Judgment The appellant was found to have violated Clause 3 of the Cement (Quality Control) Order, 1968, hereinafter referred to as ‘Order’, which is an offence punishable under Sec.7(1)(a)(ii) of the Essential Commodities Act, 1955. 2. The prosecution alleged that the appellant was found in possession of 84 bags of adulterated cement in Door No.317, Chatram Kudiyiruppu, Rajavallipuram Road, Thalayuthu, which had been taken on monthly tenancy from P.W.1. P.W.5, Inspector of Police, Civil Supplies, C.I.D., inspected the premises aforementioned on 8.3.1984 at 12 noon and found the appellant present. The seizure was made the mahazar Ex.D7 attested by P.Ws.1 and 8. The cement seized was sent for analysis through Court and it was found not to conform to the two specifications of Portland Cement and Portland Pozzolana cement as per I.S.1969-76 and I.S.1489-76. In the opinion of the analyst, the sample were adulterated cement. The learned trial Judge found the accused guilty of the offence for which he was charged and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.800 in default to undergo rigorous imprisonment for one month. 3. The prosecution to substantiate its case examined P.Ws.1 to 5 and marked Exs.Pl to P8, apart from producing M.Os.1 and 2, sample packets of the cement seized. P.W.1 who is said to be the landlord of the premises and who had let it out on rental basis to the appellant had not supported the prosecution case and he was treated hostile. Similarly, P.W.2 Khaja Mohideen, who was examined as seizure witness also turned hostile. To prove the possession of the premises by the appellant as tenant, P.W.3, Thiru Madan Pillai, Village Administrative Officer was examined. However, even in chief examination, he has stated that he was not aware of the appellant having taken the concerned premises on monthly rental basis. He is not an attest or even to the mahazar for seizure. P.W.4 Thiru Balakrishnan, Deputy Inspector of Chemicals, has deposed about Exs.P5 and P6 the lest certificates relating to the alleged adulterated cement. 4. When the appellant was questioned by the trial Court on the evidence adduced against him, he denied his complicity in the crime and added that he had not taken the premises on rental basis from P.W.1. 5. P.W.4 Thiru Balakrishnan, Deputy Inspector of Chemicals, has deposed about Exs.P5 and P6 the lest certificates relating to the alleged adulterated cement. 4. When the appellant was questioned by the trial Court on the evidence adduced against him, he denied his complicity in the crime and added that he had not taken the premises on rental basis from P.W.1. 5. The trial Court on the oral and documentary evidence adduced before it, found the appellant guilty and sentenced him as mentioned earlier. 6. Mr.Ashokan, learned counsel for the appellant has put forth two contentions. (1) The expert cannot test the sample of the cement only for two of the varieties prescribed in Sec.2(b) of the Cement (Quality Control) Order, 1986, when there was no indication as to what variety the sample belonged or it purported to be. No representation has also been made in this case about the variety of the cement, and (2) There is no material on the recorded evidence to clinchingly prove that the appellant was in possession of the premises searched. 7. Mr.Kannappa Rajendran, learned counsel for the respondent was heard on both these aspects. 8. I agree with both the contentions of the learned counsel for the appellant. As long as there is no evidence to indicate the variety of the cement which was tested, it will be obligatory on the part of the prosecution to conduct tests for all the 10 varieties prescribed in Sec.2(b) of the Cement (Quality Control) Order, before the initiating prosecution. Of course, if there is any indication about the variety of the cement, then the relevant test alone could be carried out and it will be sufficient. In a case where there is no indication of the variety of the sample, there is no scope for the prosecution to exclude even one of the varieties mentioned in the order from analytical test before prosecuting the appellant. On this sole ground, this appeal is bound to succeed. Even on the second ground, in view of the hostility of P.W.1, and the evidence of P.W.3 being of no use, there is no material whatsoever to connect the premises searched with the appellant. On this sole ground, this appeal is bound to succeed. Even on the second ground, in view of the hostility of P.W.1, and the evidence of P.W.3 being of no use, there is no material whatsoever to connect the premises searched with the appellant. If the appellant cannot be connected with the possession of the cement bags found inside the premises, the reasoning of the trial Court that the presence of the appellant during the seizure and subscribing his signature to the seizure mahazar would be sufficient to convict him and the onus to disprove his guilt would be cast on the appellant, will not be sustainable. In my view, even in cases where the on us is shifted to the accused, the initial burden upto a particular stage always rests on the prosecution. Even the initial burden cast on the prosecution has not been discharged in this case. 9. In view of all the tests not having been conducted and the facts that there is no basis to connect the accused with the premises and the cement bags. I hold that the appeal has to be allowed. Accordingly, this appeal is allowed and the conviction and sentence imposed on the appellant by the trial Court are set aside and he is acquitted. Fine if any, paid shall be refunded. B.S. ----- Appeal allowed.