S. D. ZHA, J. ( 1 ) APPELLANTS Vimal Kumar and Ashok Kumar (hereinafter described as accused) challenge their conviction under Section 3n of the Essential Commodities Act, 1955 and the sentence of three months R. I. and fine of Rs. 2,000/- each, in default two months simple imprisonment awarded by Sessions Judge by judgment dated 22-9-1986 in a summary trial acting as a Special Judge under Essential Commodities Act. 1955. ( 2 ) THE prosecution story is that accused persons are partners of the shop carrying on business in the name and style of Agarwal Bandhu Trading Co. and hold licence under the Food Grain Licensing Order, 1965. On 1-3-1983 Vijay Singh Food Inspector (P. W. 2) checked the shop of the accused under superintendence of Amar Singh, Food Controller (P. W. 1)-at about 10 a. m. in the morning in the presence of accused Ashok Kumar. Opening stock as per stock register and purchases made on the date the total wheat stock should have been 184 quintals 5 Kg. and 100 grams. As per bills issued 7 quintals and 51 Kg. were sold on the day. Total stock on physical verification was found to be 187 quintals. Thus, the actual excess stock was found to be 10 quintals, 45 Kg. and 400 grams. A panchanama was drawn up, it was signed by Ashok Kumar, Panchas Manohar and Sawan. Seizure of documents were made and report forwarded to police who registered offence and put up challan against the accused persons. ( 3 ) THE learned Sessions Judge, Indore on 5-10-1983, explained particulars of charge of offence under Section on of Essential Commodities Act read with Clause 3 of M. P. Foodgrains Licencing Order, 1965 and Condition 11 of the Licence issued there under to the accused persons. They denied the charge. In their examination the two accused admitted, the raid and drawing up of panchanama. They explained that the excess quantity of 10 quintals 45 Kg. and 400 grams of wheat to belonged to one Sawantram of Villege Piplda. They examined Sawantram to prove that excess quantity of wheat in 15 bags belong to him and that the accused made payment in respect of the same after two or three days. The learned Sessions Judge, disbelieved the defence of the accused and convicted and sentenced them a$ stated above. They examined Sawantram to prove that excess quantity of wheat in 15 bags belong to him and that the accused made payment in respect of the same after two or three days. The learned Sessions Judge, disbelieved the defence of the accused and convicted and sentenced them a$ stated above. ( 4 ) IN appeal Shri H. S. Oberai, teamed Counsel for the appellant, submitted that Condition 3 (ii) of the licence issued under Clause 4 (2) of the M. P. Foodgrain Dealer Licensing Order, 1965 license has to complete his account for each day on the day to which they relate. The accused were required to complete the records by the end of the day. Raid was conducted at 10 a. m. Shri Oberai further submitted that the accused Ashok Kumar in the panchanama and his statement Ex. P-2 drawn up by Vijaysingh (P. W. 2) and his statement recorded immediately during the raid Ex. p. 3 had explained that 15 bags of wheat weighing nearly 10 quintals belonged to Sawantram of Village Piplda. He has brought this wheat for sale to accused in a Matador and after leaving the bags in the shop had gone out for refreshment. The learned Sessions Judge erred in disbelieving the explanation of the accused and defence witness Sawantram without any good reason. As accused Ashok Kumar had put up defence during the raid itself, the learned Sessions Judge should have believed his explanation and the defence witness. In the alternative he submitted that if the accused were held guilty, benefit of Probation of Offender Act should be extended to them. In support of submissions Shri H. S. Oberai relied on Bhagat Ram v. State of Punjab1 and Narayandas v. State of MP. 2. ( 5 ) SHRI Pawnekar for the State defended the impugned judgment. ( 6 ) VIJAYSINGH (P. W. 2) in cross-examination admits that accused Ashok Kumar had informed him that the wheat belonged to Sawantram of Village Piplda. Panchanama Ex. P-2 shows that at the time of inspection wheat in 15 bags weighing nearly 10 quintals were, stated by the accused, as belonging to Sawantram of Village Piplda. Statement of accused Ashok Kumar Ex. P. 3 also shows the same thing. Panchanama Ex. P-2 shows that at the time of inspection wheat in 15 bags weighing nearly 10 quintals were, stated by the accused, as belonging to Sawantram of Village Piplda. Statement of accused Ashok Kumar Ex. P. 3 also shows the same thing. The two documents also show that excess wheat was in 15 bags and it is significant that its correct weight is not given but its weight is roughly given out as being 10 quintals. Sawantram (D. W. 1) stated that he owns 90-100 bighas of agricultural lands at village Piplda and grows wheat and juwar on the same. On 1-3-1983 at about 9-9. 30 a. m. he had brought wheat in 15 Kattas (half bags), left the same at the shop of the accused and went up for refreshment, when he returned he found officers collected there. Accused made payment for the same after two or three days. ( 7 ) THE learned Sessions Judge after observing that prosecution witnesses were most irresponsible and their conduct representive, proceeded to convict the accused based on their admission that excess quantity of wheat was found in their shop and it was for them to prove that the excess quantity was stocked with them by Sawantram. The learned Sessions Judge disbelieved Sawantram because he failed to raise an objection at the time of raid that wheat belonged to him and because he did not remember the date when Holi festival fallen. He also observed that ex post facto story invented by the accused could not believed. ( 8 ) DURING the hearing a question was put to both the parties whether there was any legal prohibition in accused purchasing wheat from a cultivator like Sawantram. Both the parties stated that there was no legal prohibition if accused making such a purchases. ( 9 ) IT is significant that defence put up by the two accused during the trial was put up by them in panchanama Ex. P-2 and statement of accused Ashok Kumar Ex. P-3. It is also admitted by Vijaysingh (P. W. 2) in cross-examination. In Bhagatram v. State of Punjab. ( 9 ) IT is significant that defence put up by the two accused during the trial was put up by them in panchanama Ex. P-2 and statement of accused Ashok Kumar Ex. P-3. It is also admitted by Vijaysingh (P. W. 2) in cross-examination. In Bhagatram v. State of Punjab. (supra) a case under Section 409, I. P. C. dealing with appreciation of evidence the Supreme Court observed To our mind, the very fact that the defence was given out at such an early stage and that it has, to such a large extent, been corroborated is a strong reason for thinking that the defence was very likely to have been true. ( 10 ) THE learned Sessions Judge should not have disbelieved defence witness Sawantram (D. W. 1) for the mere reason that he could not give the date where Holi festival fell and remembered the date when he brought the wheat to the shop of the accused. There may be an important event on a day-one may have reason to recollect but may not know the date or day of particular festival. For that reason alone the witness cannot be branded on liar. Besides, as earlier observed the defence was put forth by accused Ashok Kumar at the earliest. It was corroborated by defence witness. Keeping observations of the Supreme Court reproduce above in mind the same is accepted and the accused held not guilty of the offence of which they have been convicted. ( 11 ) AS a result conviction and sentence imposed against the accused-appellants is set aside and they are acquitted. They are on bail, their bail bonds are discharged. Fine, if paid, shall be refunded to them. The appeal is allowed.-Appeal allowed .