JUDGMENT Hon’ble Anil Kumar Sharma, J.—Challenge in this appeal is to the judgment and order dated 10.4.1990 passed by Sri Mahesh Chandra, the then Special Judge (E.C. Act), Moradabad in E.C. Act Case No. 37 of 1986 whereby the appellant had been convicted for the offence punishable under Section 3/7 EC Act and had been sentenced to undergo rigorous imprisonment for one year and fine of Rs. 2,000/- with default stipulation. 2. Facts germane to the appeal in brief are that in the night of 4/5.2.1986 at about 2:00 a.m. Senior Marketing Inspector V.S. Bhandari alongwith Mahesh Chandra Dixit, Secretary, Krishi Utpadan Mandi Samiti, his other colleagues, Sanitary Inspectors, police sub-inspectors and Constables under the directions and in presence of SDM, Bilari Sri N.K. Singh raided the open shop/godown of Anil Kumar Gupta situated in Mohalla Kaithal Gate, Chandausi who was present at the shop. During inspection 34-bags of common paddy weighing 23.80 quintals, 17-bags of common rice (Kinki) weighing 17 quintals, 8-bags of common rice Arwa about 8 quintals and 3-bags of fine rice Arwa weighing 3 quintals were recovered from his shop. The accused could not produce any licence for dealing in food grains. It was alleged that the accused has contravened clause-3 of the U.P. Food Grains Dealers (Licensing and Restriction on Hoarding) Order 1976 and thereby committed an offence punishable under Section 7 read with Section 3 of the Essential Commodities Act. The recovery memo was prepared at the spot, food grains were given in the Supurdagi of Vipin Kumar son of Badri Prasad Gupta and the accused alongwith FIR, recovery memo etc. was lodged with the police of P. S. Chandausi at 5:00 a.m. on 5.2.1986. On the basis of the written report of Sri Bhandari, a case under Section 3/7 of E.C. Act at Crime No. 79 of 1986 against the accused-appellant was registered, investigation whereof was entrusted to SI Kirpal Singh. The Investigating Officer interrogated the witnesses, visited the place of incident, prepared site plan, obtained sanction for prosecution of the accused and the investigation culminated into the charge-sheet against the accused appellant. 3. The accused denied the prosecution story stating that no rice was recovered from his possession as he is simply running a flour mill and has no concern with the rice which belonged to the tenants. 4. 3. The accused denied the prosecution story stating that no rice was recovered from his possession as he is simply running a flour mill and has no concern with the rice which belonged to the tenants. 4. In support of its case the prosecution has examined the Senior Marketing Inspector V.S. Bhandari PW-1, S. P. Singh Rana PW-2 and S.I. Kirpal Singh PW-3. 5. In his statement under Section 313 Cr.P.C. the accused has again denied the entire prosecution story stating that he has no concern with the shop in question. The house belongs to his mother who had given the rooms on rent. In defence the accused has examined Sanjai Kumar DW-1, Krishna Kumar DW-2, Dushyant Kumar DW-3, his mother Smt. Premwati DW-4 and Udai Veer Singh DW-5. 6. The learned trial Court after hearing the parties’ counsel has convicted the accused-appellant for the offence punishable under Section 3/7 E.C. Act read with clause-3 of the U.P. Food Grains Dealers (Licensing and Restriction on Hoarding) Order 1976 and sentenced him to the period of rigorous imprisonment with fine as stated in para-1 of the judgment above. 7. I have heard the learned counsel for the appellant, learned AGA for the State and perused the original record of the case carefully. 8. The learned counsel for appellant has vehemently argued that the learned trial Court has erred in convicting the accused appellant on the basis of the testimony of the departmental witnesses only which was not corroborated by any independent public witness; that the learned trial Court has not considered the defence evidence adduced on behalf of the accused in correct perspective and lastly, it has been submitted that the statement of the accused recorded under Section 313 Cr.P.C is perfunctory and no incriminating circumstance appearing in the prosecution evidence has been put to him during his statement, which has materially prejudiced the defence of appellant and thus, the appeal is liable to be allowed. 9. Per contra, the learned AGA has supported the impugned judgment and has argued that the house in which the shop/godown was situated belongs to the appellant and he was found in possession and dealing in food grains without any licence and had thereby contravened the control order which is punishable under Section 3/7 E.C. Act. 9. Per contra, the learned AGA has supported the impugned judgment and has argued that the house in which the shop/godown was situated belongs to the appellant and he was found in possession and dealing in food grains without any licence and had thereby contravened the control order which is punishable under Section 3/7 E.C. Act. It has been further submitted that irregularity, if any, in recording the statement of the accused under Section 313 Cr.P.C has not materially prejudiced the defence of the appellant as he had examined five witnesses in his defence and was well aware of the entire prosecution story and the circumstances appearing against him in the evidence. 