JUDGMENT (ORAL) Ashok Agarwal, J. - Criminal Appeal No.9 of 1987 is filed by the accused seeking to impugn an order of conviction and sentence passed against him on the 26th of November, 1986 by the Special Judge, Solapur in Criminal Case No. 11 of 1986. By the said order, the accused is convicted of an offence punishable under Section 7 read with Section 3 of the Essential Commodities Act and is sentenced to suffer simple imprisonment till the rising of the Court and to pay fine of Rs. 500/- in default to suffer simple imprisonment for three months. Criminal Revision Application No.9 of 1987 arises out of a suo moto notice of enhancement of sentence which is issued by this Court at the stage of admission of the appeal. Both the above proceedings are being disposed of by the present judgment. 2. The incident in question has taken place on the night of the 9th and 10th November, 1985. The accused runs a ration shop at village Savadi. Amongst other articles, he sells levy sugar to ration card holders. It is the case of the prosecution at villagers were annoyed with the accused since he, instead of selling them the levy sugar, was selling the same to private shop owners in black market. The villagers, especially young students, kept a watch on the activities of the accused. At the relevant time, they found two persons which includes P.W. 5 Sahebrao Ekad, carrying bags on their heads. They were followed by P.W. 4 Murlidhar Mahamuni, who conducts a grocery shop in the said village. According to the prosecution, the levy sugar which was originally stored in a hundred kilo bag was transferred by the accused in two bags of 50 Kgs. each and the same was sold by the accused to Murlidhar Mahamuni and was being carried to the shop of Murlidhar Mahamuni. P.W. 6 Dilip Deshmukh, who was one of the students, keeping a vigil, alerted the rest of the students who were keeping a watch by blowing a whistle. The students arrested Sahebrao, his co-carrier and Mahamuni and retained the sugar bags. A panchanama (Exhibit 10) was prepared on the spot. Since it was raining, the sugar bags were kept at the Gram Panchayat office in charge of village Kotwal. The students arrested Sahebrao, his co-carrier and Mahamuni and retained the sugar bags. A panchanama (Exhibit 10) was prepared on the spot. Since it was raining, the sugar bags were kept at the Gram Panchayat office in charge of village Kotwal. P.W. 2 Dadasaheb Gayakwad, the Sarpanch of the village, came on the scene at the time of the panchanama. The Sarpanch lodged his report (Exhibit 9) at the police station. P.W. 7 Bhauslilieb Pardhi, who was incharge of the Karmala Police Station, received the report (Exhibit 9) alongwith the Panchanama (Exhibit 10). He seized the sugar under a fresh panchanama (Exhibit 7), which was prepared in the presence of Panch Witness P.W. 1 Silkhadeo Shelke. After completing investigation, A.S.I. Pardhi lodged his complaint (Exhibit 16). On these facts, the accused was prosecuted for having sold levy sugar to a local merchant in black market. 3. Accused pleaded not guilty. His defence was one of total denial. According to him he has been maintaining proper registers and accounts in respect of sale of rationed articles. The stock in his fair price shop has always been found to be in order. The accused has further gone on to state, that the Sarpanch Dadasaheb Gayakwad is on inimical terms with him since he refused to oblige him with free grocery. According to the accused the prosecution witnesses have deposed against him at the instance of the Sarpanch. 4. On an appraisal of the aforesaid evidence, the learned Judge of the trial Court has proceeded to record an order of conviction and sentence against the accused. The same is impugned in the present appeal. 5. I have with the assistance of Shri Mane, the learned Advocate appearing on behalf of the accused and Shri Bagwe, the learned Public Prosecutor, gone through the entire evidence on record. I have heard each of them in support of their rival contentions. In my view, the impugned order of conviction and sentence cannot be sustained for the following reasons. 