M.L. VISA, J.:–This appeal is directed against the judgment and order dated 3.6.1992 passed by Special Judge, Essential Commodities Act, Nalanda at Biharsharif in Silao Police Station Case No. 188 of 1986 convicting and sentencing the appellant to undergo rigorous imprisonment for five years under Section 7 of Essential Commodities Act (for short "EC Act"). 2. Brief facts of the case are that on 24.9.1986 at about 7 AM when informant Ramjee Singh (PW 7), the then constable of Silao Police Station was going from police station to Silao choraha for taking tea, he saw three thellas, each loaded with three bags of sugar carried by Jugal Manjhi (PW 3), Umesh Manjhi (PW 4) and Dhobi Manjhi (PW 5), all thella pullers. When informant enquired from all thella pullers about sugar bags, they disclosed that sugar bags belonged to appellant which were being taken to a shop in Silao bazar for sale. In the meantime, appellant also reached there and admitted that sugar bags belonged to him and he was carrying the bag to Silao bazar for sale and he further disclosed that he was going to sell the sugar in Silao bazar on black market. The informant then brought the sugar bags and appellant at police station and submitted his written report (Exhibit-3) on the basis of which formal first information report under Section 7 of EC Act (Exhibit-6) was drawn against the appellant and after investigation, charge-sheet against the appellant was submitted and cognizance of the case was taken and the appellant was put on trial and after conclusion of trial, he was found guilty under Section 7 of EC Act for contravening the provisions of Section 3 of EC Act and was convicted and sentenced to undergo rigorous imprisonment for five years. 3. In order to prove its case, prosecution examined eight witnesses, Nagendra Sharma (PW 8) is the formal witness who has proved seizure-cum-production list in the handwriting and signature of Vidyapati Singh, the then Officer-in-charge of Silao Police Station which is marked Exhibit-4. He has further proved carbon copy of a letter addressed by Vidyapati Singh to Marketing Officer, Rajgir (Exhibit-5) and formal first information report (Exhibit-6). He has further proved carbon copy of a letter addressed by Vidyapati Singh to Marketing Officer, Rajgir (Exhibit-5) and formal first information report (Exhibit-6). Baikunth Singh (PW 1) is said to be witness of production-cum-seizure list and although he has proved his signature (Exhibit-1) on production-cum-seizure list but has clearly stated that in his presence informant had not produced bags of sugar said to be loaded on three thellas and Officer-in-charge of police station had obtained his signature on a blank paper. He has been declared hostile by the prosecution. Jugal Manjhi (PW 3), Umesh Manjhi (PW 4) and Dhobi Manjhi (PW 5) are said to be thella pullers on which sugar bags were found by informant being carried. They have not supported the case of prosecution and have denied that they were carrying thellas loaded with sugar bags and they have been declared hostile by the prosecution. Tapesar Singh (PW 6) is another witness on production-cum-seizure list and he has also not supported the case of prosecution and has been declared hostile by the prosecution and when his attention was drawn towards his signature although he proved his signature (Exhibit-1/1) on production-cum-seizure list but has stated that at the dictate of Officer-in-charge, he had put his signature on a blank paper. Ramjee Singh (PW 7) is the informant and he, in his evidence, has said that on 24.9.1986 in the morning, he was going to take tea at Silao choraha and when he came out of the police station, he saw three thellas each loaded with three bags of sugar coming from Karah bazar and Jugal Manjhi (PW 3), Umesh Manjhi (PW 4) and Dhobi Manhi (PW 5) who were thella pullers disclosed that the sugar belonged to appellant who was a fair price dealer and they further said that they were carrying sugar bags to Silao bazar and in the meantime, Officer-in-charge came there and on being asked, appellant disclosed to Officer-in-charge that the sugar bags belonged to him and he was carrying the sugar to market and, thereafter, all the sugar bags loaded on thellas and appellant were brought to police station where he submitted his written report (Exhibit-3) and he also put his signature (Exhibit-1/2) on production-cum-seizure list. Narendra Tiwary (PW 2) is the Supply Inspector and he said that on 24.9.1986 when he was in his office, he received a letter (Marked X for identification) of Officer-in-charge through a police constable addressed to Marketing Officer and on the basis of that letter, the Marketing Officer ordered him to go to Silao bazar alongwith constable to make enquiry and after enquiry, he submitted his enquiry report. He has proved his enquiry report which is marked Exhibit-2. He has said that appellant was a dealer and nine bags of sugar in the month of September, 1986 were given to him for distributing among consumers. He has further said that he found nine bags of sugar at Silao Police Station. In cross-examination, he has admitted that at Rajgir, there were two Supply Inspectors, one for notified area, Rajgir and another for rural area and