S. D. JHA, J. ( 1 ) CONVICT/appellants Kalyanmal S/o Babulal and Mahesh Chandra Sb Punamchand (here-in-after called, the accused) challenge their conviction dated 13. 6. 1986 under Ss. 3/7 of the EC Act, 1955 (here-in-after called,t the Act) and sentence of three months RI each and fine of Rs. 1500/- each in default of payment of fine further RI for 15 days each awarded in summary trial by the Sessions Judge, Indore acting as Special Judge under Section 18a and S. 12-AA (f) of the Act. ( 2 ) THE prosecution story is that M/s. Manoj Trading Company is a Partnership Firm of which accused/appellant Kalyanmal S/c Babulal is a partner. The firm holds a Licence No. 28/78 under the M. P. Sugar Dealers Licensing Order, 1963. On 5. 9. 1982, Sunday when the shop was closed, Food Inspector K. L. Birle (P. W1) on orders of the Collector of the district, accompanied by Tehsildar Sanwer Shri Purohit and T. I. Chouhan (both not examined by the prosecution) checked the shop of the firm. Being Sunday as the shop was closed, Kalyanmal the accused was called and the shop got opened and checked. Stock register and price-list showed 7 bags of sugar and also that there was receipt of 120 bags of sugar of which 60 bags were claimed to have been purchased from outside. No bill or receipt in respect of these 120 bags of sugar was produced at the time of checking. 7 bags of sugar were have been claimed to have purchased locally but in that respect also no bill or receipt was produced. During checking on 5. 9. 1982 the opening stock in the stock register on 6. 9. 1982 in relevant column was shown to be 7 quintals. The Food Inspector was of the view that there was contravention of condition No. 3 of the licence issued to the Firm under M. P. Sugar Dealers Licensing Order, 1963. He, therefore, effected seizure of the stock register, stock exhibition list prepared Panchanama and submitted the report to Collector, Indore for further action. Challan was thereafter put up against the accused persons in the Court of ACJM Indore who later on submitted the case to the Special Court (Sessions Judge, Indore ). On 14. 9. 1983, the Special Judge explained the particulars of the offence to the accused persons alleging that in the checking on 5. Challan was thereafter put up against the accused persons in the Court of ACJM Indore who later on submitted the case to the Special Court (Sessions Judge, Indore ). On 14. 9. 1983, the Special Judge explained the particulars of the offence to the accused persons alleging that in the checking on 5. 9. 1982 opening stock on 6. 9. 1982 was shown and bills regarding purchase of Sugar were not produced and these constituted breach of condition No. 3 of the Licence issued under thee M. P. Sugar Dealers Licensing Order, 1963 and this was punishable under S. 3/7 of the EC Act, 1955. The two accused pleaded not guilty. The prosecution examined Food Inspector, K. L. Birle (P. W. 1), Ishwar Das attesting witness to Panchanama Ex. P/1 and Seizure memo, Exh. P/2 and Smt. Madhu Kapoor, SDM who forwarded Food Inspectors report EX. P/6and EX. P9 to the Station Officer, Central Kotwali, Indore for further action. Accused Kalyanmal in his examination stated that the day of checking was Sunday, for 60 bags of sugar bilty was there. The opening stock for 6. 9. 1982 was shown as 5. 9. 1982 was a Sunday. On Sunday 120 bags of sugar were received and these were properly explained and entered in the register. The bill or receipt for 60 bags could not be produced as the same had till then not been received. Similar plea was also raised by Maheshchandra the other accused. They did not examine any witness in defence. The Special Judge found them guilty and convicted and sentenced them as stated above. ( 3 ) AT the hearing of the appeal Shri H. S. Oberci learned counsel representing the accused/appellants submitted that accused Kalyanmal had in his statement made at the time of checking itself recorded by the Food Inspector explained that 60 bags of sugar had come from Sahakari Sakkar Karkhana Distt. Ahmadnagar and dispatched from that place on 3. 9. 1982. These 60 bags were received in his absence at the shop. The other 60 bags were purchased from Vasudeo Moclchand Ware House Indore and the receipt and bill in respect of the same would be produced. This statement made immediately had its own importance. Learned counsel for the accused/appellants challenged the conviction urging that the prosecution evidence did not bring home the charge against the accused persons. The other 60 bags were purchased from Vasudeo Moclchand Ware House Indore and the receipt and bill in respect of the same would be produced. This statement made immediately had its own importance. Learned counsel for the accused/appellants challenged the conviction urging that the prosecution evidence did not bring home the charge against the accused persons. There was nothing on record to show that it was obligatory for the accused persons to produce railway receipt or receipt in respect of purchase of sugar or that by not doing so the accused persons had committed breach of conditions of the