JUDGMENT : J. Das, J. - This criminal appeal arises out of the conviction and sentence dated 19-11-1983 passed by Sri G.S. Patnaik, Special Judge, Koraput, Jeypore in T.R. No. 4 of 1983 convicting the Appellant u/s 7 of the Essential Commodities Act and sentencing him to undergo RI. for six months. 2. The prosecution case briefly stated is that the accused (Appellant) P. Basudeb Rao has a grocery shop at village Bodopindapodar. It was alleged that the accused was storing rice and paddy in wholesale quantity and was also purchasing paddy at a price lower than those declared by the Government by the notification in the official Gazette. The Inspector of Supplies, P.L. Nayak (P.W. 9) made an enquiry into the allegations. In course of enquiry, P.W. 9 came to know that the accused was purchasing paddy at a lesser price than those declared by the Government. P.W. 9 also seized 12 quintals and 80 K.Gs. of coarse paddy and 30 quintals and 20 K.Gs. of fine paddy from the hence of one Budura parja alleged to have been stored by the accused (Appellant). The Inspector of Supplies (P.W. 9) seized the paddy and after necessary enquiry, Prosecution Report was submitted alleging that the accused violated the provisions of Clause-3 and Clause-11(aa) of the Orissa Rice and Paddy Control Order, 1965, and hence he committed an offence u/s 7 of the E.C. Act. 3. The defence plea appears to be that the accused is a cultivator. The accused has also denied to have purchased paddy at a price lower than the price declared by the Government. 4. The learned Special Judge gave the finding that there is no material to show that the seized paddy is the produce of the land of the accused. The learned Special Judge also gave the finding that the accused was purchasing paddy at a price which is less than those declared by the Government. Thus, the learned Special Judge held that the accused has committed an offence u/s 7 of the E.C. Act by violating the provisions of Clause-3 and Clause-11(aa) of the Orissa Rice and Paddy Control Order. 5. The learned advocate for the Appellant argued that the findings of the learned Special Judge is incorrect and not in accordance with law and hence that finding should be set aside. 6. 5. The learned advocate for the Appellant argued that the findings of the learned Special Judge is incorrect and not in accordance with law and hence that finding should be set aside. 6. The learned Special Judge does not say that the accused is not a cultivator. There is also enough material, both oral and documentary to show that the accused is a cultivator. The finally published Record of Rights and those Exts-A and B. From Exts-A and B, it appears 4 acres 86 decimals of land. 7. According to the proviso to Clause-2(b) of the Orissa Rice and Paddy Control Order, it is clear that a person who happens to be a cultivator or landlord, he is not deemed to be a dealer in respect of the rice or paddy being the produce of the land cultivated by him. The total quantity of paddy in this case is only 33 quintals. Now a days the cultivation has far advanced. In any case, the production of paddy from about 5 acres of land must be more than 33 quintals. As there is clear evidence to the effect that the accused is a cultivator and he has got enough land, production of which may be more than 33 quintals, it is very difficult to say that the seized paddy is not the produce of the land of the accused. In any case, the initial burden of proof lies on the prosecution and the prosecution has not proved in this case that the accused had purchased the seized paddy from others. In these circumstances it must be held that the prosecution has failed to prove that the accused is a dealer within the meaning of the Orissa Rice and Paddy Control Orders. 8. The next question is whether the accused has violated the provisions of Section 11(aa) of the Orissa Rice and Paddy Control Order. For easy reference relevant portions of Clause-11(aa) are quoted below: Sale, purchase and storage by Purchasing Agents, etc: No dealer including any person exempted tinder the proviso to Sub-clause (1) of Clause-3 shall. 8. The next question is whether the accused has violated the provisions of Section 11(aa) of the Orissa Rice and Paddy Control Order. For easy reference relevant portions of Clause-11(aa) are quoted below: Sale, purchase and storage by Purchasing Agents, etc: No dealer including any person exempted tinder the proviso to Sub-clause (1) of Clause-3 shall. xx xx xx (aa) purchase paddy at prices lower than those declared by the Government by a notification in the official Gazette to the prices at which paddy may be brought: Provided that it shall be competent for the Government to fix different prices for different grades and variations of paddy and for different Kharif years, each beginning on 2-a (1st of October). According to Clause-11(aa), the price of the paddy will be declared by the Government in advance in official Gazette. In this case Ext-4 has been produced to show the price declared by the Government. Ext-4 is no doubt a notification issued by the Government of Orissa, Food and Civil Supplies Department and circulated to various authorities under different memo numbers, Ext-4 may be intended to be notified in the official Gazette, but it is not the official Gazette. There is no proof of the official Gazette in this case and hence it cannot be said that the Government declared any price within the meaning of Clause-11(aa) by a notification in the official Gazette. Thus, the essential ingredient of the offence has not been proved by the prosecution and so it cannot be said that the prosecution has successfully proved that the accused has violated the provisions of Clause-11(aa) of the Orissa Rice and Paddy Control Order. In the circumstances discussed above, the prosecution has failed to prove its case by producing necessary legal evidence and hence the Appellant ought to have been acquitted. 9. In the result, the criminal appeal is allowed and the conviction and sentence passed against the Appellant is set aside. Appeal allowed. Final Result : Allowed