JUDGMENT - S.M. DAUD, J.:---This appeal raises an interesting questions as to the meaning of the phrase "use in transaction for trade or commerce" occurring in section 2(ii) of the Bombay Weights and Measures (Enforcement) Act, 1958 hereinafter referred to as the "Act". 2. Respondents 2 and 3 are the owners of a concern doing business in the name of M/s. Thermo Plastic Industries, arraigned to this appeal as respondent No. 1. Complainant G.B. Pawar was working as an Inspector having been appointed as such under section 15 of the Act. The premises in which respondent No. 1 is located is at 78, Kalachowki Road, Lalbaug, Bombay 400 033. Pawar visited the said premises on 26-6-1981 at about 2.00 p.m. P.W.G.S. Tambe was with him and the two of them had come in a taxi hired from P.W. Mohd. Dawood. When Pawar and Tambe first stepped in, the only person present was respondent No. 2 Pawar flourished his identity card and called upon respondent No. 2 to allow him access to the factory. Going inside Pawar found a counter machine on which could be weighed goods upto the capacity of 5 kgs. Markings on it showed that it had been last stamped in the year 1969. Near the machine were six weights of cast-iron-the markings showing them to be of 2 kgs, 1 kg, 500 gms., 200 gms., 100 gms., and 50 gms. The weights of 2 kgs., 1 kg. and 500 gms had been last stamped in 1969. The stamping on the remaining three weights was not visible. Initially, there was a worker weighing something on the scale. Pawar was requested to and he deferred the examination of the machine and the weights, until the worker had completed his task. After an examination Pawar informed respondent No. 2 that offence punishable under various sections of the Act had been made out. Respondent No. 2 requested Pawar to wait till the arrival of respondent No. 3 who was his brother and was then taking lunch. Respondent No. 3 arrived a little later. He made no secret of his displeasure at what had been done by Pawar. Pawar was asked to get out and respondent No. 3 refused to answer questions put to him. In fact he went further and instructed his brother, respondent No. 2, to also refrain from giving any information to Pawar. The scale and weights were attached. He made no secret of his displeasure at what had been done by Pawar. Pawar was asked to get out and respondent No. 3 refused to answer questions put to him. In fact he went further and instructed his brother, respondent No. 2, to also refrain from giving any information to Pawar. The scale and weights were attached. Respondents No. 3 refused to sign the seizure memo and also declined to take a receipt testifying to the seizure. An endorsement of the conduct of respondents 2 and 3 was made on the seizure memo by Pawar. Ex. P-11 is the panchanama of the seizure. A copy of the receipt of seizure memo was sent by post to respondent No 1. In due course Pawar filed a complaint in the Court of Metropolitan Magistrate, Bombay. 3. Respondents 2 and 3 admitted that the scales and weights were not upto date. They denied that they had acted in the un-co-operative and boorish manner testified to by Pawar. It was their contention that the scales and weights were not being used for trade or commerce, but only for research purposes. 4. Admittedly no customers were present when the events enumerated in para 2 supra took place. To what use the scales and weights were being put by the respondents remains a mystery. In fact it is not even clear as to what was being weighed on the scale. Counsel at the bar say that the worker seen in action by Pawar was weighing some powder. The prosecution had to establish that the powder was being sold in that form whether loosely or in packs of particular weights. The Magistrate on the basis of the admission that there was no customer accepted the plea of the defence that the outdated scale and weights were not being used in transanctions for trade or commerce. Section 2(ii) of the Act defines the expression "use in transaction for trade or commerce" as means use for the purpose of determining or declaring the quantity of anything in terms of measurement of length, area, volume, capacity or weight in or in connection with- (a) any contract, whether by way of sale, purchase, exchange or otherwise; or... (b) the assessment of any work done or services rendered, otherwise than in relation to research or scientific studies or in individual households for household purposes. (b) the assessment of any work done or services rendered, otherwise than in relation to research or scientific studies or in individual households for household purposes. Section 25 of the Act prescribes a penalty whenever a person uses in any transaction for trade or commerce, or has in his possession for such use, any commercial weight or measure or any weighting or measuring instrument, which is not authorised or which has not been verified or reverified or stamped etc. etc. Therefore, the mere fact that the customers were not present when Pawar came to the factory would not absolve respondents of guilt. This is because where the place is used for trade or commerce it would give rise to presumption that the weights and machines kept there were in the possession of the respondents for use in trade or commerce. But for this purpose the complainant had to further establish that the scale and weights were being used or would have been used for weighing or measuring any product which they i.e. respondents were vending. Here, the evidence is so deficient that we do not even know what product was being manufactured and/or sold by the respondents. For all we know the machine and weights may have been kept for weighing something which went into the manufacture of the end product-that product not being known. If the machine and weights were used for preparing a mix or only one of the ingredients which went into the manufacture of what was being sold or exchanged, in other words used for the trade or commerce in which the respondents were engaged, the presumption from mere possession could not have been drawn. As the evidence stands, it does not lad to any conclusion wherefrom the inference of the seized articles being meant for use in trade or commerce can be drawn. 5. There is of course the tantrums of respondent No. 3 testified to by all the witnesses. The mere say-so of respondent No. 3 is not going to carry greater weight than the sworn testimony of complaint, Tambe and Mohd. Dawood. He did lose his temper and did refuse to co-operate with the complaint. In fact, Mohd. Dawood speaks of respondents 2 3 indulging in a heated exchange with the Inspector. They had gone further and threatened to file a case against Mohd. Dawood. Dawood. He did lose his temper and did refuse to co-operate with the complaint. In fact, Mohd. Dawood speaks of respondents 2 3 indulging in a heated exchange with the Inspector. They had gone further and threatened to file a case against Mohd. Dawood. This behaviour may be evidence of guilt but is also evidence of peevishness and this may have been on account of their being innocent. Therefore, on the basis of the behaviour no inference of guilt can be drawn against the respondents. Therefore, though for slightly different reasons than those which commanded themselves to the Magistrate. I have to confirm the verdict of acquittal. Hence the order. ORDER Appeal fails and is hereby dismissed. Appeal dismissed. -----