P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 28-6-1997 passed by Shri N. N. Praharaj, Special Judge, Jajpur in Vigilance G. R. Case No. 43 of 1996 convicting the appellant under S. 7 of the Essential Commodities Act (for short 'the Act') and sentencing him to undergo rigorous imprisonment for six months. ( 2 ) PROSECUTION case runs as follows :the appellant was a sub-wholesaler of kerosene oil in the district of Jajpur. On 21-6-1996 P. W. 3, the Inspector of Police (Vigilance), Jajpur received confidential information about clandestine distribution of kerosene oil by the appellant and proceeded to the spot with Sri U. K. Paikray, Dy. superintendent of Police (Vigilance) and vigilance staff accompanied by Sri N. K. Beda, Assistant Civil Supplies Officer, Jajpur (P. W. 1) and Sri B. K. Panda, Marketing Inspector, Jajpur (P. W. 2 ). They arrived at 11-00 a. m. in the depot of the appellant at village Kabirpur for verification of the stock and his books of accounts and found the depot locked. They tried to procure the attendance of the appellant but in vain. Hence a notice was hung in the depot requiring the attendance of the appellant at 4. 00 p. m. which did not yield any result. Therefore, a requisition was sent to the Collector, Jajpur for deputing an executive Magistrate on 22-6-96 for making inventory of the stock of kerosene in the depot of the appellant. The office and business premises of the appellant were guarded by the viligance staff. On 22-6-1996 at 6-30 a. m. the appellant was present in his business premises and after arrival of the Executive Magistrate at 9. 00 a. m. the appellant opened his depot for verification of the stock. On verification is was found that there was stock of 1603 litres of kerosene in seven barrels and 3 tin containers. But as per the register, the stock balance was 3103 litres as on 14-6-96. There was no transaction recorded from 14-6-1996 to 22-6-96. Hence there was a shortage of 1500 litres of kerosene oil which could not be explained by the appellant. P. W. 3 seized the stock of kerosene oil found in the depot of the appellant and kept the same in zima of one Shankarshan Sahu. The books of accounts and documents of the appellant were also seized. Hence there was a shortage of 1500 litres of kerosene oil which could not be explained by the appellant. P. W. 3 seized the stock of kerosene oil found in the depot of the appellant and kept the same in zima of one Shankarshan Sahu. The books of accounts and documents of the appellant were also seized. It is further alleged that the appellant had not exhibited the declaration of stock and price board in his shop premises. Therefore, P. W. 3 found that there were violation of the provisions of S. 10 of the Orissa Kerosene Control Order, 1962 for short the Control Order, 1962), clause 4 of the license granted to the appellant, clause 3 of the Orissa Declaration of Stock and Prices of Essential Commodities Order, 1973 (for short 'the Control Order, 1973'), punishable under Ss. 7 and 9 of the Act. Accordingly P. W. 3 submitted a written report (Est. 8) to the Superintendent of Police (Vigilance), Central Division, Cuttack who directed the Officer-in-charge, Vigilance Police Station, Cuttack to register a case under Ss. 7 and 9 of the Act asking P. W. 3 to take up investigation. Accordingly the case was registered in the Cuttack Vigilance P. S. and after completion of investigation P. W. 3 submitted charge-sheet against the appellant who stood his trial. ( 3 ) THE defence plea is one of denial. According to the defence the shortage occurred due to leakage in barrels kept outside the depot, caused by some miscreants which has been reported to the police and that the appellant was not responsible for the shortage. ( 4 ) IN order to bring home the charge against the appellant, prosecution has examined as many as three witnesses. Out of them P. W. 3 is the Investigating Officer. P. W. 1 is the Assistant Civil Supplies Officer, Jajpur and P. W. 2 is the Marketing Inspector who were present during the search and seizure. The defence has examined one witness in support of its case. ( 5 ) MR. Panda, learned counsel for the appellant contended that the Special Judge has failed to appreciate the evidence on record in proper manner and has come to the erroneous conclusion that the appellant failed to account for the shortage of kerosene oil and had not maintained the accounts properly. ( 5 ) MR. Panda, learned counsel for the appellant contended that the Special Judge has failed to appreciate the evidence on record in proper manner and has come to the erroneous conclusion that the appellant failed to account for the shortage of kerosene oil and had not maintained the accounts properly. Learned Additional Standing Counsel supported the impugned judgment contending that the findings of the learned Special Judge is not erroneous. The rival contentions require careful consideration. ( 6 ) THE learned Special Judge placed reliance on the statements of P. Ws. 1, 2 and 3 and found the appellant guilty of the charge and disbelieved the defence plea that the shortage was due to leakage caused in barrels. P. W. 3 has stated in his report vide Ext. 8 that during physical verification of the stock he found 1603 litres of kerosene oil in seven barrels each containing 320 litres and three tin containers inside as well as outside the office room. But as per the stock register there should have been 3103 litres of kerosene oil as on 14-6-96 since no transaction was made between 14-6-1996 to 2-6-96. In the weighment chart (Ext. 1) it is shown that one tin contain 25 litres of kerosene oil and two tins each containing 20 litres of kerosene oil and thus three tins were in the office room of the depot of the appellant and seven barrels containing 1538 litres of kerosene oil were found in front of the office room of the depot. The seizure list Ext. 3 reveals that