JUDGMENT A.D. Mane, J. - These two appeals are preferred by the original accused Nos. 1 and 2 respectively against their conviction under Sections 3 and 7 of the Essential Commodities Act and sentence of Rigorous Imprisonment of 6 months and fine of Rs. 500/- in default further R.I. for one month each, passed by the learned Special Judge, Ahmednagar in Criminal Case No. 8/84. 2. The brief facts of the case are as under. Accused No.1 runs a Provisional Store in village Balam Takali. He possesses requisite licence of whole-sale dealer for supply of kerosene to retailers. On February 4th, 1984 at about 11.30 p.m., the accused No.2 was found to be transporting in a bullock cart an oil barrel containing 200 liters of kerosene from the shop of accused No.1. The said bullock cart was intercepted by P.W.3 Asaram Bafna on suspicion that the accused No.2 had purchased the kerosene from the accused No.1 in a black market unauthorisly. P.W.3 Asaram, who has his shop near about the shop of the accused No. 1, then promptly got in touch with office of the Tahsildar at Shevgaon on phone. P.W.2 Jagannath cite, the Circle Inspector of Shevgaon Tahsil, came with his staff to the shop of accused No. 1 at about 4-50 p.m. and attached the barrel containing kerosene and handed it over in custody of the Talathi. At the same time, he recorded statements of accused Nos. 1 and 2. Accused No.1 had told that the Kerosene in the barrel was sold to P.W.7 Ganpat Kurhe of village Kambi on February 2nd, 1984 and it was being sent to him in the cart hired from the accused No.2. In that behalf he produced the chit (Exh. 11). The accused No.2 had told that he was carrying barrel of kerosene to Ganpat Kurhe on hire for Rs. 15/-. Thereafter stock register (Exh.7) and cash memo register (Exh. 8) were seized from the shop of accused No.1. On the report of the Circle Inspector, further enquiry was held by the P.W.1 Prabhakar Sesane, Supply Officer, who has inspected the shop of P.W.7 Ganpat Kurhe with assistance of a member of Vigilance Committee, P.W.4 Vithal Gude on February 6th, 1984. Thereafter stock register (Exh.7) and cash memo register (Exh. 8) were seized from the shop of accused No.1. On the report of the Circle Inspector, further enquiry was held by the P.W.1 Prabhakar Sesane, Supply Officer, who has inspected the shop of P.W.7 Ganpat Kurhe with assistance of a member of Vigilance Committee, P.W.4 Vithal Gude on February 6th, 1984. On inspecting the stock register of P.W.7 Ganpat Kurhe, it transpired that he had on February 2nd, 1984, received 200 liters of Kerosene from accused No.1 and he had distributed 29 liters of Kerosene oil since February 6th, 1984. Thus on March 1st, 1984, P.W.1 Supply Officer filed his complaint (Exh. 16) to police, Shevgaon inter alia alleging that accused had committed offence punishable under the Essential Commodities Act, 1955 for contravening the provisions of the Maharashtra Kerosene Dealers' Licensing Order, 1966 (in short, Order). 3. On considering the evidence from the prosecution, the learned Trial Judge did not accept the defence of the accused that the barrel containing 200 liters of Kerosene which was being transported, was sold to P.W.7 Ganpat Kurhe on February 2nd, 1984. The learned Trial Judge was of the view that evidence of P.W.7 Ganpat and his brother P.W.6 Sarjerao shows that they had nothing do with the purchase of barrel containing 200 liters of kerosene which was being transported in the bullock cart of accused No.2 on that day: It was found that on February 4th, 1984, there was no stock at the shop of accused No.1 and in absence of any explanation for 200 liters of kerosene, which was being transported by the accused No.2 from the shop of accused No.1, in the opinion of the learned Trial Judge, accused No.1 was not properly maintaining the stock and has had fraudulent dealing in kerosene in black market. Thus it was held that prosecution succeeded to prove that accused No.1 sold 200 liters of Kerosene oil to the accused No.2 on that day although the accused No. 2 had no licence to purchase. That deal was in contravention of the Order and hence offence punishable under Section 3 read with Section 7 of Essential Commodities Act was established against the accused. 4. It may be stated that Shri Yevtekar, the learned counsel for the appellants, has taken me through the entire evidence in the case. That deal was in contravention of the Order and hence offence punishable under Section 3 read with Section 7 of Essential Commodities Act was established against the accused. 