JUDGMENT : S.C. Mohapatra, J. - Short question is whether appellant contravened the Orissa Kerosine Control Order, 1962 (hereinafter referred to as 'the Control Order) made u/s 3 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') for being convicted and sentenced u/s 7 of the Act. 2. When learned Special Judge explained the parti ulars of the offence to accused in shape of a question recorded in the prescribed form for statement of accused u/s 313, Cr PC to the effect that accused possessed 28 litres of Kerosine on 1 5-9-1992 without licence and asked him if he confesses his guilt, accused while stating that he admits his guilt explained that the same was possessed by him for use in his hotel. With this answer, accused was convicted. Learned Special Judge passed the following order: "4-1-1993 : Accused is present. Particulars of the offence stated to him. He is asked if he pleads guilty or would like to contest the case. He pleads guilty. His statement is recorded. He is prosecuted for possession of 28 litres of Kerosine without any licence. The accused, admits possession of 28 litres of Kerosine and says that the same was for his personal consumption in his hotel. Orissa Kerosine Control Order prohibits possession of more than ten litres of Kerosine without a licence even for personal consumption. I, therefore, hold the accused guilty u/s 7 of the Essential Commodities Act for contravention of Orissa Kerosine Control Order and convict him thereon on admission. The minimum sentence prescribed by law is three months, I sentence the accused to undergo three months' rigosous imprisonment." Accused has preferred the appeal challenging this aforesaid extracted order. 3. Stamp Reporter of the Court pointed out a defect that appeal is not maintainable since conviction is based on confession. I shall deal with this question later. First of all it is to be seen whether accused has committed any offence by possessing 28 litres of Kerosine for use in his hotel as stated by him. 4. Kerosine is an essential commodity under the Act. State Government has made the Control Order in exercise of power u/s 3 of the Act. Under Clause 3, carrying on business as wholesale dealer or sub-wholesale dealer is prohibited except under and in accordance with terms and conditions of a licence granted on that behalf. 4. Kerosine is an essential commodity under the Act. State Government has made the Control Order in exercise of power u/s 3 of the Act. Under Clause 3, carrying on business as wholesale dealer or sub-wholesale dealer is prohibited except under and in accordance with terms and conditions of a licence granted on that behalf. Under Clause 7 carrying on business as a retail dealer is prohibited unless he has made an application in that behalf or he has been granted a certificate permitting him to carry on business as such dealer. Under Clause 8, licensing authorities have been delegated the power to regulate storage, distribution and sale of Kerosene by order notified in Gazette in respect of their respective jurisdictions State Government is a licensing authority for the entire State as defined in Clause 2 (d). In exercise of this power. State Government has directed that no person other than a dealer or an oil company shall store or have in his posse- ssion Kerosene in quantity exceeding ten litres at a time. This notification published in the Orissa Gazette Extraordinary No. 951 dated 24-6- 1982 is sought to be relied upon by learned Additional Standing Counsel to bring home guilt of the accused. It reads as follows : "S.R.O. No, 264/82 - In supersession of Food ft Civil Supplies Department Order No. 20213-PL. IC-26/79, dated the 3rd May 1979 as amended by order No 7635-PL. IC. 26/79, dated the 23rd February 1980, the, State . Government in exercise of the powers conferred by Clause 8 of the Orissa Kerosene Control Order, 1962 do hereby direct that no person other than. a dealer or an oil company shall store or have in his possession Kerosene in quantity exceeding ten litres at a time." 5. For considering whether accused has contravened the notification made under Clause 8 and has committed an offence u/s 7 of the Act, it is to be remembered that the Act has been brought to statute book providing in interests of the genera) public for control of the production, supply and distribution of and trade and commerce in essential commodities as reflected in the preamble. For maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability at fair price amongst others and for providing or regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein Government have been delegated the power u/s 3 (1) of the Act to make order in that respect. Specific provisions have bean made in Section 3 (2) of the Act in respect of matters for which orders can be made. Exercising this delegated power. State Government made the Control Order in the year 1962 and amended it from time to time. Careful perusal of the entire order leads to the conclusion that business in Kerosene is sought to be regulated in the order. For this purpose, as the order stands now, persons trading in Kerosene were divided into categories like retail dealer, sub-wholesale dealer, wholesale dealer and oil company. Under Clause 13 Oil Companies are excluded from the sweep of the Control Order only when they are functioning in Orissa and are supplying Kerosene oil to Aerodromes and Railways located in Orissa and owned by Government of India. Other Institutions to be notified by State Government coming on business in Kerosene are also excluded from the Control Order. "Dealers" which term includes wholesale dealer, sub-wholesale dealer or retail dealer, are required to have licences or certificates for carrying on business even for one litre of Kerosene. Consumers get the supply from retail dealers. Clause 8 (a) authorises fixation of price for sale of Kerosene by dealers and Clause 8 (b) authorises regulation of storage, distribution and sale of Kerosene. There is no provision