# Prakash v. State

- **Citation:** (2025) 9 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-18
- **Case number:** Criminal Appeal No. 1219 of 1987
- **Bench:** Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-v-state-53952
- **Pages:** 7

## Headnote

Commodities Act, 1955, for alleged violation of
Clause 3 of the U.P. Foodgrains Dealers' (Licensing
and Restriction on Hoarding) Order, 1976, could
be sustained when the search and seizure was
conducted without complying with S. 100 Cr.P.C.
and when the defence evidence created doubt
regarding possession of wheat bags.
Headnotes
Essential Commodities Act, 1955 - S. 7 read
with S. 3 - Violation of Clause 3 of U.P.
Foodgrains Dealers' Order, 1976 - Search
and seizure must comply with S. 100 Cr.P.C.
- Prosecution must establish proper search,
seizure, place of recovery, and compliance
with statutory requirements - Failure to call
independent witnesses and absence of
place-specific details in recovery memo -
Creates doubt and causes prejudice to
accused - Benefit of doubt warranted.
Criminal Procedure Code, 1973 - S. 100 -
Mandatory procedural safeguards in search
and seizure - S. 294 - Admission of
documents - it cannot fill the gap left by the
search party.
Evidence - Defence witnesses - Failure of
Trial Court to appreciate defence evidence -
Defence witnesses supported appellant's
case that wheat bags were kept outside the
shop by farmers; Trial Court rejected
defence only on ground that witnesses did
not know accused - Held incorrect as per
material on record.
Held: This non-compliance of S. 100 Cr.P.C.
creates doubt on the prosecution story and
prejudice the right of accused-appellant - The
Trial Court has failed to appreciate that the
prosecution has failed to establish the place
from where the bags were recovered, as it is
not mentioned in the memo of search and
seizure, which is necessary under S. 100 of
Cr.P.C. - If the documents prepared by the
investigating officer is considered to be admitted
in evidence, it cannot fill the gap left by the
search party - This Court is of the view that
prosecution has failed to prove its case. The
accused-appellant is entitled to the benefit of
doubt - The criminal appeal succeeds and is
allowed. (Paras 22,22,24,27,28,29) (E-7)

Case Law Cited
Ranjan Kumar Chadha v. State of Himachal
Pradesh, 2023 SCC OnLine SC 1262; Saddiq
v.
State
of
U.P.,
1981
Cr.L.J.
379
(Allahabad)

List of Acts
Essential Commodities Act, 1955; U.P.
Foodgrains Dealers' (Licensing and Restriction
on Hoarding) Order, 1976; Code of Criminal
Procedure, 1973.
9 All. Prakash Vs. State
659
List of Keywords
Search
And
Seizure;
Deeming
Provision;
Reverse Burden; Independent and Respectable
Inhabitants; Memo of Recovery; Supurdagigar;
Non-Compliance; Benefit of Doubt; Planted
Witnesses.

Case Arising From
CRIMINAL APPELLATE JURIDICTION:
Criminal Appeal arising out of judgment and
sentence dated 10.04.1987 passed by Special
Judge (Economic Offences), Agra in Criminal
Case No. 3 of 1985 (State v. Prakash) under
Sections 7/3 of the Essential Commodities Act.

Appearances for Parties
Advs. for the Appellant:
V.K. Sharma
Siddarth Jaiswal
Advs. for the Respondent:
A.G.A. (for the State)

## Text

658 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient compliance of Sub-rule (3) of
Rule 4 of the Rules,1994 specially
considering the circumstance that Covid
pandemic was there in full swing in the
year 2021 and certain restrictions were
imposed by this Court regarding the
presence of litigant and counsel in the court
proceedings.

32. In my view, no illegality has been
committed by the court below in rejecting
the application filed by the petitioner under
Order 7 Rule 11 C.P.C. for rejection of the
election petition.

33. The writ petition fails and is
accordingly, dismissed.
----------
(2025) 9 ILRA 658
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2025

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 1219 of 1987

Prakash ...Petitioner
Versus
State ...Respondent

Counsel for the Petitioner:
V.K. Sharma, Siddarth Jaiswal

Counsel for the Respondent:
A.G.A.