10. Before we proceed to analyse the evidence on record in order to appreciate the arguments advanced by the counsel for the parties at the bar, it would be appropriate to narrate in brief the statements given by the witnesses of the prosecution and the defence in their examination in chief. 11. Sri V.S. Bhandari PW-1 is the Senior Marketing Inspector who had raided the premises of the accused-appellant situated in Mohalla Kaithal Gate, P.S. Chandausi, District Moradabad in the night of 4/5.2.1986 at about 2:00 a.m.. He has stated that on 5.2.1986 he was posted as Senior Marketing Inspector, Chandausi and at 2:00 a.m. alongwith Mahesh Chandra Dixit, Secretary, Krishi Utpadan Mandi Samiti, Marketing Inspectors S. P. Singh Rana and Ashok Kumar Jain, Sanitary Inspectors-Manpal Singh, VP Sharma and Sri Bijender Singh, Pradeep Kumar, Licensing Inspector, SI Jagat Singh, Constable Naubahar Singh and constable Raj Pal Singh under the directions and in presence of Sri N.K. Singh, SDM, Bilari had raided the shop/godown of the accused appellant which was open. During inspection 34 bags of the common paddy, 17 bags of common rice Kinki, 8 bags of common rice Arwa and 3 bags of fine rice Arwa were recovered and the accused could not produce any licence for dealing in food grains and stated that he did not possess any such licence and he deals in food grains. He has further stated that the recovery memo was prepared at the spot which was signed by all the government officials present at the spot including the SDM, N.K. Singh. The food grains were given in the Supurdagi of Vipin Kumar. The sample of food grains were also taken and one of the sample was given to the accused. He has further stated that the recovery memo was prepared at the spot which was signed by all the government officials present at the spot including the SDM, N.K. Singh. The food grains were given in the Supurdagi of Vipin Kumar. The sample of food grains were also taken and one of the sample was given to the accused. He has proved the weighing memos, recovery memo and the written report as Ext. Ka-1 to Ka-3. These documents alongwith the accused were handed over to the police at 5:00 a.m. on 5.2.1986. 12. Marketing Inspector Sri S.P. Singh Rana has corroborated the testimony of Sri V.S. Bhandari PW-1 on all material points and has also identified his signatures on the documents prepared by Sri Bhandari at the spot stating that the accused did not possess any licence for dealing in food grains. 13. SI Kirpal Singh PW-3 has stated that on 5.2.1986 on the basis of the recovery memo, First Information Report etc. the case was registered by Head Moharrir Harpal Singh and he had prepared the check report and entered the case in general diary. The check report and the copy of the GD had been proved by this witness as Ext. Ka-4 and Ka-5 respectively. He has further stated that the investigation of the case was entrusted to him. He interrogated the complainant, Head Moharrir and the accused at the police station and on 6.2.1986 interrogated the other witnesses, prepared site plan after visiting the spot which has been proved as Ext. Ka-6. He has also testified about other investigatory formalities including the sanction for prosecution of the accused from the District Magistrate, till the submission of the charge-sheet against him. 14. Sanjai Kumar DW-1 has stated that on 21.1.1986 he had purchased 9 bags of common rice from HS Rice Mills, Chandausi and has kept the same in a rented room taken by him from Premwati Devi @ Rs. 30/- per month. He has further stated that he had taken one bag of rice to home and 8 bags of rice remained there. The rice has no concern with accused Anil Kumar who does not deal in food grains and due to misunderstanding the rice has wrongly been seized and an affidavit to this effect was given by him in the Court. 15. The rice has no concern with accused Anil Kumar who does not deal in food grains and due to misunderstanding the rice has wrongly been seized and an affidavit to this effect was given by him in the Court. 15. Pyare Lal DW-2 has stated that on 31.1.1986 he has purchased 8 quintals of common rice from Ganeshi Lal Chandra Bhan and has kept in room No. 2 of the house of Smt. Premwati which had been taken by him on monthly rent of Rs. 21/-. This rice has no concern with accused Anil Kumar and the authorities had wrongly seized the same. He has also submitted an affidavit in the Court and its original is being filed by him today. 