A. K. CHATTERJEE, J. ( 1 ) THIS revisional application is directed against an appellate order being G. A. 56/r3 of the court of Addl. Sessions Judge, Bankura affirming the conviction of the petitioner under Section 7 (1) (a) (ii) of the Essential Commodities Act 1955 for contravention of the provision of clause 7 occurring in Part II of the Iron and Steel (Control) Order 1956 (hereinafter referred to as the Order ). The prosecution case was that the petitioner had acquired a quantity of iron joist etc. for the purpose of repairing his factory at Bankura but instead of doing so, he had otherwise dealt with it which constituted a contravention of clause 7 of the Order. The defence, inter alia, was that he did use the goods for the purpose of repairing his factory at Bankura and in any case, Part II of the Order had no application inasmuch as the goods supplied to him were "off grade" as distinguished from "prime quality" and further the prosecution did not adduce any evidence that he had in fact used the goods for any other purpose which alone could constitute as contravention of clause 7 of the order. Both the courts below on consideration of evidence adduced by the prosecution have held against the petitioner, convicted him as aforesaid and sentenced him to suffer simple imprisonment for one year and a fine of Rs. 3,000/- in default to suffer simple imprisonment for three months more. ( 2 ) THE learned advocate for the petitioner has contended that the courts below were wrong in their finding that the goods in question were acquired by the petitioner for the purpose of repairing his factory at Bankura as there was no such evidence on record. The correctness; legality or propriety of this finding of fact cannot be successfully assailed in this revisional application as it does not appear that in coming to this finding the courts below had ignored any relevant evidence or relied upon any material not on the record. Principal contention raised on behalf of the petitioner was, however, that the prosecution had signally failed to bring home the charge against the petitioner because there was absolutely no evidence on record to suggest that the goods were used for a purpose other than repairing the factory at Bankura. Principal contention raised on behalf of the petitioner was, however, that the prosecution had signally failed to bring home the charge against the petitioner because there was absolutely no evidence on record to suggest that the goods were used for a purpose other than repairing the factory at Bankura. In this connection the learned advocate for the petitioner has referred to the decision of the Supreme Court in State of U. P. v. Ramalaya Sharma Vaidya, AIR 1966 SC 78 in which it was held that mere non-user does not constitute any violation of clause 7 of the Order. There was no controversy about this proposition of law but the learned advocate for the State has contended that in the instant case there was in fact a finding that the articles were used otherwise and in this connection our attention was drawn to the observation of the learned lower appellate court at page 11 of the judgement under revision that the prosecution had adduced evidence which established beyond reasonable doubt that the articles were used for a purpose other than that for repairing the factory at Bankura. This contention does not appear to be sound not only because the learned Judge has not condescended to point out any such evidence but also because no evidence could be brought to the notice of this Court to show that the article were actually used for a purpose other than for repairing the said factory. The learned advocate for the State has also tried to support the finding of the learned Judge by referring to the statement of the petitioner made in the trial court under Section 313 Code of Criminal Procedure wherein he had stated that the steel foods were used by him in repairing the factory at Bankura. This statement has been rejected by the trial court as well as by the appellate court and in this situation part of it cannot be accepted as an admission of the fact that the goods were used but for a purpose other than for repairing the factory in question. This statement has been rejected by the trial court as well as by the appellate court and in this situation part of it cannot be accepted as an admission of the fact that the goods were used but for a purpose other than for repairing the factory in question. It is no doubt on the record that the petitioner had disposed of the factory at Bankura even before the goods were acquired by him and in such situation it is quite probable that he might have used the goods for some other purpose; but it is not permissible for a criminal court to enter into the realm of probability and exonerate the prosecution from proving a fact so essential to bring home the charge. In this state of record, the finding of the learned Judge that the articles were used otherwise, being not based in any evidence cannot be sustained and the conviction is liable to the struck down on this score alone. ( 3 ) THE learned advocate for the State has pointed out that previously the petitioner had unsuccessfully moved this Court in revision being Criminal Revision Nos. 422 and 423 of 1976 against the order passed by the learned Magistrate framing charge against the petitioner on the ground that he had no territorial jurisdiction to try the case. It was urged that in the said revision case it was held by Nag J. that the learned Magistrate had ample jurisdiction to try the case and that it was further held that the offending goods were disposed of by the petitioner instead of utilising the same for repairing his factory at Bankura. The order passed by the Hon'ble Mrs. Justice Nag did not and indeed could not contain any finding that the petitioner half disposed of the goods in question because the revisional application was made as soon as the charge was framed and before any evidence was adduced on behalf of the prosecution. Therefore, the earlier revisional application is hardly relevant in the present proceeding. ( 4 ) NOW the question of applicability of Part II of the Order has to be decided. There was no controversy