J. N. BHATT, J. ( 1 ) THE appellant is convicted and sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs. 500 and in default to undergo simple imprisonment for 15 days by the Special Judge Amreli on 31. 5. 1984 in Criminal Case No. 4 of 1983 for the offence punishable under section 7 (1) (ii) of the Essential Commodities Act 1955 (Act for short hereinafter) and in this appeal under section 374 of the Criminal Procedure Code 1973 (Code for short ). the appellant has challenged its legality and validity. ( 2 ) A few relevant and material facts giving birth to the present appeal may be shortly stated at the outset. The appellant who is the original accused was present in the shop of one Harjivandas situated at village Kotdapith on 19. 4. 1983 when the Mamlatdar of Babra Mr. J. G. Pandya all of a sudden visited the shop. The prosecution alleged that the Mamlatdar found that the appellant/accused had no licence for storing or keeping kerosene and despite that 41 litres of kerosene was found by the Mamlatdar from the said shop. The statement of the accused was recorded by the Mamlatdar which is produced at Ex. 8. The District Supply Officer sanctioned the prosecution against the accused and therefore Mr. Pandya Mamlatdar filed the complaint before the police and on investigation the accused came to be charge-sheeted for having committed offence punishable under section 3 read with section 7 of the Act in the court of the Special Judge at Amreli. The accused pleaded not guilty and claimed to be tried. Several contentions were raised in the trial court. However the trial court on analysis and appreciation of the evidence on record reached to the conclusion that the accused is guilty for the aforesaid offence and passed the sentencing order as aforesaid and hence this conviction appeal at the instance of the original accused. ( 3 ) ACCORDING to the prosecution case the accused had contravened the provisions of clause 16 of the Gujarat Petroleum Products (Licensing Control and Stock Declaration) Order 1979 (hereinafter referred to as the Order for the sake of convenience ). ( 3 ) ACCORDING to the prosecution case the accused had contravened the provisions of clause 16 of the Gujarat Petroleum Products (Licensing Control and Stock Declaration) Order 1979 (hereinafter referred to as the Order for the sake of convenience ). Clause 16 of the said Order reads as under: 16 Sale of petroleum products by retailer (1) No retailer shall sell any kind of petroleum products to any person - (a) other than a person who is not a dealer and (b) except in accordance with the provisions of this Order and the terms and conditions of a licence held by him under this Order. (2) No retailer shall sell at any one time any kind of petroleum products in excess of the limits fixed by (a) the State Government or as the case may be the Director of Civil Supplies or (b) a Collector of a district or the Food and Civil Supplies Controller Ahmedabad City or the licensing authority within whose jurisdiction or as the case may be the jurisdiction of which retailer carries on his business: provided that where no such limit is fixed the limit shall be (i) for kerosene : one tin of 18. 5 litres. (ii) for light diesel oil : one barrel of 220 litres. (iii) for high speed diesel oil : one barrel of 220 litres. ( 4 ) IT is an admitted fact that the State Government or the Collector had not fixed any limit in respect of sale of petroleum products. Therefore in absence of any limits so fixed the proviso was operative. According to the proviso in so far as the essential commodity i. e. kerosene the limit was 1 tin of 18. 5 litres at the relevant time. Upon raid the Mamlatdar found 41 litres of kerosene from the accused in the said shop. Therefore the prosecution contended that there was violation of the provisions of section 16 (2) (i) of the proviso. Therefore there was violation of the ceiling prescribed in the proviso (i) to sub clause (2) of clause 16 of the Order and such contravention is punishable under section 7 of the Act. This version of the prosecution found favour with and upheld by the learned Special Judge. Therefore there was violation of the ceiling prescribed in the proviso (i) to sub clause (2) of clause 16 of the Order and such contravention is punishable under section 7 of the Act. This version of the prosecution found favour with and upheld by the learned Special Judge. ( 5 ) IT has been contended that the prosecution has failed to prove the requirement mentioned in clause 25 of the Order in so far as the declaration of stock is concerned. It is pointed out from the evidence of the prosecution witness No. 1 Mr. J. G Pandya who is examined at Ex. 7 that he had not ascertained and inquired as to when the impugned stock was obtained. He has also admitted in the cross-examination that a person is entitled to retain stock and has to inform within 2 days from the date of the acquisition of the stock So is the provision in clause 25 of the said Order. 7 that he had not ascertained and inquired as to when the impugned stock was obtained. He has also admitted in the cross-examination that a person is entitled to retain stock and has to inform within 2 days from the date of the acquisition of the stock So is the provision in clause 25 of the said Order. It would be therefore necessary to refer to the said clause 25 of the Order at this stage: which reads as under:"25 Declaration of Stock by person every person not being a dealer or oil company or a bulk consumer who at the commencement of this Order or at any time thereafter holds in his possession or under his control any one kind of petroleum product in excess of the limits fixed under sub-clause (2) of clause 16 or as the case may be; the limits specified in the proviso to the said sub-clause (2) shall within three days after such commencement and thereafter within two days from the time whenever the quantity of each kind of petroleum product exceeds such limit make a declaration in writing to the concerned licensing authority showing therein his name address and quantity of each kind of petroleum product in his possession or under his control: provided that such person shall not hold stock of any kind of petroleum product inquantity exceeding such limit beyond a period of fifteen days after such declaration in his possession or under his control without obtaining the prior permission therefor from the licensing authority: provided further that where the licensing authority grants under the first proviso permission to a person to hold in his possession or under his control stock of any kind of petroleum product exceeding the limits aforesaid such person shall make on or before the fifth day of every month a declaration of stock in writing to the licensing authority showing therein his name and address and the quantity of the petroleum product held by him". ( 6 ) IT is an admitted fact that the appellant was not the owner of the said shop He was found present in the shop of one Harjivandas Apart from that the accused was not a licensed dealer Therefore like any other person he was supposed to make declaration of stock within the time prescribed in clause 25 of the Order and in order to bring home the guilt of the accused it was incumbent upon the prosecution to show that there was a breach of the time limit prescribed in clause 25 of the Order in not declaring the acquisition of the said stock which is in excess of 18. 5 litres. It is an admitted fact that the prosecution has not proved that the extra quantity of essential article i. e. kerosene found from the shop was acquired by the accused beyond the limit that is 2 days as prescribed in clause 25 of the said Order. In the absence of any such evidence the impugned order cannot be sustained Therefore it is required to be quashed ( 7 ) IN view of the facts and circumstances narrated herein before and considering the relevant provisions of the said Order this court has no hesitation in holding that the impugned conviction and sentence order is perverse and bad in law. Therefore it is hereby quashed ( 8 ) IN the result the accused is held not guilty for the offence charged against him and consequently the impugned conviction and sentence order is quashed and set aside The amount of fine if paid shall be refunded to the accused/appellant Bail bonds shall stand cancelled. The appeal is allowed accordingly. Appeal Allowed. .