Issue for Consideration
Matter pertains to whether the conviction of the
appellant under S. 7 r.w. S. 3 of the Essential
Commodities Act, 1955, for alleged violation of
Clause 3 of the U.P. Foodgrains Dealers' (Licensing
and Restriction on Hoarding) Order, 1976, could
be sustained when the search and seizure was
conducted without complying with S. 100 Cr.P.C.
and when the defence evidence created doubt
regarding possession of wheat bags.
Headnotes
Essential Commodities Act, 1955 - S. 7 read
with S. 3 - Violation of Clause 3 of U.P.
Foodgrains Dealers' Order, 1976 - Search
and seizure must comply with S. 100 Cr.P.C.
- Prosecution must establish proper search,
seizure, place of recovery, and compliance
with statutory requirements - Failure to call
independent witnesses and absence of
place-specific details in recovery memo -
Creates doubt and causes prejudice to
accused - Benefit of doubt warranted.
Criminal Procedure Code, 1973 - S. 100 -
Mandatory procedural safeguards in search
and seizure - S. 294 - Admission of
documents - it cannot fill the gap left by the
search party.
Evidence - Defence witnesses - Failure of
Trial Court to appreciate defence evidence -
Defence witnesses supported appellant's
case that wheat bags were kept outside the
shop by farmers; Trial Court rejected
defence only on ground that witnesses did
not know accused - Held incorrect as per
material on record.
Held: This non-compliance of S. 100 Cr.P.C.
creates doubt on the prosecution story and
prejudice the right of accused-appellant - The
Trial Court has failed to appreciate that the
prosecution has failed to establish the place
from where the bags were recovered, as it is
not mentioned in the memo of search and
seizure, which is necessary under S. 100 of
Cr.P.C. - If the documents prepared by the
investigating officer is considered to be admitted
in evidence, it cannot fill the gap left by the
search party - This Court is of the view that
prosecution has failed to prove its case. The
accused-appellant is entitled to the benefit of
doubt - The criminal appeal succeeds and is
allowed. (Paras 22,22,24,27,28,29) (E-7)

Case Law Cited
Ranjan Kumar Chadha v. State of Himachal
Pradesh, 2023 SCC OnLine SC 1262; Saddiq
v.
State
of
U.P.,
1981
Cr.L.J.
379
(Allahabad)

List of Acts
Essential Commodities Act, 1955; U.P.
Foodgrains Dealers' (Licensing and Restriction
on Hoarding) Order, 1976; Code of Criminal
Procedure, 1973.
9 All. Prakash Vs. State
659
List of Keywords
Search
And
Seizure;
Deeming
Provision;
Reverse Burden; Independent and Respectable
Inhabitants; Memo of Recovery; Supurdagigar;
Non-Compliance; Benefit of Doubt; Planted
Witnesses.

Case Arising From
CRIMINAL APPELLATE JURIDICTION:
Criminal Appeal arising out of judgment and
sentence dated 10.04.1987 passed by Special
Judge (Economic Offences), Agra in Criminal
Case No. 3 of 1985 (State v. Prakash) under
Sections 7/3 of the Essential Commodities Act.

Appearances for Parties
Advs. for the Appellant:
V.K. Sharma
Siddarth Jaiswal
Advs. for the Respondent:
A.G.A. (for the State)

(Delivered by Hon'ble Avnish Saxena, J.)

1. This case is listed under heading,
"Supreme Court in Model Action Plan
Cases-more than 30 years' old, not be
adjourned."

2. Heard Sri Siddharth Jaiswal, learned
counsel
for
the
appellant
and
Sri
Chandrabadan, learned A.G.A. for the
State.

3. Present criminal appeal is preferred
against judgment and sentence dated
10.04.1987 passed by Special Judge
(Economic Offences), Agra (the Sessions
Court) in Criminal Case No.3 of 1985 (
State Versus Prakash) for offence under
Sections 7 read with Section 3 of Essential
Commodities Act, 1955, Police Station
Hari Parvat, Agra, whereby the Trial Court
has punished the accused-appellant for
rigorous imprisonment of six months for
violating Clause 3 of U.P. Foodgrains
Dealers' (Licensing and Restriction on
Hoarding) Order, 1976, along with fine of
Rs.1000/-and in default whereof directed
rigorous imprisonment of one month.

