Judgment : T. JAYARAMA CHOUTA, J. ( 1 ) THIS Appeal has been filed by the two appellants who are the accused in S. T. C. No. 2 of 1992 on the file of the Special Court (E. C. Act Cases) Pudukkottai. ( 2 ) THE prosecution case in brief is as follows: That on 12-3-1991, at about 6. 00 p. m. in Rameswaram to Dhanuskodi Road near Moonram Chatram, the accused 1 and 2, driver and cleaner respectively of the van bearing registration No. TNK 7237 were transporting 200 litres of petrol and 160 litres of Diesel in plastic cans loaded in the said van without any valid permit or licence, in contravention of Section 6 and 7 of the Tamil Nadu Motor Spirit and High Speed Diesel Oil (Maintenance and regulation of supplies) Order. 1980 and Section 2 (L) of Motor Spirit and High Speed Diesel (Prevention of malpractice in supply and Distribution) Order 1990 of the Central Government and therefore the accused are liable to be punished under Section 7 (i) (ii) of the Essential Commodities (Special Provisions) Act 1981. The accused denied the charges levelled against them. ( 3 ) ON behalf of the prosecution, four witnesses were examined and Exs. P. 1 to P. 4 were got marked. No defence witness was examined. On behalf of the accused no document was produced. ( 4 ) THE learned Presiding Officer by his Judgment dated 1-10-1992 convicted both the accused under Sections 2 (VIII) of Petroleum and Petroleum produce control Order read with Section 7 (1) (a) (ii) of the Essential Commodities Act, 1 995 and sentenced them to undergo Rigorous Imprisonment for three months and also to pay- a fine of Rs. 500/ . The said conviction and sentence have been challenged in this Criminal Appeal. ( 5 ) THE learned Advocate for the appellants submitted that the Courts below was not Justified in convicting the appellants, since no sample was taken from the contrabands. He further submitted that unless the prosecution proves that the articles seized from the possession of the appellants were Diesel and Petrol, no conviction can be imposed on them. The appellants cannot be convicted for the offences for which they are charged now. He further submitted that unless the prosecution proves that the articles seized from the possession of the appellants were Diesel and Petrol, no conviction can be imposed on them. The appellants cannot be convicted for the offences for which they are charged now. He has further submitted that the said articles which were seized from the possession of the appellants were also not produced before the Court on these grounds he pointed out that the order of conviction passed by the Court below is liable to be set aside. ( 6 ) THE learned Additional Public Prosecutor tried to support the conviction and sentenced passed by the lower Court. Learned advocate for appellants submitted that according to Section 2 (d) of the Motor Spirit and High Speed Diesel (prevention of Malpractices in supply and Distribution) Order. 1990, high Speed Diesel means any hydrocarbon oil (excluding mineral colza oil and turpentine substitute) which has its flash point at or above 25 decree Celsius and is suitable for use as fuel in compression ignition engines. Unless the prosecution proves that the contrabands seized from the possession of the accused was High Speed Diesel no conviction can be imposed. According to Section 8 of the said Order, the Officer authorized in Clause 7 shall draw the sample from the tank, nozzle vehicle or receptacle as the case may be to check whether density of the produce conforms to requirements indicated in Scheduled 1. Admittedly in this case no sample has been sent to the laboratory to find out whether it was a high speed diesel oil. Thus, this Criminal Appeal has got to be allowed. ( 7 ) HENCE, for the reasons stated above. I allow this Criminal Appeal and set aside the conviction and sentence imposed on the appellants. If the appellants are on bail, their bail bonds shall stand cancelled. The fine amount, if any paid by the appellants should be refunded to them. Appeal allowed.