in the Control Order for any permission, certificate or licence for a person other than a dealer. In the term 'storage, distribution and sale' used in Clause 8 (b) storage and distribution are to be read ejusdem generis to have connection with sale and is to be applicable to dealers. This would be clear from the definition of dealer where dealer means any person carrying on business in the purchase, sale or storage for sale or distribution of Kerosene-wholesale or retail. Word 'storage' cannot be read bereft of context of the entire scheme of the Control Order. In absence of clear legislative intent to include consumers which is either specHically stated in Clause 8 or unequivocally intended, consumer cannot be brought within the mischief of the notification. Word 'storage' cannot be read bereft of context of the entire scheme of the Control Order. In absence of clear legislative intent to include consumers which is either specHically stated in Clause 8 or unequivocally intended, consumer cannot be brought within the mischief of the notification. It is well known that while interpreting a provision in a statute where two meanings are possible, the meaning in favour of an accused is to be adopted. Thus, 1 am inclined to hold that the notification is not applicable to consumers. Again storage is to be regulated, Mere possession does not in all circumstances lead to conclusion of 'storage, thought storage cannot be without posse- ssion. If mere possession integded to be prohibited in the notification of the Licensing Authority, it is published in excess of delegated power to the licensing authority and has to be confined to possession which amounts to storage. Storage is the action of laying up in reservation. If a person possesses 28 litres of Kerosene, it may normally lead to presumption that the same was kept for reservation but with presumption only a consumer cannot be convicted. It has to be proved that such possession amounted to storage. If no explanation is available from accused, possession of a large quantity may lead to inference of storage depending upon the period for which it is possessed and the period within which it is to be disposed of. If a person has 28 petromax light or 28 stoves in each of which there is one litres of Kerosene, and the petromax or stove is used regularly, it cannot be said that the person has stored more than ten litres of Kerosene if such meaning is given, life and liberty of person would be unreasonably restricted which is not clearly expressed by the authorities. Therefore, without further evidence, accused could not have been convicted in this case without any opportunity to explain by cross-examining .the witnesses or explaining the circumstances as proved by prosecution. I may make it clear that possession of more than ten litres of Kerosene by a dealer leads,to the only conclusion that he has stored it for sale unless he explains otherwise even though the span is too small. I may make it clear that possession of more than ten litres of Kerosene by a dealer leads,to the only conclusion that he has stored it for sale unless he explains otherwise even though the span is too small. Keeping in mind that Clause 8 authorises a licensing authority to regulate storage and that action alone-can be regulated, notification prohibiting of possession is to be interpreted to be regulating storage of Kerosene by a dealer only. Since there is no evidence that accused is a dealer and he has also not admitted the same, admission of accused that he possessed 28 litres of Kerosene for use in his hotel read as a whole cannot be an offence and accused stating that he is guilty may be moral guilt but does not amount to be guilty of commission of an offence for which he has been convicted. On this ground conviction is to be set aside. 6. Even assuming that the notification is applicable to consumers, it is to be remembered that licensing authorities have been authorised to regulate storage of Kerosene. 'Regulate' does not authorise them to prohibit. As Lord Davey stated in (1896) AC 88 (Municipal Corporation of Torento v. virgo), authority to regulate does not include a power to prohibit because in the language of Lord Walson in (1896) AC 348 a power to regulate assumes conservation of the thing which is to be made the subject of regulation. 7. Legislature did not have the intention to control the consumers under the Act for whose benefit the legislature came to statute book. Any Control Order made by State Government if perused would find a definition of dealer whose business in an essential commodity is sought to be controlled or regulated. In Clause 3 of the Orissa Food Grains Dealers Licensing Order, 1964 Sub-clause (2) provided possession of more than the quantity specified would have the presumption that the person possessing is presumed to be a dealer. Even under the Orissa Essential Commodities (Requisitions of Stock) Order, 1977, Kerosene amongst other listed commodities can be requisitioned from a dealer only. Under the Orissa Prohibition of Withholding from Sale of Essential Commodities Order. 1977, a dealer cannot withhold Kerosene amongst other listed commodities for sale. Even under the Orissa Essential Commodities (Requisitions of Stock) Order, 1977, Kerosene amongst other listed commodities can be requisitioned from a dealer only. Under the Orissa Prohibition of Withholding from Sale of Essential Commodities Order. 1977, a dealer cannot withhold Kerosene amongst other listed commodities for sale. These Control Orders lead me to draw an inference that neither the Act nor the Control Order envisaged prohibition of possession of Kerbsene by a consumer for use and such possession does not contravene any provision of the Control Order. 