4. The prosecution case as disclosed
from F.I.R. dated 20.10.1983 lodged at
17:35 hours by Sri Asha Ram Prabal, ARO,
Lohamandi, Agra, registered as Case Crime
No.630 of 1983 reveals that on 20.10.1983
at 10 a.m., the informant along with
Inspectors and Secretary,Krishi Utpadan
Mandi Samiti, Agra, inspected the Galla
Mandi, Ghatia Azam Khan Agra, where he
had inspected the shop of the accusedappellant and found therein 100 bags of
wheat weighing 100 quintals. On asking for
license and the documents, he failed to
show the same. The wheat was seized and
gave in possession of M/s Ramesh Chand
Naresh Chand.

5. Charge-sheet was submitted after
investigation.
The
prosecution
has
produced PW-1 Asha Ram Prabal, ARO.
The counsel for the appellant-accused, who
was defending the trial has not disputed the
genuineness of the prosecution documents,
Exhibits
Ka-3
to
8,
which
led
to
dispensation of formal proof of those
documents.
The
prosecution,
thus
concluded.

6. The appellant-accused has produced
two witnesses, DW-1 Suresh Chand and
DW-2 Uda Ram.

7. The Trial Court has found that the
prosecution has proved its case. The
defence witnesses are not reliable, as they
did not know the appellant-accused, but
despite that they have allegedly kept their
bags of wheat in his shop. The Trial Court
further considered that if the bags of wheat
is kept outside the shop, the same cannot be
believed. Further held that the appellant
was a retailer who could keep only 25 bags
660 INDIAN LAW REPORTS ALLAHABAD SERIES
of wheat. He has no document to show 100
bags in his shop and therefore, held that
presumption
under
Section
10-C
of
Essential Commodities Act got attracted.
Hence,
convicted
and
sentenced
the
appellant-accused as above.

8. Sri Siddharth Jaiswal, learned
counsel for the appellant has submitted that
100 bags of wheat was recovered in front
of the shop of the accused-appellant and
not
inside
the
shop.
There
is
no
independent
witness
of
seizure.
The
prosecution failed to prove the case and
incorrect presumption is drawn against the
accused-appellant. It is lastly submitted that
appellant is more than 80 years of age.
Therefore, he prayed that appeal be allowed
and judgment of conviction and sentence
be set aside.

9. Per contra, Sri Chandrabhan, learned
A.G.A. submits that the conviction has
rightly been recorded by the Trial Judge. The
prosecution has proved its case beyond the
shadow of doubt. The documents have been
admitted by the counsel for the accusedappellant, which attracts Section 294 Cr.P.C.,
as the genuineness of document is not
disputed. The Trial Judge has considered the
deposition of defence witness and found them
as planted witnesses. The bags of wheat had
been recovered from the shop of the
appellant, which has been ascertained in
evidence. The appellant has flouted the
condition of his license and found hoarded
the wheat in his shop in contravention to the
license. Hence, the appellant stood rightly
convicted and sentenced. The appeal does not
have any ground, which is liable to be
dismissed.

10. I have perused entire record,
evidence and considered rival submissions
made by the parties.

11. The Trial Court has recorded
conviction under Section 7 of Essential
Commodities Act, as the accused-appellant
has violated clause 3 of U.P. Foodgrains
Dealers' (Licensing and Restriction on
Hoarding) Order, 1976 issued in exercise of
powers under Section 3 of the Essential
Commodities Act, 1955. The provision is
reproduced hereinbelow.

"3. Licensing of Dealers and
commission agents.-- (1) No person shall
carry on business as a dealer or
commission agent except under and in
accordance with the terms and conditions
of a license issued in this behalf by the
licensing authority.

(2) For the purpose of this clause,
any person who stores any foodgrains in
quantity of five quintals or more of any one
of the foodgrains or twenty-five quintals of
all foodgrains taken together at any one
time shall, unless the contrary is proved,
be deemed to store the foodgrains for the
purpose of sale.

