JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the order dated 20-9-1983 passed by the Transport Magistrate, Cuttack in case 26 C No. 1171 of 1983 convicting the Petitioner u/s 34 of the Orissa Weights and Measures (Enforcement) Act, 1958 (hereinafter referred to as ?the Act?) and sentencing him thereunder to pay a fine of Rs. 150/-, in default, to S.I. for ten days, on the Petitioner pleading guilty to the charge levelled against him. 2. The prosecution case is contained in the prosecution report submitted by the Senior Inspector of the Weights and Measures, Cuttack-l, wherein it was stated that: .... On inspection, the accused was found selling of 83 c.ms. breadth of seized cloth instead of 86 C. M. Hence 3 c.m. by short measure of cloth was sold by the accused (sic) 3. As the Petitioner was found guilty u/s 34 of the Act on his own plea of guilty, and as the learned Counsel for the Petitioner contended that the order of the learned Magistrate convicting and sentencing the Petitioner u/s 34 of? the Act is illegal, the correct approach should be to find out, whether even if all the materials placed on record by the prosecution is accepted as true it would spell out a case u/s 34 of the Act, against the Petitioner. 4. Now I proceed to consider the material placed on record against the Petitioner. On receipt of the P. R. by the learned Magistrate u/s 34 of the Act, when the substance of the accusation was explained by him to the Petitioner, as the latter pleaded guilty, his statement was recorded by the learned Magistrate as follows: Q. It appears from the P.R. that on 29-9-1983 at 11.45 A.M. at Buxibazar, you were selling seized cloth marked 86 C. M. breadth, but when measured it came to 83 C. M. Ans. Yes. Q. What more have you to say? Ans. Guilty. 5. As the seizure list is the most material piece of document in the case having a direct bearing on the point of law involved in this revision the same is reproduced below: SEIZURE LIST (The Weights and Measures (Enforcement) Act, 1958) 1. Name of the person from whom seized J. K. Mahammed aged 65 years, S/o. M. D. Ayub, owner of Imperial Trading. 2. Name of the person from whom seized J. K. Mahammed aged 65 years, S/o. M. D. Ayub, owner of Imperial Trading. 2. Permanent address of the person from whom seized - at Buxibazar, P. S. Mangalabag, Cut tack. 3. Place of seizure - At Buxibazar. 4. Date and time of the seizure, Dt. 20-9-1983 at 11.10 A. M. 5. Particulars of the articles seized- (1) one cloth piece of poplin 18 m. length. 6. Brief description of the offence committed - On inspection it was found that the accused was selling the above cloth piece in which the breadth of the cloth is mentioned 86 c. m. whereas the actual is found to be 83 c. m. Hence 3 c. m. of short measure of cloth was sold. 7. Signature with address ?If witnesses to seizure (a) Sd/-I Ilegible, 20-9-1983, l/S (R), Cuttack (B) . Sd. N. N. Dalei, Ins (V) C. D. etc., 20-9-1983 Received copy Sd. Illegible. 20-9-1983 Sr. Inspector, Weight & Measures, Cuttack-I. Sd. Zakarsia Mahammad Signature of the Person from whom seized.? From the above recitals in the seizure list it is Seen that the piece of cloth in question was seized from accused Zakarsia Mahammed (referred to as J. K. Mahamrned in the seizure list). 6. On 20-9-1983 after recording the statement of the accused, the learned Magistrate passed the following order: P.R. is received u/s 34 W. & M. Act cog. taken u/s 34 W. & M. Act. Accused is produced. Substance of accusation is explained to him. He pleads guilty and does not claim for trial. Hence his statement is recorded. He is found guilty u/s 34 W. & M. Act convicted thereunder and is sentenced to pay a fine of rupees one hundred fifty only i. d. to S. I. for ten days. Pronounced this order in the open Court today, Sd. N. N. Nayak 20-9-1987 J. M. F. C.. Cuttack. 7. For convenience of ready reference the provisions of Section 34 of the Act are quoted below ; Whoever in selling any article by weight or measure, delivers Or causes to be delivered to the purchaser less than what is purported to be sold shall, if the deficiency exceeds the prescribed limit of error, be punishable with fine which may extend to three hundred rupees. The object of the Orissa Weights and Measures (Enforcement) Act. The object of the Orissa Weights and Measures (Enforcement) Act. 1958 is to provide for the enforcement of the standard weights and measures based on metric system in the State of orissa and to provide for other matters connected therewith and thereby protect the consumers from exploitation at the hands of unscrupulous shop-keepers when they purchase goods from them. For holding a person guilty u/s 34 of the Act, the following ingredients must be proved against him: 1. The person concerned must sell the article in question by weight or measure: 2. In pursuance of such sale, he should deliver or cause to be delivered to the purchaser less than what is purported to be sold; find 3. The resulting deficiency should exceed the prescribed limit of error. So the gist of the offence u/s 34 of the Act is the adopting of such measuring or weighing device in the course of a sale that would facilitate the vendor to cheat the purchaser by delivering him less than what he purported to sell. 8. In our present case, no doubt according to the P. R. the allegation was that the Petitioner was ?found selling? 83 c. Ms. breadth of seized cloth, but there is no mention as to the person to whom the Petitioner was found selling the,cloth in question either in the prosecution report, or in the statement of the accused. Even in the impugned order the learned Magistrate has merely stated that the substance of the accusation was explained to the Petitioner, but there is no reference to, or mention of any sale transaction at an. The learned Counsel for the Petitioner submitted that the Inspector of Weights and Measures came to the Petitioner?s shop and straightaway seized one bundle of poplin cloth measuring 18 metres on the allegation that the breadth of the cloth was found to be 83 c. Ms. as against ?86 c. Ms. ? printed by the manufacturer on the top of the cloth. The recitals in the seizure list showing the seizure of the cloth of 18 metres in question from the Petitioner fully support the said submission of the defence counsel because, had the entire bundle of cloth or part of it been sold to somebody, the seizure of the same should have been made from such purchaser. The recitals in the seizure list showing the seizure of the cloth of 18 metres in question from the Petitioner fully support the said submission of the defence counsel because, had the entire bundle of cloth or part of it been sold to somebody, the seizure of the same should have been made from such purchaser. On a scrutiny of Section 34 of the Act it is earlier seen that one of the main ingredients of the offence u/s 34 is that there should be a transaction of sale of goods by weight or measure. But: in the present case, what all the materials placed on record would merely disclose is that the cloth in question was found in the .hop of the Petitioner: and barring that none of the essential ingredients of Section 34 is brought home to the Petitioner. Thus, it is seen that even if the entire material placed on record is accepted as true, it does not make out a case u/s 34 of the Act against the, Petitioner. So the order of conviction and sentence passed against the Petitioner if,legally, not, maintainable and liable to be set aside. 9. In the result, thereby set aside the order of conviction and sentence passed by the learned lower Court against the Petitioner u/s 34 of the Orissa Weights and Measures (Enforcement) Act, 1958 and accordingly allow the revision. The cloth seized in the case be returned to the Petitioner. The fine amount, if realised, be refunded to him.