licence. ( 4 ) SHRI Chouhan learned Dy. Govt. Advocate and later Shri Kutumbale learned Govt. Advocate defended the impugned judgment. Shri Kutumbale submitted that bilty in respect of purchase of sugar produced later were not put to Food Inspector. He urged for dismissal of the appeal. ( 5 ) THE prosecution of the case leaves much to be desired. The allegation against the accused persons is that by not producing bilty or receipt in respect of purchase of sugar they had contravened condition No. 3 of the licence issued to Manoj Trading Company of which accused Kalyanmal is admittedly a partner. About the other accused, Maheshchandra there is no allegation as to how he is sought to be fastened with liability. In whole of the case there is no allegation or statement that he is a partner of the firm M/s. Manoj Trading Company which holds the licence under M. P. Sugar Dealers Licensing Order, 1963. ( 6 ) THE allegation is breach of condition No. 3 of the licence. Surprisingly, the licence is not proved or exhibited as prosecution document on record. In absence of that it is difficult to appreciate how by not producing the receipt, the, accused persons can be said to have committed breach of condition No. 3 of the licence. At one stage, Shri Chouhan, learned Dy. Govt. Advocate argued that the existence of licence and the conditions therein were not disputed by the accused persons and therefore, by not producing bilty or receipt in respect of sugar found in the god own and breach of conditions of the licence be held established against the accused persons. In a criminal case, when the accused have pleaded not guilty, such approach is untenable. In a criminal case, when the accused have pleaded not guilty, such approach is untenable. The burden of proving every ingredient to bring home the charge against accused lies on the prosecution and the prosecution cannot claim that by inference the accused be adjudged guilty. Under S. 61 of the evidence Act the contents of documents may be proved either by primary or by secondary evidence. 5. 62 inter alia explains that primary evidence means the document itself produced for inspection of the Court. S. 63 explains secondary evidence. S. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned there in after. S. 65 following S. 64 of the Evidence Act lists the cases in which secondary evidence may be given of the existence, condition or contents of a document. ( 7 ) IT is not the case of the prosecution that conditions as to leading secondary evidence relating to licence hold by the Firm have been made out. In fact, no, secondary evidence has been led except a bare statement that by not producing bills or receipts condition No. 3 of the licence have been contravened. At one stage reference was made to Form 'b' which is the prescribed Proforma for licence issued under sub-clause (2) of Clause 4 of the M. P. Sugar Dealers Licensing Order, 1963. As already stated above, in absence of foundation having been laid for leading such secondary evidence in terms of 5. 65 of the Indian Evidence Act, 1872 such recourse to the Form 'b' would not be permissible. ( 8 ) APART from the foregoing Exh. P/4 is a copy of the stock register. It showed receipt of 120 bags of sugar while also noted that transitions were current. K. L. Birle (PW1) in para 2 of his deposition admitted that of the 120 bags in respect of 60 bags bilty was produced but later in para 4 he stated that no bill in respect of 120 bags produced. In cross-examination para 9 he admitted that accused Kalyanmal had explained the source from which 120 bags of sugar were received. In para 11 he denied knowledge whether bill or receipt in respect of sugar from Sugar Factory has been received or not. He also admitted that on 5. 9. In cross-examination para 9 he admitted that accused Kalyanmal had explained the source from which 120 bags of sugar were received. In para 11 he denied knowledge whether bill or receipt in respect of sugar from Sugar Factory has been received or not. He also admitted that on 5. 9. 1982 in the stock register at page 13 on portion 'b' to B there is entry regarding 60 bags of sugar from Vasudeo Moolchand Ware House and 60 bags of sugar from Gnyneshwar Sahakari Sugar Factory. In this state of admitted position regarding entries in the stock register by the Food Inspector himself and in absence of any material on record to show that the accused was bouna to produce receipt regarding purchase of sugar the contravention alleged against the accused persons cannot be said to have been made out. As already observed no foundation was laid for prosecuting the other accused. It was not suggested or proved that other accused Maheshchandra was a partner of the firm M/s. Manoj Trading Company so as to fasten him with liability regarding allegedly unexplained sugar found in the shop. ( 9 ) AS a result of the aforesaid discussion, the conviction and sentence imposed against the accused persons are set aside and the appeal allowed. Fine if paid, shall be refunded. Bail bonds of the accused, who are on bail are hereby discharged. Appeal allowed. .