JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the judgment dated 4-1-1985. passed by the Judge of the Special Court. Koraput, Jeypore, convicting the accused-Petitioner u/s 7 of the Essential Commodities Act, 1955 and sentencing him there under, to undergo simple imprisonment for four months and to pay afire of Rs. 1000/- in default to undergo simple imprisonment for a further period of one month. . 2. The gist of the prosecution case is that on 28/29-9-1983 at about 2 a. m. in the night as the truck bearing No. ORG 9844 was coming from the Malkangiri side it was stopped and checked by the Officer-in-charge of Boipariguda Police Station, in front of the police station, when it was found that the accused-Petitioner was' carrying 145 bags of levy cement without a,valid permit and thereby violated Sub-clause (2) of Clause 14 of the Orissa Cement Control (Amendment) Order 1982 (hereinafter referred to as the Cement Control Order) and rendered himself punishable u/s 7 of the Essential Commodities Act 1955 (E. C. Act, for short). 3. The defence plea is that the 145 bags of cement seized' from the Petitioner was not levy cement, as the same was purchased by him in the free-market at Vizag and therefore, from the mere fact that he was found to be in possession of the 145 bags of cement in question it cannot he held that he has committed any offence u/s 7 of the E. C. Act. He has examined two d. ws. in support of his plea. 4. The prosecution has examined six witnesses to prove its case, p.w. 1 was a witness to the seizure of a register from the Tatanagar Transport Office at Malkangiri p.w. 6 was the driver of the truck ORG 9844 who claims that be was engaged by the accused at Malkagiri to carry the cement bags in his truck. P. w. 3 was examined to show that 'the truck bearing' No. ORG 9844 was at Malkangiri on 27-9-1983. P. w. 5 is a witness to the seizure of the 145 bags of cement. P. w. 4 was main I. O. in the case and p.w. 2 took charge of the investigation from p.w. 4 and submitted the charge-sheet. 5. P. w. 3 was examined to show that 'the truck bearing' No. ORG 9844 was at Malkangiri on 27-9-1983. P. w. 5 is a witness to the seizure of the 145 bags of cement. P. w. 4 was main I. O. in the case and p.w. 2 took charge of the investigation from p.w. 4 and submitted the charge-sheet. 5. There is reliable evidence from the side of the prosecution to show that on the night of 28/29-9-1983 at about 2 a. m. the accused was found carrying 145 bags of cement in the truck bearing registration No. ORG 9844 and that the said 145 bags of cement were subsequently seized. The accused also does not deny the seizure of 145 bags of cement from his possession but be pleaded that the cement so seized from him was non-levy cement purchased by him in the open-market at Vizag. If the 145 bags of cement were really purchased in the open-market, as claimed by the accused, he cannot be found guilty of an offence u/s 7 of the E. C. Act. So whether the cement in question is levy cement or non-levy cement is the only issue that comes up for decision in this case. 6. As defined under Sub-clause (ee) of Clause 2 of the Orissa Ciement Control Order- 'Levy cement' means the cement requisitioned by the Central Government from the cement producers of India u/s 18A of the Industries (Development and Regulation) Act 1951 (65/1951). The Explanation under that sub-clause provides that the word 'cement' wherever it occurs in the Order, will 'mean levy cement only. So by the date of occurrence the accepted position is the cement available in the market can be broadly classified into two categories, viz. First, levy cement which can be obtained at controlled price on proper permit, and Secondly, the non-levy cement which can be purchased in the open market without any permit. The Cement Control Order would apply if the cement in question is shown to be levy cement but not otherwise. So if the 145 bags of-cement are non-levy cement purchased in the open market, then the question of the accused committing any offence under, Section 7 of the E. C. Act does not arise for consideration. 7. The Cement Control Order would apply if the cement in question is shown to be levy cement but not otherwise. So if the 145 bags of-cement are non-levy cement purchased in the open market, then the question of the accused committing any offence under, Section 7 of the E. C. Act does not arise for consideration. 7. At the outset the learned Counsel for the Petitioner contended that the burden of proving that the cement in question is levy cement lies on the prosecution and as it failed to discharge that burden by providing independently that the cement in question is levy cement on that score alone accused is entitled to an acquittal. On the aspect of burden of proof when the issue is whether the cement in question is levy cement, no decision could be cited at the Bar. While levy cement is purchased at controlled price the non-levy cement is purchased at the free-market rate and thus there is difference in the price at which they were purchased. Admittedly there is no means by which levy Cement can be distinguished from non-levy cement. Keeping in mind this special feature of the problem, if one considers the aspect of burden of proof it is evident that it is only the person in possession of the cement, who can say whether he purchased it in the open-market or from a control dealer. In this context it would be relevant to consider the provisions of Section 106 of the Evidence Act which reads as - follows: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him While considering the scope of Section 106 of the Evidence Act, the Supreme Court in Shambu Nath Mehra Vs. The State of Ajmer observed thus Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. x x x This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Section 101 lays down the general rule about the burden of proof. x x x This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his know ledge... 8. In the present case it is easy for the accused to prove that he has purchased the cement in question from the free-market whereas the prosecution has no means of proving its opposite. Whether the cement in question is levy cement or non-levy cement is a matter which is pre-eminently or exceptionally within the knowledge of the accused. This is a situation which attracts the application of Section 106 of the Evidence Act. Considering the peculiar nature of the issue involved. I hold that if the accused claims that the cement in question is non-levy cement, as he purchased it,from the open market the burden of proving the same lies on him. 9. Exts. 1011. 