8. Once statement by accused that he is guilty is not confession of commission of any offence, Section 375, Cr P C, cannot stand as bar to the appeal. A person who is not legally guilty of an offence, cannot be punished. Where such a person convicted files an appeal against his conviction, appeal is not to be thrown out. It being entertained, accused would be permitted to advance his submission that on the materials available on record which a Court can take into consideration for convicting him, he has not committed any offence. In such appeals, appreciation of evidence by the trying Judge shall not be permitted to be challenged. However misreading of evidence, error of record or surmises are exceptions to the general rule. In the present case, there is no material except statement of the accused. As I have discussed earlier, such statement does not lead to inference that accused has committed offence. Hence appeal is maintainable. 9. I am, however, not able to accept submission of Mr. H. S. Misra, learned counsel for the appellant relying on the decision of Kerala High Court reported in ILR 1973 Ker 267 (State of Kerala v. Gopinath Pillai) that in every case Court where accused pleaded guilty is to consider whether such statement is voluntary. It will all depend upon facts and circumstances in each case. As in this case where accused is represented by counsel, presumption is that the statement pleading guilty is voluntary. Besides, status of the accused and circum- stances in which the statement has been made are also important. In this case, accused runs a hotel. I have no doubt that statement by him pleading guilty is voluntary and he understands the allegations against him. 10. In this case there are many disquieting features. Charge-sheet is dated 10-10*1992. Besides, status of the accused and circum- stances in which the statement has been made are also important. In this case, accused runs a hotel. I have no doubt that statement by him pleading guilty is voluntary and he understands the allegations against him. 10. In this case there are many disquieting features. Charge-sheet is dated 10-10*1992. There is no endorsement of the Court on the charge sheet about the date of its receipt. Order-sheet indicates that charge sheet had not been received till 30-10-1992 for which case was adjourned to 30-11-1982. Order sheet of 30-11-1992 shows that charge sheet along with case diary was received on basis of which congnizance was taken and case was posted to 4-1-93 for supply of police papers to accused. l have extracted the order dated 4-1-93. Learned Special Judge has not at all considered whether police papers have been furnished to accused. Case was not posted for explaining the particulars of the offences to the accused that day. In absence of any recording in the order sheet that police papers have been supplied and when the case was not posted for stating the particulars of the case to accused that day. Accused has been prejudiced and on this short ground conviction is to be set aside. Learned Special Judge should make an enquiry about the date of receipt of the charge sheet in his Court and delinquency if found at any stage should be appropriately dealt with. 11. On my interpretation of the provisions of the Control Order that mere possession by a consumer does not contravene the provisions of the Control Order and no offence is committed u/s 7 of the Act, accused would normally be entitled to an acquittal. I, however, find on perusal of the case diary that some statements have been recorded where it is stated that accused had been carrying on the business of black marketing in Kerosene. I am conscious that Court cannot utilise those statements except for contradiction of a witness. However, to satisfy myself whether a re-trial should be ordered, I went into those documents which, according to me, is not prohibited since no evidence has been recorded by the learned Special Judge. In (1993) 6 OCR 154 (K. Bhima Senapati v. State) referring to Kanduni Dei and Others Vs. However, to satisfy myself whether a re-trial should be ordered, I went into those documents which, according to me, is not prohibited since no evidence has been recorded by the learned Special Judge. In (1993) 6 OCR 154 (K. Bhima Senapati v. State) referring to Kanduni Dei and Others Vs. Ananta Charan Mohapatra it has been observed that legislative object in enacting Section 391, Cr PC appears to be the prevention of a guilty man's escape through some careless or ignorant proceedings of a Magistrate or vindication of the plea of innocence by an accused wrongfully dragged to Court to face trial. Kerosene is in scarcity. If the accused was really carrying on business of blackmail marketing in Kerosene, his anti-social activity is required to be curbed. This would depend upon the evidence to be adduced by the prosecution. Requirement of a licence from a consumer under the Control Order by the learned Special Judge in absence of which he would be convicted for possession of 28 litres of Kerosene is inappropriat inasmuch as there is no provision under the Control Order for a permit or a licence to be obtained by a consumer to possess more than 10 litres of Kerosene. Since no evidence has been taken in this case and the allegation against the accused may amount to anti-social activity, depending on the evidence to be adduced, accused is to face trial. Accordingly, in exercise of power Under Sections 391 and 386 (b) (1) Cr PC, I direct learned Special Judge to try the accused afresh. In case, prosecution prays, opportunity should be given to have further investigation. 12. Before parting with the appeal, I may observe that in case possession of more than 10 litres of Kerosene is intended by State Government to be regulated, definition of 'dealer' in the Control Order should be amended and any person possessing more than the quantity should be deemed to be a dealer as has been provided in some other Control Orders. 13. In result, appeal is allowed. Judgment of the learned Special Judge is set aside and case is remanded back for fresh trial. Accused is to appear before the learned Special Judge on 3rd May, 1993. Till then he shall continue on bail. Final Result : Dismissed