Malik Sharief-Ud-Din, J.
(1) Petitioner was convicted under Section 7(l)(a)(i) of the Essential Commodities Act, 1955 and was sentenced to undergo till the rising of the court and to the payment of fine of Rs. 1500.00 in default of payment of which he was required to undergo simple imprisonment for 4 months Shri J.D. Dhanoka, Metropolitan Magistrate, Delhi by his orders dated 22-11-1983 and 24-11-1983
(2) Aggrieved by this order the petitioner preferred an appeal No. 43 of 1983 which was heard by Shri K.B.Andley, Additional Sessions Judge, Delhi who after setting aside the conviction and sentence recorded by the learned Metropolitan Magistrate, directed the case to be remanded back to the Metropolitan Magistrate for recording fresh evidence and to ascertain the fact asto whether M/s. Kanwar Sain Coal Depot in the name of which the license No. 404 was issued was a partnership firm or whether the petitioner was its sole proprietor. This was done in pursuance of the contention of the appellant before him that the firm M/s. Sain Coal Depot, licensee, was a partnership firm and without the said firm being prosecuted no action could lawfully be taken against the appellant, one of its partners.
(3) Aggrieved by this order of the learned Additional Sessions Judge, Delhi dated 28th May, 1984, the petitioner preferred the present revision petition.
(4) Mr. Mittal, appearing for the petitioner, has frankly admitted that in view of the latest state of law the ground on which the case was remanded to the learned Magistrate is not available to him. Since the ground is not available to him, the order by which the learned Additional Sessions Judge remanded the case to the learned trial Magistrate automatically goes. In this petition, he has, however, assailed the order of the trial court on the ground that petitioner has merely been prosecuted on the basis of clerical mistake and the facts and circumstances of the case would go to reveal that there has not been any means rea.
(5) I may, at this stage, make a reference to the brief facts of the case. The prosecution case is that the petitioner is the sole proprietor of M/s. Kanwar Sain Coal Depot, a retail licensee under Section 3 of the Essential Commodities Act vide Notification No. F. 8(37)/61-F& Cs dated 30th April, 1963. On 20th February, 1980, one Shri U.S. Gupta, Inspector, Food and Supply Enforcement Branch and Shri V.P. Wadhwa, Inspector, inspected the Coal Depot of the petitioner and on scrutiny of the records noticed certain irregularities which are as follows :
1.On 24th January, 1980, the total sale of soft coke was only 1430 Kgs whereas in the Sale Register, Ext. P. I and Stock Register, Ext. P. 2, the total sale was shown as 2430 Kgs. 2. On 2nd February, 1980, the total sale of soft coke was 3800 Kgs. while in the Sale and Stock Registers it had been shown to be 3070 Kgs. 3. On 10th February, 1980, total sale was 5600 Kgs. while in the Sale and Stock Registers this was shown to be 6500 Kgs. 4. On 13th February, 1980 the total sale was 1480 Kgs. but it had been shown as 2400 Kgs. in the Sale and Stock Registers.
(6) It was in this manner that the petitioner had not maintained the records properly and thereby contravened the conditions of the license.
(7) The petitioner was thus prosecuted and convicted for contravention of Section 3(l)(a)(i) of the Essential Commodities Act, 1966. Section 3(l)(a)(i) reads as under:
'FOR requiring persons engaged in the production, supply or distribution, of, or trade and commerce in any essential commodity to maintain and produce for inspection such books, account and records relating to their business and to furnish such information relating thereto, as may be specified in the order.'
(8) It would thus be seen that the prosecution has been launched entirely for non-fulfilment of the condition of license which requires the petitioner to maintain proper records about the sales and distribution of essential commodity.
(9) Mr. Mittal, learned counsel for the petitioner, urged that this is a case of improper maintenance of records and it can't be said to be a case of misappropriation, particulary, in view of the fact that the stocks of the petitioner were not physically verified. His contention is that even the Inspector, U.S. Gupta, who made the inspection has admitted that he noticed three to four clerical mistakes. His contention is that at the time when these mistakes were noted by Mr. U.S. Gupta no contemporaneous record was brought into existence about the mistakes that were detected and that only at the time when the prosecution was launched the kind and quality of the mistakes came to surface. Mr. Mittal further submitted that all that was done by Mr. Gupta, P.W. 1 at the time of inspection was to seize the records such as cash memos, stock and sales register and then sit over the same till 4th April, 1980 when the case was handed^ over to the police.
(10) The case of the petitioner is that his father had died on 8-1-1980 and he was not attending to his business and that these are bona fide errors. Mr. Mittal on this basis further urged that if the court agrees with him that these are bona fide errors attributable to human aspect of errors then the errors per se are not punishable unless it is shown that it is accompanied by menas rea. His contention further is that there is no mistake in the cash memo and the mistake has occurred in the sales and stock registers and that no trader with a guilty mind would leave it there. According to him, if a trader had to keep incorrect records then he would simultaneously prepare fictitious cash memos to support these entries.