16. Dushyant Kumar DW-3 has deposed that on 31.1.1986 he has purchased 8 bags of rice from Ganeshi Lal Chandra Bhan for Rs. 1,360/- and has kept the same in the third room of his mother’s house. This rice has no concern with accused Anil Kumar and he has produced Mandi Samiti’s receipt. He has further submitted that he has filed an application for release of the rice before ADM (Civil Supplies) but it was not returned to him. 17. Smt. Premwati DW-4 has stated that accused Anil Kumar is her son. The house situated at Kaithal Gate, Chandausi belongs to her and two rooms in the house have been given on rent to Krishna Kumar and Sanjai Kumar and two other rooms were in occupation of her other son Dushyant Kumar. The family lived in the remaining portion of the house. She has further stated that Sunil Kumar and Manoj Kumar are her sons and about four years ago they have purchased paddy weighing 2 quintals 5 Kilograms and 1 quintal 50 Kilograms respectively. In her house 3 quintals rice was already kept for household use. This rice has no concern with accused Anil Kumar. In the open Courtyard 30-bags of paddy belonging to Udai Veer were kept which had been brought by him for sale in Mandi. About four years ago at about 11-12 hours few officers came at her house and took the paddy with them although she informed them that it belonged to Udai Veer. She has further stated that her son Sanjai Kumar and Krishna Kumar used to pay rent to her and she has proved her signatures on the rent receipts Ext. About four years ago at about 11-12 hours few officers came at her house and took the paddy with them although she informed them that it belonged to Udai Veer. She has further stated that her son Sanjai Kumar and Krishna Kumar used to pay rent to her and she has proved her signatures on the rent receipts Ext. Kha-1 to Kha-4. 18. Udai Veer Singh DW-5 has stated that about four years ago he has brought 20 qunitals paddy, 50 Kilograms Urad and 1 quintal mustard for sale in a tractor trolley to Chandausi. In the late night near the check post his trolley became out of order and as the Mandi had closed so he kept the paddy at the house of Dushyant Kumar who was known to him from before on the assurance that he would take it back in the morning. Dushyant Kumar thereafter got 20 quintals paddy kept in the house of his mother and the other articles were kept at the Expeller of Ramesh Chandra. Later on, Dushyant Kumar told him in the morning that the paddy had been seized by the authorities and it would be released from the Court. 19. First of all we would take up the issue of improper recording of statement of accused-appellant under Section 313 Cr. P. C. On perusal of the statement of accused-appellant recorded in the case it is quite clear that it is very brief. The trial Court has simply asked the accused that he had heard the depositions of PW-1 to PW-3, what he has to say? The second question is what else he wants to say? The last question is whether he wants to adduce defence? In this connection learned counsel for the accused-appellant has placed reliance on the cases of Ram Avtar v. State of U.P., 2013 (2) ADJ 490 (DB), State of Punjab v. Hari Singh and others, (2009) 2 SCC (Cri) 243, and Inspector of Customs, Akhnoor, Jammu & Kashmir v. Yashpal and another, (2009) 2 SCC (Cri) 593. I have carefully gone through all these reports. In the case of Ram Avtar the judgment of the Court was authored by me as member of the Division Bench. There cannot be any dispute with the principles of law laid down in the above cases with regard to recording of statement of accused under Section 313 Cr. I have carefully gone through all these reports. In the case of Ram Avtar the judgment of the Court was authored by me as member of the Division Bench. There cannot be any dispute with the principles of law laid down in the above cases with regard to recording of statement of accused under Section 313 Cr. P. C. However, the ultimate test in this regard is as to whether by improper or incomplete examination of the accused under Section 313 Cr. P. C. he has been materially prejudiced in his defence. The peculiar facts of the instant case show that the accused was fully conscious and aware about the prosecution case and circumstances appearing against him in the case. This conclusion is fortified from the fact that the recovery of food grains from the premises in question is not disputed to the accused-appellant because in order to explain the recovery he had examined as many as 5-defence witnesses, who have claimed the food grains recovered from the possession of the accused-appellant. Thus, no prejudice had been caused to the appellant in improper recording of his statement under Section 313 Cr. P. C. 20. As regards non-procurement of independent witnesses at the time of search and recovery in question, suffice it to say that the raid has been laid at the premises of the accused-appellant at about 2 a.m. in the night, so possibility of any independent witness of locality available for the raiding party is big zero. Further none of the witnesses of fact examined in the case namely PW-1 and PW-2 have been asked any question on this issue in their cross-examination. The recovery memo and the statement of PW-1 and PW-2 clearly show that the leader of raiding party was the local SDM, who was not only present at the time of raid and recovery but has also signed the recovery memo (Ex. Ka-2). The raiding party consisted of almost senior member of all the departments, who are connected with the sale, purchase, and marketing etc. of the food grains. The accused has not levelled any allegation of prejudice or bias of any Government official against him on any count whatsoever in the cross-examination of PW-1 and PW-2. 