12. Sub-clause
(2)
provides
for
keeping of foodgrain, more than the
required quantity. The proviso attracted to
the sub-clause is the deeming provision that
the foodgrain stored is for the purpose of
sale. There is a reverse burden on the part
of the licensee to be discharged, if the
prosecution proves that search and seizure
has been made in accordance with Clause
14 of the Order, 1976. The provision is
reproduced underneath:

14. Power of entry, search,
seizure, etc.

(1) Any Enforcement Officer or
the Licensing Authority or any other officer
authorised by the State Government in this
behalf may, with such assistance, if any, as
he thinks fit
9 All. Prakash Vs. State
661

(a) enter, inspect or break open
and search any place or premises, vehicle
or vessel used or believed to be used for the
purchase, sale or storage for sale of any of
the Scheduled Commodities or in which he
has
reason
to
believe
that
any
contravention of the provisions of this
Order or the conditions of any licence
issued thereunder, has been or is being or
is about to be committed;

(b) require the owner, occupier
or any other person incharge of any place,
premises, vehicle or vessel in which he has
reason to believe that any contravention of
the provisions of this Order, or of the
conditions of any licence issued thereunder
has been or is being, or is about to be
committed, to produce any book, accounts
or other documents showing transactions
relating to such contraventions;

(c) take or cause to be taken, extract
from, or copies of any documents showing
transactions relating to such contraventions
which are produced before him;

(d) search, seize and remove stocks
of Scheduled Commodities and the animals,
vehicles, vessels or other conveyances used in
the
said
Scheduled
Commodities
in
contravention of the provisions of this Order,
or of the conditions of the licence issued
thereunder and thereafter take or authorise
the taking of of all measures necessary for
securing the production of stocks of
Scheduled Commodities and the animals,
vehicles, vessels or other conveyance so
seized in a court and for their safe custody
pending such production.

(2) The provisions of the Code of
Criminal Procedure, 1973 (Act No. 2 of
1974) relating to search and seizure shall,
so far as may be, apply to the searches and
seizures made under this clause."

13. Sub-clause (2) provides that the
provision of Section 100 Cr.P.C. relating to
search and seizure shall be made applicable
under this clause.

14. Therefore, the Trial Court has to
look into the prosecution evidence that
search and seizure of seized 100 bags of
wheat has been carried out within the
provisions of law.

15. The prosecution has produced only
one prosecution witness, the Officer who
has seized the bags, as PW-1 Asha Ram
Prabhal, ARO, Lohamandi, Agra. He has
given statement on oath that on 20.10.1983,
he along with Secretary, Krishi Utpadan
Mandi Samiti, Agra and Food Inspector has
inspected the shop of appellant and found
100 bags of wheat weighed 100 quintals.
The appellant on demand failed to produce
license to keep the bags of wheat. He has
further stated that he has handed over the
bags of wheat to M/S Ramesh Chand
Naresh Kumar Firm. The memo of
recovery of wheat and handing over
certificate proved by him is Ext. Ka-1 and
Ka-2, respectively.

16.
Ext.Ka-1
merely
shows
the
number of bag and its weight. It does not
disclose the details of search conducted and
the place from where the bags have been
recovered, whereas Ext. Ka-2 is the memo
of handing over the bags to M/s Ramesh
Chand Naresh Kumar (Supurdagigar).

17. According to the prosecution, the
search and seizure has been made from inside
the shop. Though the appellant has defence
that the bags of wheat were kept by DW-1
Suresh Chand and DW-2 Udaram in front of
his shop, which belongs to them and the
appellant has no concern with the bags.

18. This Court will look into the
defence of the appellant after considering
662 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution evidence. Presently, it is to be
seen whether the prosecution has rightly
carried out the search and seizure as per
Section 100 of Cr.P.C.

19. Section 100 Cr.P.C. provides,
'Person Incharge of closed places to allow
search'.
The
relevant
provisions
are
reiterated underneath:

"....

(4) Before making a search
under this Chapter, the officer or other
person about to make it shall call upon
two or more independent and respectable
inhabitants of the locality in which the
place to be searched is situate or of any
other locality if no such inhabitant of the
said locality is available or is willing to be
a witness to the search, to attend and
witness the search and may issue an order
in writing to them or any of them so to do.