10/2 and 10/3 are cash memos showing that 100 bags of cement on 28-9-1983.50 bags of cement on 21-9-1983 and 50 bags of cement on 29-9-1983, were respectively sold to one P. N. Padhy by the merchant'S at Vizag. D. w. 1 was examined to prove the same. D. w. 1 stated that he has no personal knowledge regarding these transactions and he does not know if the cement in question was sold to the accused. None of these cash memos Exts. 10/1. 10/2 and. 10/3 were produced at the time of seizure of the cement in question. When the cement was seized on the night of 28/29-9-1983 at about 2 a.m. it can never be said that the 50 bags of cement said to have been purchased on 29.9-1983 under Ext. 10/3 was part of that cement so seized. On a perusal of Ext. 10/3 were produced at the time of seizure of the cement in question. When the cement was seized on the night of 28/29-9-1983 at about 2 a.m. it can never be said that the 50 bags of cement said to have been purchased on 29.9-1983 under Ext. 10/3 was part of that cement so seized. On a perusal of Ext. 10/1, the cash memo relating to 100 bags of cement, It is seen that it is said to have been delivered to a vehicle bearing registration No. A TV 5654. The relevant way bill Ext. 10/4 does not show the name of the dealer from whom the cement was purchased. No suggestion was put to any of the p. ws, regarding the purchase of cement from, the dealers mentioned in Exts. 10/1. 10/2 and 10/3. The accused has examined himself as d. w. 2. He deposed that on 30-9-1983 he brought 200 bags of non-levy cement from Vizag to Malkangiri. But,his said evidence is in no way helpful to his case .as the seizure of the 145 hags of cement in question was done on the night of 28/29-9-1983. P. w. 6 is the driver of the truck ORG 9844 coming from the Malkangiri side. His reliable evidence to the effect that the 145 bags of cement were collected by the accused from three houses of Malkangiri area, falsifies the claim of the accused that he purchased the cement bags in question in open market at Vizag. On a perusal of the judgment, I find that it was only on a careful consideration of the evidence that the learned Judge of the Special Court came to the finding that the plea of the accused that 145 bags of cement seized were non-levy cement purchased by him from the open-market at Vizag as false. 10. The learned Counsel for the Petitioner relied on Prasanna Kumar Singh v. S. S. Pradhan 50 (1980) C.L.T. 60. That is a case where there was evidence to show that the cement ill question was white in colour which was not of the prohibited variety and on that score, the accused was acquitted. In the instant case it is not the case of the accused that the cement is either white or of coloured variety. That is a case where there was evidence to show that the cement ill question was white in colour which was not of the prohibited variety and on that score, the accused was acquitted. In the instant case it is not the case of the accused that the cement is either white or of coloured variety. The issue between the parties was only whether it was levy cement or non-levy cement and the very nature of the issue would suggest that admittedly the cement in question was not of the excluded variety. Hence the above referred decision is in no way helpful to the Petitioner in the facts of the present case. 11. On a consideration of the material placed on record, I hold that the trial Court has rightly Come to the finding that as the accused was 'found to be in possession of 145 bags of levy cement in violation of Sub-clause (2) of Clause 14 of the cement control order, he rendered himself liable u/s 7 of the E.C. Act. 12. The learned Counsel for the Petitioner pleaded that even if the Petitioner is found guilty u/s 7 at the E.C. Act, there is a fit case for applying the provisions of Section 360. Cr.P.C., By Section 18 of the Act 34 of 1976, Section 20-AA was inserted in the Prevention of Food Adulteration Act, 1955 declaring' that the offenders under that Act are no longer covered by the probation laws. Before that in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, it was observed that the rulling in Isher Das v. State of Punjab 1972 S.C.D. 262, is an authority for the proposition that the rehabilitatory purpose of the Probation of Offenders Act. 1958 is pervasive enough technically take within its wings and offence even under the Prevention of Food Adulteration Act, 1954. As there is no provision in the E. C. Act similar to Section 20AA of the Prevention of Food Adulteration Act, relying on Ishar Das's case (supra) it can be held that the benefits of the probation laws are available to an offender under the E. C. Act as wen. In fact that is what this Court held in P. Shusila Patra v. State 63 (1987)C.L.T. 559 and on considering the peculiar facts and circumstances of the case, released Shusila Patra, a lady on probation. In fact that is what this Court held in P. Shusila Patra v. State 63 (1987)C.L.T. 559 and on considering the peculiar facts and circumstances of the case, released Shusila Patra, a lady on probation. As observed by the Supreme Court in Tejani's case (supra), white-collar criminals committing economic offences are unlikely to be dissuaded by gentle probationer any process and that it is not without significance that the 47th report of the Law Commission of India had recommended the exclusion of the Probation of Offenders Act to the social and economic offences by suitable amendments. 13. The prescription of a minimum sentence is no bar to the applicability of Section 360. Cr. P. Coo but whether the beneficial provisions of that section should be applied in favour of the accused in a given case would depend upon the facts of the case. While imposing a sentence, its legality and propriety are the two aspects while should be kept in view. Misplaced leniency and sympathy for the accused are likely to defeat the very object for which punishments are provided, In the present case the offences was committed in respect of 145 bags of cement. The judge of the special court observed that having regard to the gravity of the offence the accused deserved a deterrent punishment and I see no reason to differ with his view. So in the facts and circumstances of the present case, I find this is not a fit case for invoking the provisions of Section 360. Cr.P.C.. 14. In the result. I find no merit in the revision petition and therefore the revision petition is dismissed. Final Result : Dismissed