21. Ka-2). The raiding party consisted of almost senior member of all the departments, who are connected with the sale, purchase, and marketing etc. of the food grains. The accused has not levelled any allegation of prejudice or bias of any Government official against him on any count whatsoever in the cross-examination of PW-1 and PW-2. 21. Now as regards discarding of defence evidence adduced by five witnesses in support of the case of accused-appellant, I have closely examined the findings recorded by the Court below with reference to the depositions of all five defence witnesses and find that for sound and cogent reasoning the same had been discarded. DW-1 and DW-2 are residents of Chandausi and having their own house, so it was improbable that they would take room on rent for storing few bags of rice from the mother of the accused. DW-3 and DW-4 are respectively the brother and mother of the accused-appellant, so it was not unnatural that they have come forward to save the accused-appellant in the instant case. The trial Court has found the testimony of DW-5 unreliable and rent receipts fabricated in order to save the accused-appellant. The conclusion of the trial Court that - ‘It appears improbable and unbelievable that all the tenants and family members living in the house of Premwati were using that premises for storing rice and paddy and nothing else.’ - is, in the facts and circumstances of the case, quite proper and reasonable. It is important to note here that the accused is a literate person doing business in qasba Chandausi, so if at all the food grains recovered from his possession did not belong to him or they were owned by DW-1 to DW-3 and DW-5, he could have make a note in this regard on the recovery memo Ex. Ka-2 or ‘Taul Takpatti’ Ex. Ka-1. 22. Lastly the learned counsel for the accused-appellant has contended that the incident is more than 28-years’ old, the accused-appellant is now aged about 52-years, he is in jail since 15.3.2014 and he has no other criminal antecedents so the interest of justice would be met if the custodial sentence of one year’s rigorous imprisonment be reduced to period already under gone. In the case of Gyan Singh v. State of U.P., 2000 (40) ACC 851, wherein the conviction of the appellant was maintained under Section 411 PC and considering the fact that the offence was committed about 20 years before and the revision is pending since 1983, the Court did not think it proper to send the accused to jail after such a long time more so when the revisionist has remained in jail at least for a few days after his conviction. The sentence of imprisonment was altered to sentence of imprisonment already undergone and to a fine of Rs. 2000/- with default stipulation. Here it would be useful to refer to the cases of State of U.P. v. Nathu and others, 2014 (1) JIC 744 (All) and Ram Kumar and others v. State of U.P., 2012(2) JIC 294 (All). In the former case in an appeal under Section 378 Cr. P. C. against acquittal of the respondents for the offence punishable under Section 307 IPC, almost with the consent of the counsel for the accused-respondents, the impugned judgment acquitting the respondents was set aside and the accused were convicted under Section 324 IPC and sentenced to period of imprisonment already under gone and fine of Rs. 20,000/- each. The Court considered the fact that the incident had taken place about 32 years ago so no useful purpose would be served by sending the respondents to jail. In the later case, the accused were found guilty for the offence punishable under Section 395/412 IPC and were sentenced to seven years RI under Section 395 IPC and and 3-years’ RI under Section 412 IPC. One of the appellants was found to be about 90-years’ old and considering the fact that the incident took place more than thirty three years ago, the sentence of the accused persons was reduced to already under gone. Thus, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if after maintaining conviction of the accused-appellant under Section 3/7 E.C. Act, the sentence of one year’s RI be altered to period of already under gone, which is about five months without disturbing the fine imposed by the learned trial Court. 23. In view of afore-stated reasons, the appeal is partly allowed. The conviction of the appellant under Section 3/7 E.C. Act is confirmed. 23. In view of afore-stated reasons, the appeal is partly allowed. The conviction of the appellant under Section 3/7 E.C. Act is confirmed. Sentence of one year’s R.I. is substituted by the period of imprisonment already under gone by him in this case. The imposition of fine of Rs. 2,000/- is affirmed. The appellant is in judicial custody. He should be released from custody after payment of fine. 24. Let copy of the judgment be transmitted to the Court concerned for compliance immediately for ensuring compliance, which should be communicated to the Court within 8-weeks. —————