(5) The search shall be made in
their presence, and a list of all things
seized in the course of such search and of
the places in which they are respectively
found shall be prepared by such officer or
other
person
and
signed
by
such
witnesses; but no person witnessing a
search under this section shall be required
to attend the Court as a witness of the
search unless specially summoned by it.

(6) The occupant of the place
searched, or some person in his behalf,
shall, in every instance, be permitted to
attend during the search, and a copy of the
list prepared under this section, signed by
the said witnesses, shall be delivered to
such occupant or person.

....."

20. Sub-section (4) provides a duty on
the Officer for calling upon two or more
independent and respectable inhabitants of
the locality, where the place to be searched
is situated. It is not the prosecution case
that the independent witnesses were being
called. Sub-section (5) and (6) further
provide for a list of items seized and the
place from where they are found and the
copy of it shall be provided to the person
and signed by the officers and other
persons including the witnesses. The Trial
Court has not recorded any finding on the
point of compliance of Section 100 Cr.PC.

21. In the case of Ranjan Kumar
Chadha v. State of Himachal Pradesh
reported in [2023 SCC OnLine SC 1262]
the Supreme Court held that if there is noncompliance of Section 100 or 165 that itself
cannot be a ground for rejecting the
prosecution case outright. The effect of
such non-compliance will have a bearing
on appreciation of evidence of official
witnesses and other material depending
upon the facts and circumstances of each
case.

22. This non-compliance of Section
100
Cr.P.C.
creates
doubt
on
the
prosecution story and prejudice the right of
accused-appellant. There is nothing on
record to show that the prosecution has
proved the contravention of Clause 3 of
Order, 1976, to carry out the search by the
raiding party, as the terms of license,
provided under Clause 5 of the Order, 1976
has not been discussed. The restrictions on
possession of foodgrains is provided under
Clause 11 of Order.

23. The appellant to absolve himself
from the liability of deeming provision of
Clause 3 has produced two defence
witnesses before the Court. It is also the
case of the appellant that the bags of wheat
were not stored inside the shop, but were
stored outside the shop and he has no
concern with the alleged bags. Two
9 All. Prakash Vs. State
663
witnesses DW-1 Suresh Chand and DW-2
Uda Ram have deposed before the Trial
Court that they are the farmers having
agricultural field and the bags of wheat
have been kept by them in front of the
shop. After keeping the bags for some time
they merely went in the market to know the
price that could be fetched. Both the
witnesses have provided their revenue
record to show that they were farmers.
DW-2 Udaram has also given Nagar
Mahapalika Chungi receipt of taking the
foodgrain to the Mandi. They have also
deposed before the Trial Court that for the
release of their seized bags of wheat they
have moved application before the District
Magistrate.

24. The Trial Court has not considered
the statement of these two defence
witnesses, as trustworthy, because they did
not know the appellant. Therefore, the Trial
Court was of the opinion that keeping the
bags inside the shop of the appellant
without knowing him is hard to be
believed. To my opinion is not a correct
analysis of statement of defence witnesses,
who have stated that they have kept the
bags outside the shop and went to know the
price of wheat in the market, in such
circumstances, their knowing the appellantaccused is of no importance. Moreover, the
prosecution has not disclosed in the search
and seizure memo about the place where
the bags were kept.

25. The Trial Court has failed to
appreciate that the prosecution has failed to
establish the place from where the bags
were recovered, as it is not mentioned in
the memo of search and seizure, which is
necessary under Section 100 of Cr.P.C.

26 Learned counsel for the accused
has admitted the documents invoking
Section 294(3) Cr.P.C. The documents
which have been admitted to be genuine by
the counsel for the accused-appellant are
the
documents
pertaining
to
police
investigation. On this point, a Division
Bench of this Court in Saddiq Versus
State of U.P., reported in 1981 Cr.L.J.
379, Alld. has held:

"If
the
prosecution
or
the
accused does not dispute the genuineness
of a document filed by the opposite party
under sub-section (1) of Section 294 Cr.
P.C. it amounts to an admission that the
entire document is true or correct. It means
that the document has been signed by the
person by whom it purports to be signed
and its contents are correct. It does not
only amount to the admission of it being
signed by the person by whom it purports
to be signed but also implies the admission
of the correctness of its contents. Such a
document may be read in evidence under
sub-section (3) of Section 294 Cr. P.C.
Neither the signature nor the correctness of
the contents need be proved by the
prosecution or the accused by examining
its signatory as it is admitted to be true or
correct."