some registers and documents were seized along with those tins and barrels containing kerosene oil. Ext. 2 is the stock register of the appellant. Ext. 4 is the zimanama. Ext. 5 is the sale register of the appellant. Ext. 6 is another zimanama. Ext. 7 is the seizure list of licence granted to the appellant. Ext. 8 is the FIR. Ext. 2 is the stock register of the appellant. Ext. 4 is the zimanama. Ext. 5 is the sale register of the appellant. Ext. 6 is another zimanama. Ext. 7 is the seizure list of licence granted to the appellant. Ext. 8 is the FIR. P. W. 1, the A. C. S. O. , Jajpur has stated that at the time of raid appellant claimed that the shortage in kerosene oil stock was due to leakage in the barrels and in his statement in Court in cross-examination he has stated that the barrels had been kept outside his shop room and that ten barrels were found to have been damaged and were seized and that some portion of the floor in front of the shop was found to have been soaked with kerosene oil and that the appellant had given in writing on 19-6-96 in his office that some miscreants had damaged the kerosene barrels and there was leakage in the barrels. The said report of the appellant had been received in his office. P. W. 2 the Marketing Inspector has stated that the barrels containing kerosene oil had been kept outside the shop of the appellant. He has further stated that the appellant told that some of his enemies had damaged the kerosene barrels causing leakage. Regarding the measurement of the stock of kerosene Oil while P. W. 1 has stated that two employees of the appellant measured the kerosene oil by pouring the same into empty barrel, P. W. 2 has stated that the Vigilance Inspector (P. W. 3) measured the kerosene oil by putting measuring scale into the barrels and the tins. P. W. 3 has stated that he got the kerosene oil measured through the salesman of the appellant by using litre measures and pouring out the kerosene oil from the barrels and that after the measurement the kerosene oil was kept in the empty barrels and that there were seventeen empty barrels. He could not say how the barrels were damaged containing holes causing leakage. He could not say how the barrels were damaged containing holes causing leakage. D. W. 1, the A. S. I. of Police attached to Baruan Police Out Post has stated that on 20-6-96 the appellant had submitted a written report at the Out Post alleging that some miscreants had damaged the kerosene barrels kept outside the shop and on the basis of the said report Station Diary entry No. 315 dated 20-6-1996 had been made by a constable and the report was sent to him while he was conducting an investigation in a case of accident. He conducted an enquiry and found that the allegation of the appellant was true. But could not find out the culprits. Since it was a non-cognizable case, he did not proceed further to investigate the matter. During the spot visit he found that an area measuring 10 to 15 feet in length has been soaked in kerosene oil. Though in his statement in cross-examination P. W. 1 stated that the appellant did not submit any written report at the Out Post, it has been suggested to him that since he did not find any damage to any kerosene barrel, nobody could tell about the same which implies that P. W. 1 had conducted an enquiry into the allegation of the appellant. He has stated to have sent copy of the Station Diary Entry to his higher authorities. Thus it is found that the defence plea is supported by P. Ws. 1 and 2, the A. C. S. O. , Jajpur and the Marketing Inspector, Jajpur Block respectively having jurisdiction over the area in which the shop and the depot of the appellant were situated. D. W. 1 who is a police officer has also supported the defence plea. P. W. 3 who is the informant as well as the Investigating Officer in this case has also stated that the barrels containing kerosene oil had been kept outside the shop premises of the appellant. ( 7 ) CONSIDERING the above materials on record, the defence plea that there was leakage in the kerosene barrels caused by the miscreants, cannot be brushed aside. The quantum of shortage in kerosene oil as alleged by the prosecution cannot be held to be correct in view of the discrepancies in the statements of the P. Ws. 1 to 3 relating to the measurement of the kerosene oil. The quantum of shortage in kerosene oil as alleged by the prosecution cannot be held to be correct in view of the discrepancies in the statements of the P. Ws. 1 to 3 relating to the measurement of the kerosene oil. In T. Godavari Patra v. State of Orissa (1988) 1 OCR 531 it has been held that defence plea can be established through preponderance of probabilities and has to be accepted if the said plea is believable and plausible. In Uchhab Sahoo v. State (1988) 2 Crimes 938 : (1989 Cri LJ 168) it has been held that the defence witnesses are entitled to equal treatment with those of the prosecution witnesses. In view of the decisions REFERRED TO above, and the analysis of the evidence on record, the inevitable conclusion would be that the learned special Judge has not been able to correctly appreciate the evidence on record and has erred in rejecting the defence plea and holding the appellant guilty of the charge. The defence plea which appears to be probable and plausible, should not have been rejected. Therefore, the conviction of the appellant and the sentence passed thereunder cannot be sustained and the impugned judgment is liable to be set aside. ( 8 ) IN the result, the appeal is allowed and the impugned judgment dated 28-6-1997 passed by the Special Judge, Jajpur in Vigilance G. R. Case No. 43 of 1996 is set aside. The conviction of the appellant under S. 7 of the Essential Commodities Act and the sentence passed thereunder are set aside and the appellant is acquitted of the charge. The bail bond of the appellant be discharged. Appeal allowed.