JUDGMENT : J.K. Mohanty, J. - Petitioner has been convicted u/s 7 of the Essential Commodities Act for contravention of Sub-clause (3) of Clause 14 of the Orissa Cement Control Order, 1973 (hereinafter referred to as the Order, 1973) by the S.D.J.M., Dharamgarh and was sentenced to R.I. for three months and to pay a fine of Rs. 200/-, in default to R.I. for one month more. An appeal preferred before the Addl. Sessions Judge, Bhawanipatna against the aforesaid order of conviction and sentence has also been dismissed. The Petitioner has come up to this Court against the order of conviction and sentence passed against him. 2. The case against the Petitioner is that on 16-3-1975 the Petitioner was bringing 20 bags of cement from Bhawanipatna to Junagarh by a tractor bearing No. ORH 1012. He was caught by the Inspector of Supplies (P.W. 2), Junagarh and some other supply staff near the check gate of Junagarh The Petitioner could not produce any permit for transporting the cement from Bhawanipatna to Junagarh. So he was prosecuted for contravention of Sub-clause (3) of Clause 14 of the Order, 1973. 3. Mr. Rath, learned Counsel appearing for the Petitioner, submitted that assuming for the sake of argument that the Petitioner was transporting cement, there is no evidence whatsoever on behalf of the prosecution to establish that the cement that he was transporting was of the prohibited variety. Clause (2)(a) defined 'cement' which is as follows: 'Cement' means any variety of cement manufactured in India, and includes portland pozzalana cement, oil well cement, water-proof (Hydrophobic) cement, blast furnace slag cement, rapid hardening cement and low heat cement, but does not include white and coloured cement (other than grey portland cement). Sub-clause (3) of Clause 14 of the Order, 1973 is also quoted for reference: No person shall move or cause to be moved any stock of cement from one place to another inside the' State except under a general or specified direction from the Controller or any other officer authorised by him. Admittedly the Petitioner bad no permit with him for transporting 20 bags of cement. The question for determination is whether it has been proved to be cement as defined under Clause 2(a) of the Order, 1973. 4. P.W. 1 is the Inspector of Supplies. Admittedly the Petitioner bad no permit with him for transporting 20 bags of cement. The question for determination is whether it has been proved to be cement as defined under Clause 2(a) of the Order, 1973. 4. P.W. 1 is the Inspector of Supplies. He has stated: The Inspector S.S. Pradhan did not show me any sample of cement from the seized bag. P.W. 2 the Inspector Supplies, Junagarh has stated: There was only cement in the tractor. It was not necessary to open the bag. All the bags are in gunny bags, properly stitched. P.W. 3 has stated: I did not personally verify the cement bags. The cement was white in colour. P.W. 4 has stated: I had not opened the cement from bags. I do not know if cement has got many colours, But I found that the bags contain cement. P.W. 5 has stated that the Inspector has not opened the bags for verification. P.W. 6 has not stated about the nature of the cement. So from the above evidence it appears that the prosecution has not proved that the cement was of the variety which was prohibited under Clause 2(a) of the Order, 1973. Rather, the evidence of P.W. 3 shows that the cement was of white colour. It may be mentioned here that the prosecution has not produced the cement bags before the learned Magistrate nor any sample from the bags was produced for inspection of the Court. In the above circumstances, Mr. Rath submits that the Petitioner is not liable to be prosecuted unless it IS proved that cement as defined under Clause 2(a) of the Order, 1973 was seized. There appears to be substance in the argument of Mr. Rath. The prosecution has not taken care to prove that the cement that was being transported by the Petitioner was of prohibited variety. Rather, the evidence of P.W. 3 goes to show that it was white in colour which is not of the prohibited variety. 5. In the result, therefore, the revision is allowed and the order of conviction and sentence is set aside. The Petitioner be released from his bail bond. The fine, if paid, be refunded to the Petitioner. Final Result : Allowed