KHEM KARAN, J. Heard, Shri Rishad Murtaza, holding brief for Shri Imtiyaz Murtaza, learned counsel for the appellant, learned Additional Government Advocate and perused the record received from the trial Court. 2. The present criminal appeal by Chet Ram is directed against the judgment and order dated 12-1-1984, passed by Shri B. I. S. Sodhi, the then Special Judge, Har-doi by which he convicted the appellant under Section 3/7 of Essential Com modities Act and sentenced him to a period of two years R. I. 3. It is said that S. I. Ram Abhilakh Singh of P. S. Kotwali, Hardoi got informa tion that one Kotedar (Proprietor of the fair price shop) had illegally sold the sugar, after lifting it from F. C. I. , Hardoi. He took the witnesses and reached Octroi Post, on Hardoi-Lucknow Road, at 8. 40 p. m. He found two carts loaded with 33 bags of sugar. The appellant was allegedly, in control of these carts and on query, he told that the sugar belonged to Pahadi Singh, Kotedar. The appellant also showed gate pass, issued by F. C. I. But the Sub-In spector seized the sugar, arrested the ap pellant and registered a crime punishable under Section 3/7 of Essential Com modities Act. After the necessary inves tigation and sanction of the District Magistrate, the police submitted the charge-sheet against the appellant. 4. The appellant took the plea that he was transporting the sugar, as per instruc tions of Pahadi Singh, the Kotedar and purchaser from F. C. I. He further con tended that he was servant of Pahadi Singh and had not purchased the sugar from Pahadi Singh. 5. The prosecution examined Ram Abhilakh Singh as P. W. 1, the defence ex amined Pahadi Singh (D. W. 1), Nanhey Lal (D. W. 2), Reghubar Singh (D. W. 3) and Harishankar (as D. W. 4) and also filed few papers marked Ext. Kha-1 to Kha-4. Jagdish Prasad and Maqbool Hussain who examined as C. W. 1 and C. W. 2 respectively. 6. The learned Judge, rejected the defence pleas and convicted the appellant under Section 3/7 of E. C. Act. 7. It is surprising that there is no reference of the relevant control order, in the statement before the charge or in the judgments, which is said to have been contravened. 6. The learned Judge, rejected the defence pleas and convicted the appellant under Section 3/7 of E. C. Act. 7. It is surprising that there is no reference of the relevant control order, in the statement before the charge or in the judgments, which is said to have been contravened. Let us see whether the prosecu tion has been able to prove that the accused had purchased this sugar from Pahadi Singh and was transporting the same in his own rights, as alleged by the prosecution or as servant of Pahadi Singh as contended by the defence. If it is found that he was not the purchaser but was transporting as servant of Pahardi Singh, there will be no crime and if he had pur chased it for purposes of sale, then it has to be seen as to which control order has been contravened, so as to bring this act within the ambit of Section 7 of E. C. Act. 8. There is no direct evidence on the point of sale of sugar by Pahadi Singh to the appellant. S. I. Ram Abhilakh Singh does not claim to be a witness on that point. Pahadi Singh, D. W. 1 denies it. In ference of sale is being drawn from the fact that the appellant was found in possession and control of the sugar in question. But this possession or transportation by the appellant, has to be looked into in the light of his defence plea. 9. There is a recital in Fard Ext. Ka-1, that Chet Ram told to Sub-Inspector that sugar belonged to Pahadi Singh. In his statement dated 27-2-1981, recorded before the J. M. Sub-Inspector Ram Ab hilakh Singh admitted in cross-examina tion that Chet Ram told that he was ser vant of Shri Pahadi Singh. The plea that Chet Ram told that he was servant of Pahardi Singh, came in the application dated 30-5-1978 for release and also in the bail application. There was evidence of D. W. 1 on that point. Absence of documentary evidence to prove the fact that Chet Ram was servant of Pahadi Singh, was not sufficient enough to reject other oral evidence on record. The ac cused was not required to prove that plea, beyond all reasonable doubt. His plea came from the very beginning and was not an after thought. Absence of documentary evidence to prove the fact that Chet Ram was servant of Pahadi Singh, was not sufficient enough to reject other oral evidence on record. The ac cused was not required to prove that plea, beyond all reasonable doubt. His plea came from the very beginning and was not an after thought. Pahadi Singh was not arrayed as an accused, rather sugar was released in his favour. I am of theview that the trial judge committed error by dis believing the defence evidence and by rejecting the plea of the defence. The defence plea is more probable and accept able. 10. I need not enter into other points argued from the side of the appellant. I come to the conclusion that the prosecu tion has not been able to establish beyond all reasonable doubts, that Chet Ram pur chased the sugar from thekotedar, Pahadi Singh and was transporting or possessing the same in his own rights as a purchaser. If the sugar is being transported from F. C. I, by the servant or other under the instruc tions of Kotedar it cannot be said that the act is a crime. It is not necessary that Kotedar should himself accompany the carts or truck. The learned Judge could not appreciate the defence plea. He had no sufficient material to say that Chet Ram was the pm chaser of the sugar. The charge under Section 3/7 of Essential Com modities Act was not established. Appeal deserves to be allowed. 11. Appeal is hereby allowed. Convic tion and sentence recorded by the trial Court are set aside. Appellant is found not guilty under Section 3/7 of Essential Com modities Act and is acquitted accordingly. He is on bail. His bail bonds are cancelled and sureties are discharged. 12. The record received from the trial Court sent back together with the copy of thejudgment. Appeal allowed. .