4. It may be stated that Shri Yevtekar, the learned counsel for the appellants, has taken me through the entire evidence in the case. In the first place, it has been argued that what has been established in the evidence of prosecution is a mere fact that the accused No.2 was found transporting in his bullock cart of an oil barrel containing 200 liters of kerosene from the shop of accused No. 1. There is, however, no evidence to show that accused No.1 sold the kerosene at excess price than the price fixed by the government. The prosecution has also not adduced any evidence to show that the accused No.2 carries business of sale purchase or storage of kerosene without a licence. It has also been urged that admittedly and entries in the stock register of accused No.1's shop undoubtedly shows that though no stock of kerosene oil was in his shop on the opening of day's business of February 4th, 1984 and, therefore, the entry in the stock register that 200 liters of kerosene oil was sold to P.W.7 Ganpat Kurhe on February 2nd, 1984 assumes importance, especially when there is no evidence to show that the entries in stock register are either false or irregular. In this context, emphasis is laid on the defence of the accused arid it has been submitted that the accused had disclosed the defence immediately and evidence of P.W.6 Sarjerao Kurhe and his brother P.W.7 un Ganpat Kurbe ought not to be believed inasmuch as there was a scope for them to manipulate the stock register to show the receipt of 200 liters of kerosene from the accused No.1 on February 2nd, 1984. In this context, it is also pointed out that evidence does not disclose that any panchanan of the stock of oil was made of physical stock was taken of either of the shop. In the circumstances, there existed a reasonable doubt in the prosecution case and benefit of the doubt should have been given to the appellants. 5. In this context, it is also pointed out that evidence does not disclose that any panchanan of the stock of oil was made of physical stock was taken of either of the shop. In the circumstances, there existed a reasonable doubt in the prosecution case and benefit of the doubt should have been given to the appellants. 5. It has also been contended by the learned counsel for the appellants that taking into account the nature of evidence and the circumstance which has been proved in the evidence about the accused No. 2 transporting in his bullock cart an oil barrel containing 200 liters of kerosene without there being any evidence of sale of kerosene oil by accused No.1 to the accused No.2, on offence can be said to have been committed by either of the accused for mere preparation since sale of kerosene was not completed. 6. Shri Wagh, the learned Additional Public Prosecutor, on the other hand, supported the finding of the conviction of the learned Trial Judge. In order to show that there was a complete sale of the kerosene oil by accused No.1 to the accused No.2, he has relied upon entry dated February 4th, 1984 in cash memo which is over-written to show that the cash memo pertains to the very transaction for sale of 200 liters of kerosene oil by accused No.1 to the accused No.2. It has been submitted that even if there is no evidence to show that kerosene oil was sold at excess price than the price fixed by the Government, according to the learned Additional Public Prosecutor, accused No.1 can be said to have contravened the clause 4 of the Order in not maintaining true and proper accounts of sale of kerosene under the licence. Therefore, it has been urged that there would arise notable doubt in the prosecution case. 7. It is common ground that unless it is established that there has been contravention of clauses 3 and 4 of the Order, there would arise no question of the accused committing any offence punishable under Section 3 read with Section 7 of the Essential Commodities Act. Clauses 3 and 4 of the Order read as under "(3) - The licensee shall not sell kerosene exceeding the maximum price prescribed by the Government and shall permanently display a notice stating the maximum price. Clauses 3 and 4 of the Order read as under "(3) - The licensee shall not sell kerosene exceeding the maximum price prescribed by the Government and shall permanently display a notice stating the maximum price. (4) - the licensee shall maintain true and proper