and in fact it appears from the Order itself that it applies to iron and Steel of prime quality listed in the first schedule thereto. Therefore, the earlier revisional application is hardly relevant in the present proceeding. ( 4 ) NOW the question of applicability of Part II of the Order has to be decided. There was no controversy and in fact it appears from the Order itself that it applies to iron and Steel of prime quality listed in the first schedule thereto. Now, it appears from the documents tendered on behalf of the prosecution that the goods which were supplied to the petitioner were "off grade". The learned Judge appears to be of the view that the argument of the petitioner that Part II of the order was not applicable was a fantastic one having no legs to stand upon because if really the articles were not of prime quality he would certainly refuse to accept the same or raise objection about its quality at the first opportunity and he would also state about it in his examination under Section 313 Code of Criminal Procedure. The learned Judge has also pointed out that it has not put any witness that the articles actually supplied were of defective grade or scrap not within the scope of Part II of the Order. The learned Judge went to the extent of observing that the articles were scrap or defective then the prosecution would apply clause 19 of the Order to inculpate the petitioner. It is difficult to appreciate these findings and observations of the learned Judge. It must be borne in mind that it was entirely upon the prosecution to establish that the articles which were supplied were of prime quality so as to attract the operation of Part II of the Order. There is not an iota of evidence on record to show that the goods supplied were of prime quality; on the other hand, documents admitted into evidence on behalf of the prosecution specifically state that the articles delivered were 'off grade'. In such situation it was incumbent upon the prosecution to prove that "off grade" and "prime quality" were synonymous and this not having been done, it was none of the concern of the petitioner to cross-examine any witness regarding the quality nor was there any scope to make an appropriate statement in his examination under-Section 313 Code of Criminal Procedure wherein he was only supposed to explain the circumstances transpiring in evidence against him. There could not also possibly be any question of the petitioner refusing to accept the goods as there is no evidence that he made a requisition for goods of prime quality. Regarding the observation of the learned Judge that if really the goods supplied were defective or scrap the prosecution would start a case for contravention of the provision of clause 19 occurring in Part-III of the Order, suffice it to say that it pre-supposes that what the prosecution did was absolutely correct and exempts it from proving its case to a certain extent which is entirely foreign to our concept of criminal jurisprudence. Therefore, the finding of the learned Judge regarding applicability of Part II of the Order being not based on any evidence on record can be successfully canvassed in revision which is yet another ground to set aside the impugned order. ( 5 ) THE last argument raised on behalf of the petitioner was that even if the goods supplied were of prime quality, clause 7 was not attracted as the acquisition was not made by the petitioner under any quota certificate or permit issued by the Controller under clause 4 of the order. The learned Judge has held and the learned Advocate for the State has also argued that clause 7 is independent of clause 4 or in other words, a person may he charged for contravention of the provision of clause 7 even if the acquisition was not made under any quota certificate or permit issued by the Controller under clause 4. It was so argued because clause 7 was amended in March 1971, whereby the words "in accordance with the provision of clause 4" which occurred after the words "a person acquiring iron and steel" were deleted. The learned advocate for the petitioner has referred to certain unreported decisions of the Supreme Court (Criminal Appeals Nos. 153 and 154 of 1962) prior to the amendment referred to above which held that clause 7 would not operate unless it was found that acquisition was made in accordance with the provision of clause 4. The learned advocate for the petitioner has referred to certain unreported decisions of the Supreme Court (Criminal Appeals Nos. 153 and 154 of 1962) prior to the amendment referred to above which held that clause 7 would not operate unless it was found that acquisition was made in accordance with the provision of clause 4. The learned advocate for the State has argued that these decisions can no longer be regarded as good law in view of the amendment to clause 7 and, therefore, the question which calls for adjudication is whether the amendment has substantially altered the legal position in this regard and has the effect of nullifying the decisions. The answer should be in the negative because clause 4 being the only clause under which an acquisition can be made of goods to which Part II applies, a person can come within the mischief of clause 7 only if the acquisition is made under clause 4 and it is immaterial whether this clause is specifically mentioned in clause 7 or not to this situation and in the absence of any object for amendment the conclusion must be that clause 7 is not independent of clause 4 as held by the learned lower appellant court and accordingly clause 7 is not attracted in the instant case as there is nothing on the record to show that the acquisition was made under any quota certificate or permit issued by the Controller under clause 4. This is also a ground why the finding of the courts below that the petitioner had contravened the provisions of clause 7 cannot be sustained. ( 6 ) FOR foregoing reasons the revisional application succeeds and the conviction and the sentence imposed upon the petitioner are set aside. He is acquitted of the charge framed against him and discharge of from the bail bond. ( 7 ) RECORD be sent down expeditiously. ( 8 ) PADMA KHASTGIR, J. :- I agree. Revision allowed. .