27. If the documents prepared by the
investigating officer is considered to be
admitted in evidence, it cannot fill the gap
left by the search party.

28. Therefore, considering the entire
gamut of the facts, this Court is of the view
that prosecution has failed to prove its case.
The Trial Court has not considered
evidence produced by the prosecution and
defence in right perspective, but merely
considered the statement of prosecution
witness and presumed the guilt of the
accused-appellant, which has been duly
discharged by the appellant by producing
664 INDIAN LAW REPORTS ALLAHABAD SERIES
the defence witnesses. In the facts and
circumstances of the present case, this
Court, therefore, is of the opinion that the
accused-appellant is entitled to the benefit
of doubt.

29. The criminal appeal succeeds and
is allowed.

30. Accused-appellant Prakash son of
Achal Bahadur, is on bail, therefore, his
bail bonds are discharged. He need not
surrender. He shall file personal bond and
surety bonds in compliance of Section
437A Cr.P.C. to the satisfaction of Trial
Court within a period of four weeks.

31. The office is directed to transmit
the lower court record along with a copy of
the judgment to the Trial Court for ensuring
compliance.
----------
(2025) 9 ILRA 664
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Criminal Appeal No. 1876 of 1983

Laxman ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
G.P. Dixit, Prakash Chandra Srivastava,
Vishnu Prakash

Counsel for the Respondents:
A.G.A.

Issue for Consideration
Whether the High Court can recall its earlier
judgment dated 17.03.2025 confirming the
conviction of the appellant, on the ground that
the judgment was passed "in the absence of the
appellant, treating him as an absconder" and
whether such recall is maintainable under S. 528
BNSS (corresponding S. 482 Cr.P.C.), in view of
the bar under S. 362 Cr.P.C. (S. 403 of BNSS).

Headnotes
Code of Criminal Procedure, 1973 - Recall
of Judgment - Scope of S. 528 BNSS / S.
482 Cr.P.C. - Bar under S. 362 Cr.P.C. / S.
403 BNSS -Absconding Accused - Appeal
Heard on Merits in Absence - Consistent
with law in Surya Baksh Singh and Bani
Singh - Court may decide appeal on merits
when
appellant
deliberately
avoids
appearance
-
Case
Distinguished
-
Dhananjay Rai inapplicable since appeal
there was dismissed without going into
merits; here the appeal was decided on
merits - High Court cannot entertain a
recall or review application under Section
482 of Cr.P.C. to re-examine or modify its
own judgment on merits after it has been
signed - Inherent power can be used only
to prevent an abuse of the process of the
Court or to secure the ends of justice, but
it does not extend to reviewing a final
judgment except for rectifying minor
errors.
Held: The appeal had already been decided on
merits, after full "re-appreciating and reevaluating the evidence on record" - ratio of
Dhananjay Rai is inapplicable - The appellant
had absconded for 30 years, failed to appear
despite several opportunities were given to the
applicant/appellant, and therefore the Court
rightly proceeded to decide the appeal on merits
- Recall under S. 528 BNSS / S. 482 Cr.P.C. is
not maintainable, as S. 362 Cr.P.C. (S. 403
BNSS) "explicitly prohibits" review/alteration of
a signed judgment, except to correct a clerical
or
arithmetical
error
-
Supreme
Court
precedents affirm that criminal courts become
functus officio after signing the judgment, and
inherent powers cannot circumvent S. 362
Cr.P.C. - Consequently, "this recall application
along with delay condonation application is
dismissed. (Paras 10,11,12,13,14,15) (E-7)

Case Law Cited
Dhananjay Rai @ Guddu Rai vs. State of Bihar,
2022 LiveLaw (SC) 597; Surya Baksh Singh