(11) MR.B.T. Singh, appearing for the respondent has submitted that there was no question of stock verification, for if, stocks were verified and found short would be a more heinous a crime of misappropriation. His contention is there here in this case the petitioner has been prosecuted merely for contravening of a condition of license.
(12) Mr. B.T. Singh may be correct but then the question that arises for consideration is as to whether bona fide errors per se unaccompanied by guilty mind can be made punishable. The answer to this is provided by a case Nathu Lal v. State of Madhya Pradesh, reported in : 1966CriLJ71 . This was also a case under the Essential Commodities Act and the Supreme Court observed that the contravention in case such as this must be intentional and that is the only ' protection from the harrassment. There must be a guilty mind as an ingredient to offence. The aforesaid observation clearly rules out the punishment of bona fide msitakes. It is, however, difficult to agree with the petitioner's submission that because of the death of his father on 8-1-1980 he was not attending to his business even after 24-1-1980. The mistakes found in the sales and stocks registers are dated 24-1-1980, 2-2-1980, 10-2-1980 and 13-2-1980. One thing is, however, clear that mistakes are in existence. All that remain to be determined is, as to whether this was a deliberate contravention of the condition of license on the part of the petitioner After going through the records and after giving my careful consideration to the facts of the case, I find that the mistakes were bona fide and were not a deliberate act of a guilty mind.
(13) That apart, I have yet another reason to hold a contrary view to those of the courts below. It would be noticed that the inspection takes place on 20-2-1980. Admittedly, no contemporaneous record is brought into existence which he had allegedly detected at the time of inspection. Admittedly, the records remained with him from 22-2-1980 to 4-4-1980 when these were finally sent to the police for registration of the case. Ought me to know as to what he was doing with the seized registers for nearly about 1-1/2 months and why it was not made clear at the time of seizure of the records as to the nature of the mistakes that were noticed The case of the prosecution is not that the cash memos are fictitious. The case of the prosecution is that at 4 places the stock in hand was shown less than what it ought to have been according to the cash memos. Mr. Mittal invited my attention to the relevant entires with a view to indicate that there are interpolation apparent in these entries. I have myself examined these entries with the help of magnifying glass and I have noticed the following:
'IN the entry of 24-1-1980 in both the registers it is said that the sales indicated should have been 1430 Kgs instead of 2430 Kgs. On a close examination it is clear that there is a overwriting and the figure 1 has been converted into '2'. One edge of the figure '4' is also tempered possibly to convey an impression that it is done by the trader. Similarly, in respect of entry dated 2-2-1980 the stocks shown are 3870 Kgs instead of 3880 Kgs which goes to show that it is absolutely a clerical mistake and there are no malafide involved. If malafides were involved it would be more than the actual sale. Here it is less by 10 Kgs. Again in the entry dated 10-2-1980, the stocks shown are 5600 Kgs instead of 6500 Kgs. A close look through magnified glass of all these entries reveals that the figure '4' has been converted into '6' which also goes to show that is was actually 4500 Kgs and this cannot be anything but a bona fide error of computation.'
(14) Keeping in view all the three entries, it is reasonable to hold that entry dated 13-2-1980 was also a bonafide one. Similar is the position with the other register. It is to be borne in mind that these registers remained with the Inspector for about a period of one month and 14 days. The case of the prosecution from the beginning is that the Inspector, Mr. U.S. Gupta, noticed some mistakes. At no stage was it the case of the prosecution that these were over-writing. That goes to strengthen the suggestion of Mr. Mittal, learned counsel for the petitioner, that these documents were interpolated by someone after they were seized from the petitioner. In that view of the piatter, I find that Mr. Mittal in all probability is right in suggesting, in the first place, (bat there are bona fid e mistakes and in the alternative that these overwritings came into existence only after the seizure of records. This could be so particularly in view of the fact that cash memos have been correctly prepared. Prosecution has not explained as to at what stage and by whom these entries came to be interpolated and tempered with. In any case, petitioner is always entitled to the benefit on this court. I fully agree with the understanding of the case by Mr. Mittal and I, accordingly, accept his suggestion and set aside the order of remand passed by the learned Addl. Sessions Judge, dated 26-5-1984. I also set aside the order of the learned Metropolitan Magistrate dated 22-11-1983 and 24-11-1983 convicting and sentencing the petitioner under Section 7(l)(a)(i)ofthe Essential Commodities Act, 1955. The accused is acquitted and case against him is dismissed. Fine, if paid, shall be refunded to the petitioner.