Judgment : The appellant, was the sole accused in S.T.C.No.18 of 1985 on the file of the Special Court, E.C.Act cases, Pudukottai. The charge against him was that he had violated Clause 3 of the Cement Quality Control Order 1962, punishable under Sec.7(1)(a)(ii) of the Essential Commodities Act There were two counts of charges one relating to his having sold one bag of cement to P.W.2 Ranganathan on 20.6.1983, which on having been used by P.W.2 on his floor, dissolved in water two or three days later the second count of the charge was that at 2.30 a.m. on 24.6.1984, P.W.7 the Inspector of Police, Civil Supplies C.I.D. inspected premises No.13 Big Street, Kamaraj Nagar, Ariyamangalam and found 51 bags of adulterated cement stored there. 2. Theprosecution case was that the premises in question had been taken on a monthly rental by the appellant from P.W.3, Rajunaidu, the landlord of the premises. The search by P.W.7 was made in the presence of P.W.1, who has attested the mahazar, Ex.P.1. Ex.P.5 is the search list. The appellant was present during the search and the copy of the search list was served on him under his acknowledgment. P.W.7, who had taken samples, from the Cement, found in the premises had despatched them for analysis through court. Ex.P.4 is the report of the chemical testing and analytical laboratory attached to the Department of Industries and Commerce, Guindy. This report shows that the sample sent for analysis did not confirm to any of the following specifications for cement. 1. I.S.269-76 - Ordinary Portland Cement. 2. I.S.1489-76 - Portland Pozzolana Cement. 3. I.S.455-76 - Portland Slag Cement. 4. I.S.8041-78 - Repaid hardening Cement. 5. I.S.8043-78 - Hydrophobic Cement. 6. I.S.6452-E-76 - White Portland Cement. 7. I.S.6909-76 - Super Sulphated Cement. Therefore, it was concluded that the seizure was adulterated cement. After obtaining the report of analysis, this prosecution was initiated. 3. Tosubstantiate the prosecution case, P.W.7 apart from examining himself and P.W.1, the attestor, had examined P.Ws.2 to 5 for the purpose of proving that the appellant was storing, for sale and selling cement in the premises, from where the 51 bags of cement were seized. P.W.6 is the Court Clerk, through whom the report of the analyst, has been exhibited. 4. P.W.6 is the Court Clerk, through whom the report of the analyst, has been exhibited. 4. The appellant, when questioned by the trial Court under Sec. 313, Cr.P.C. to explain the circumstances appearing against him in evidence, he denied that he was a dealer in cement. He further stated that he did not sell the cement bag to P.W.2 and he had no connection, whatsoever, with the 51 bags of cement seized. He also added that his signature in Exs.P.1 and P.5 were obtained later at the Police Station, on coercion. 5. The Trial Court found that the evidence of P.W.2 was not acceptable and, therefore, acquitted the appellant of the 1st count of the charge framed against him. In respect of the 2nd Count relating to the seizure of cement from the premises stated to be in the possession of the appellant, the trial Court accepted the evidence of P.Ws.1 to 7 and Ex.P.4, the analyst report, convicted the appellant and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-in default to undergo rigorous imprisonment for 4 weeks. 6. The point for determination in this appeal is whether the conviction recorded on the appellant by the trial Court is sustainable in law and on facts. 7. Mr.A.Natarajan, the learned Counsel for the appellant has challenged the conviction on the following grounds: (1) The prosecution had not carried out all the tests prescribed under Clause 2 of the Cement Quality Control Order, 1962 and had chosen to perform tests only in respect of 8 varieties of cement and the failure to perform tests in respect of other 2 specifications would entitle the appellant for an acquittal. (2) Even if the entire evidence let in by the prosecution were to be taken at its face value, there was no evidence to indicate that the appellant had either stored for sale, sold or distributed any cement, which was not of the prescribed standard. (3) Ex.P.4 the report of analysis will not be admissible in evidence and will have to be excluded, since it had not been proved in accordance with law. As a corollary to this argument, he has submitted that if Ex.P.4 were to be excluded, there was no proof that the cement was adulterated. 8. I have heard Mr.A.S.Chakaravarthy, the learned Government Advocate. 9. As a corollary to this argument, he has submitted that if Ex.P.4 were to be excluded, there was no proof that the cement was adulterated. 8. I have heard Mr.A.S.Chakaravarthy, the learned Government Advocate. 9. Let us now look into the evidence let in by the prosecution. The Trial Court having discorded the version of P.W.2, there is no proof of sale of cement by the appellant. P.W.3 to 5, who were examined to connect the appellant with storing of the cement in the premises, have not supported the prosecution and have been treated hostile. Therefore, except the evidence of P.Ws.1 and 7 regarding the seizure of 51 bags of cement from the premises inspected, there is no evidence whatsoever to hold that the appellant was either manufacturing or storing for sale, selling or distributing any cement which is not of the prescribed standard. Obviously, on the evidence let in, clause 3 of the Cement Quality Control Order is not attracted. This Court, on more than one occasion, had taken the view that 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 ten varieties prescribed in Clause 2(b) of the Cement Quality Control Order, before initiating prosecution. Of course, if there is any indication about the variety of the cement, then the relevant test alone should be carried out, which would be sufficient. In a case, where there is no indication of the variety of the sample as in the case on hand, 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. Two of the tests prescribed in the Clause 2(b) not having been performed, this appeal is bound to succeed on this ground as well. 10. The last ground strikes at the very foundation of the prosecution. Ex.P.4 has not been proved in accordance with law. Ex.P.4, the report of analysis has been marked through P.W.6 the Head Clerk of the trial Court. 10. The last ground strikes at the very foundation of the prosecution. Ex.P.4 has not been proved in accordance with law. Ex.P.4, the report of analysis has been marked through P.W.6 the Head Clerk of the trial Court. Sec.293 of the Cr.P.C. permits reports of certain Government Scientific Experts, to which that section applies, to be used as evidence in any enquiry, trial or other proceeding under this Code, without examination of the expert, unless the Court thought it fit to summon and examine him as to the subject matter of the report. Sec.293 applies to the Government Scientific Experts enumerated in Clause (4) of this section. Sec.293(4) reads as hereunder: "4. This section applies to the following Government scientific experts, namely: (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives; (c) the Director of Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) theDirector (Deputy Director or Assistant Director) of a Central Forensic Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government". Ex.P4 has been signed by some person for the Joint Director (Chemicals). The report shows that analysis had been conducted in the Department of Industries and Commerce, Chemical Testing and Analytical Laboratory, Industrial Estate, Guindy, Madras. Ex.P4 is stated to be the test certificate containing test results. The signatory to Ex.P4 who himself appears to be not Joint Director, does not fall within the category of the Scientific Experts enumerated under Sec.29(4), Criminal Procedure Code. It is also not claimed by the prosecution that the Chemical Testing and Analytical Laboratory is a State Forensic Laboratory. Ex.P4 has to be proved in accordance with law by examining the author, who would be subjected to cross-examination by the accused. Ex.P4 has to be excluded in law. As rightly pointed out by the learned counsel for the appellant, if Ex.P4 is excluded, there is nothing on record to show that the cement bags contained adulterated cement. 11. In view of my discussion aforementioned this appeal is allowed and the appellant is acquitted. The fine, if any, paid by him shall be refunded.