6. In the present case, the prosecution has failed to lead any evidence to establish that what was alleged to have been sold by the accused to Mahamuni was levy sugar. It is true that the incident, as alleged by the prosecution, is in the middle of the night. This may at best lead to a grave suspicion against the accused. In the present case, the prosecution has failed to lead any evidence to establish that what was alleged to have been sold by the accused to Mahamuni was levy sugar. It is true that the incident, as alleged by the prosecution, is in the middle of the night. This may at best lead to a grave suspicion against the accused. However, suspicion cannot take the place of proof which is essential for bringing home a guilt in respect of a criminal offence against an accused. 7. The sugar which was seized by the students on the night in question, by drawing up a panchanama (Exhibit 10), since it was raining, was not retained at the place of seizure but was kept at the Gram Panchayat office under the supervision of the Village Kotwal. The said village Kotwal has also not been examined by the prosecution. Hence, there is no guarantee that the sugar which was seized by A.S.I. Pardhi under Panchanama (Exhibit 7) was the very sugar which was seized by the students under panchanama. (Ex. 10) 8. The sale by accused in the instant case is made in favour of P.W. 4 Murlidhar Mahamuni. Mahamuni is, therefore, an accomplice in respect of the present offence. Similarly, P. W. 5 Sahebrao Ekad has helped Mahamuni in carrying the levy sugar and thanoo in the middle of the night. He also, therefore, must have shared the guilty mind and he is also an accomplice. Their evidence cannot be accepted unless the same receives corroboration on material particulars. The corroboration, if any, is available from the evidence of die students, P.W. 3 Baban Ekad and P.W. 6 Dilip Deshmukh. Their evidence, however, can only corroborate the fact that Murlidhar Mahamuni and Saheb Ekad were found carrying the sugar on the night in question. Their evidence will not corroborate the sale by accused to Mahamoni, that too sale in respect of levy such. In black market. 9. P.W. 2 Dadasaheb Gayakwad, who is the Sarpanch, was called by the students, he, in turn, has prepared his report (Exhibit 9) and forwarded the same alongwith the panchanama (Exhibit 10) at the police station. The incident in question is alleged to have taken place in the night at about 2.30 a.m. of the 10th of November, 1985. 9. P.W. 2 Dadasaheb Gayakwad, who is the Sarpanch, was called by the students, he, in turn, has prepared his report (Exhibit 9) and forwarded the same alongwith the panchanama (Exhibit 10) at the police station. The incident in question is alleged to have taken place in the night at about 2.30 a.m. of the 10th of November, 1985. An endorsement which appears on the report of the Sarpanch (Exhibit 9) shows that the same is received at the police station on the night of the day of the incident i.e. on the 10th of November, 1985 at 21.10 hours. According to the version of A.S.I. Pardhi, he received the report (Exhibit 9) alongwith the panchanama (Exhibit 10) and thereafter he seized the sugar under Panchanama (Exhibit 7). The Panchanama (Exhibit 7) bears an endorsement that the same is prepared on the 10th of November, 1985 between 12.00 noon to 12.30 noon, which is much prior to the receipt of the report of the Sarpanch at the police station. The panchanama (Exhibit 10) contains a recital that the Sarpanch is present at the time of the drawing of the panchanama. However, as per the version of the Sarpanch himself he was not present at that time. In addition to the above lacunae we have a vital admission given by A.S.I. Pardhi. He has admitted that in ration shop of the accused he found 410 Kgs. of sugar and the same tallied with the stock register and the sale register. In view of the above state of evidence it would be hazardous to up-hold the impugned order of conviction and sentence which has been imposed upon the accused. The accused is, therefore, entitled to an order of acquittal. In the circumstances, the appeal No. 19 of 1987 succeeds. The order of conviction and sentence passed against the accused on the 26th of November, 1986 by the learned Special Judge, Solapur in Criminal Case No. 11 of 1986 is set aside and the accused is acquitted. Fine if paid shall be refunded to the accused. 10. In view of the aforesaid order, Criminal Revision Application No.9 of 1987 does not survive and the same is rejected. The Notice for enhancement of sentence is discharged. Appeal allowed.