accounts of all purchases and sales of kerosene and issue cash memos to customers purchasing quantity of kerosene of and above 100 liters in such form as may be specified by the licensing authority". The material evidence of P.W.1 Prabhakar Sasane is that "From the loading of the barrel in the cart of accused No.2, I felt that the kerosene was being sold to accused No.2 and was being transported by him to his village". Beyond this statement, there is no further evidence to show that actual sale or purchase of kerosene oil from the shop of accused No.1 by the accused No.2. In other words, there is absolutely no evidence to show that accused No.1 sold to the accused No. 2 the kerosene oil in contravention of clause 3 of the Order. 8. There is no merit in the submission of the learned Additional Public Prosecutor that the cash memo dated February 4th, 1984 on which there is over writing suggests that the cash memo was in the name of the accused No.2 for sale of 200 liters of kerosene on that day. That cash memo was neither relied upon by prosecution nor it has been made use of it by the prosecution during the trial. The prosecution got certain documents examined by the hand writing expert but no attempt was made to get his report in regard to the cash memo upon which reliance is placed in appeal for die first time. 9. The evidence of P.W.1 Prabhakar Sasane as well as evidence of P.W. 4 Vithai Gude does not show that any difference in stock of kerosene oil or irregularity in the accounts of stock register with' reference to cash memo register was noticed in the shop of accused No.1. On the contrary, the entries in stock register and the cash memo register are consistent and on that day, the stock of kerosene was nil in the shop of accused No.1. On the contrary, the entries in stock register and the cash memo register are consistent and on that day, the stock of kerosene was nil in the shop of accused No.1. It cannot be denied that accused No.1 has promptly explained in his statement before P.W.2 Jagannath Gite that the barrel containing 200 liters of kerosene was purchased on February 2nd, 1984 by P.W. 6 Cannot and it was being carried by the accused No.2 in his bullock cart on the basis of a chit (Exh.11) which he has produced before P.W.2 Gite. It may be stated that the entry in the stock register as well as cash memo register corroborates with defence cersion. The chit (Exh. 11) is signed by P.W.6 Sarjerao who is brother of P.W. 7 Ganpat. No inspection of the stock register of P.W.6 was made until February 6th, 1984. The possibility of manipulating the stock of 200 liters of kerosene which he has purchased on February 2nd, 1984 of which he had not taken delivery till February 6th, 1984, can not be ruled out inasmuch as it was not unlikely for him to get additional stock of kerosene from other sources and showing that it was purchased from the shop of accused No.1 on February 2nd, 1984. It is an admitted fact that the chit (Exh. 11) is in the hand of P.W.6 Sarjerao who is the brother of Ganpat. P.W.6's version that he has nothing to do with the business of his brother P.W. 7 Ganpat is difficult to believe. There is also conflict in their evidence. P.W.7 Ganpat has stated that on February 2nd, 1984, the oil barrel containing 200 liters of kerosene which he purchased from accused No.1 was brought by Sarjerao in bullock cart but Sarjerao in his evidence said that he has not once brought kerosene oil from the shop of accused No.1. In the absence of any evidence that the entries in stock register in relation to cash memo register were incorrect and where it is apparent that accused No.1 would not have any kerosene in his shop on February 4th, 1984, it is difficult to accept that he could have sold the aforesaid 200 liters of kerosene to the accused No.2. In the absence of any evidence that the entries in stock register in relation to cash memo register were incorrect and where it is apparent that accused No.1 would not have any kerosene in his shop on February 4th, 1984, it is difficult to accept that he could have sold the aforesaid 200 liters of kerosene to the accused No.2. The defence of the accused, in the given circumstances, appears to be probable and in that event, I agree with the submission of the learned counsel for the appellants that there exists a reasonable doubt in the prosecution case and the benefit of doubt must be given to the accused. 