show that no such investigation was conducted. So long as there is no investigation or evidence regarding the pass or permit, presumption is in favour of the innocence of the accused. Therefore, I find that the prosecution had miserably failed to establish the offences alleged. Conviction and sentence under challenge are not sustainable. In the result, this revision petition is allowed. While setting aside the conviction and the sentence under challenge, the revision petitioner would stand acquitted and set at liberty. The bail bond, if any, executed by them shall stand cancelled.