10. The matter can be considered from another angle in the light of the submission of the learned counsel appearing for the appellants that there was no complete sale of 200 liters of kerosene oil by the accused No.1 to accused No. 2. It is no doubt true that nowhere in the. Essential Commodities Act, a concept or sale and purchase is defined. Therefore, no special or different meaning can be attached with regard to statutory sale, as general law of sale and purchase of goods would be equally applicable. Under Section 32 of the Sales of Goods Act, in the absence of anything to the contrary, expressed under the agreement, the delivery of goods and payment of purchases are concurrent conditions. The tender of price and delivery of goods must be simultaneous. There is admittedly no evidence to show that the accused No.2 paid any price towards the purchase of 200 liters of kerosene oil to accused No.1 nor is there any evidence to show that price was paid in excess of the price prescribed by the government. The unilateral act of the accused No. 1 in giving delivery of a barrel containing 200 liters of kerosene oil to accused No. 2 in his cart for transporting is insufficient to hold that there was sale of kerosene oil. Indeed such a sale would be incomplete sale. That act of accused No.1, at the most, can be termed as a mere preparation to sell 200 liters of kerosene oil with the help of the accused No.2 who is a mere cartmen. Indeed such a sale would be incomplete sale. That act of accused No.1, at the most, can be termed as a mere preparation to sell 200 liters of kerosene oil with the help of the accused No.2 who is a mere cartmen. In such a situation no offence can be said to have been committed for mere preparation for which reference can be made to decision in case of The State of Madhya Pradesh v. Narayan and others,1. 11. I have already pointed out that there is absolutely no evidence to show that accused No.1 has not maintained true and proper accounts of all purchases and sales of kerosene or issue of cash memo to customers purchasing quantity of kerosene of and above 100 liters in requisite form under the licence. The stock register and the case memo register seized by P.W.1, during his enquiry, evidence shows, do not contain any differences in the stock of kerosene oil at the shop of accused for any 1. (1989) 3 S.C.C. 596 . period preceding the date of the incident On the contrary, the entry in stock register and cash memo register is consistent with the defence of having sold 200 liters of kerosene oil to P.W.6 Ganpat Kurhe on February 2nd, 1984. In that view of the matter, it cannot be said that there has been any contravention of clause.4 of the Order. 12. It appears that the learned Trial judge was impressed by the evidence of P.W.3 Asaram Bafna and the evidence of P.W.7 Ganpat and his brother P.W.6 Sarjerao. But as discussed above, their evidence is of little assistance to the prosecution to prove essential ingredients of the offence complained of 1Jgainst the accused. P.W.3 Asaram could not dispute that his son's licence for kerosene was cancelled and it was allotted to accused No.1 and, therefore, when he stated that he obstructed the bullock cart carrying one barrel of keroserie oil by the accused No.2 on suspicion that the accused No.1 sold it to him unauthorisedly, receives little credence. Similarly the evidence P. W.6 Ganpat and his brother Sarjerao, who is the author of on it (Exh. 11) would not inspire confidence inasmuch as they are also equally interested to safeguard their own interest, when it was found that they are in possession of excess stock of kerosene oil in their shop. 13. Similarly the evidence P. W.6 Ganpat and his brother Sarjerao, who is the author of on it (Exh. 11) would not inspire confidence inasmuch as they are also equally interested to safeguard their own interest, when it was found that they are in possession of excess stock of kerosene oil in their shop. 13. In the absence of any evidence to prove contravention of clause 3 or 4 of the Order, the learned Trial Judge, therefore, has failed, into an error in giving much importance to extraneous circumstances evident from the evidence of these witnesses. 14. The result, therefore, is that the conviction of the accused has been based on insufficient evidence and hence it cannot be sustained. 15. In conclusion, the appeals are allowed. The accused are acquitted. Their conviction and sentence is set aside. Their bail bonds stand cancelled. Appeals allowed.