he was Incharge of rural area whereas place of occurrence of the case falls within notified area which is not under his jurisdiction and Raghunandan Prasad was Supply Inspector of notified area. He has further admitted that distribution of sugar by a dealer among consumers is made in presence of Ward Commissioner and after recommendation of Ward Commissioner, further allotment is made in favour of dealer and when recommendation of Ward Commissioner is approved by Supply Inspector, further allotment is made by Marketing Officer. He has proved the writing and recommendation of Reghunandan Prasad, Supply Inspector of notified area recommending the allotment for the month of September, 1986 in the stock register of appellant. This writing and signature is marked Exhibit-A. He has also proved the writing and signature of Marketing Officer (Exhibit-A/1) below the aforesaid recommendation and has said that Marketing Officer had recommended for allotment of eight bags of sugar. In para-7 of his evidence, he has said that during investigation, he did not examine any consumer and he had not gone to the shop of appellant to verify the stock. 4. On behalf of appellant, Ajay Kumar (DW 1) has been examined who has said that he is a member of Silao notified area and he represents Karan bazar and in his village, there are three shops under Public Distribution System and one belongs to appellant and sugar, oil etc. 4. On behalf of appellant, Ajay Kumar (DW 1) has been examined who has said that he is a member of Silao notified area and he represents Karan bazar and in his village, there are three shops under Public Distribution System and one belongs to appellant and sugar, oil etc. are distributed among consumers in his presence and in the month of September, 1986, sugar was distributed from the shop of appellant in his presence and in that month, eight quintals of sugar was allotted to appellant and because in the month of August, 1986, 16.240 Kgs. of sugar had remained in balance, therefore, in the month of September, total stock of sugar was eight quintals sixteen kilograms and two hundred forty grams. He has proved his signature (Exhibit-A/2) on the stock register and has said that in the month of September, distribution started from 14.9.1986 and continued till 22.9.1986 and after distribution, 30.50 Kgs. of sugar remained in balance and he then recommended allotment for next month by writing on distribution register. He has proved his writing and signature which is marked Exhibit-B. 5. The enquiry report (Exhibit-2) of Narendra Tiwary (PW 2) simply states that appellant is a dealer of a fair price shop within Silao notified area and for the month of September, 1986, nine bags of sugar was allotted to him for distribution among consumers and bringing those nine bags of sugar in Silao bazar from Karah village was illegal. 6. In this case, there is only evidence of informant Ramjee Singh (PW 7) and of Narendra Tiwary (PW 2), Supply Inspector. Admittedly, informant Ramjee Singh (PW 7) at the time of occurrence was a police constable and his evidence is that three thellas, each loaded with three bags of sugar were coming from Karah bazar and the thella pullers told him that the bags of sugar belonged to appellant and that appellant also reached there and on being asked by Officer-in-charge, he admitted that sugar belonged to him and he was carrying the same to market. In his written report, he has stated that the appellant told him that he was taking the sugar bags to Silao market for sale on black market. This statement is absent in his evidence where he has simply stated that the appellant told Officer-in-charge that the sugar belonged to him and he was taking the sugar to market. In his written report, he has stated that the appellant told him that he was taking the sugar bags to Silao market for sale on black market. This statement is absent in his evidence where he has simply stated that the appellant told Officer-in-charge that the sugar belonged to him and he was taking the sugar to market. The Court below in its judgment has observed that the appellant has accepted the fact that he was carrying sugar to Silao bazar for selling for calendestine purposes that is on black market and this fact was stated before the informant. As stated above, the evidence of informant does not show that appellant made any such statement. In this case, three persons who have been alleged as thella pullers carrying sugar have not supported the case of prosecution that they were carrying sugar bags. There is no evidence on record to show from where nine bags of sugar were seized by police. The Court below in its judgment has stated that the appellant in his examination under Section 313 of Criminal Procedure Code admitted that he is a licensee of a fair price shop bearing licence No. 528 of 1980 of Ward No. 5 of village-Karah. He has further admitted that he received nine bags of sugar in the month of September, 1986 for distribution among consumers but he denied that he was carrying those nine bags of sugar from his fair price shop to Silao bazar for its sale on black market. He has further denied that those nine bags of sugar were seized by police. The Court below has observed that the appellant has not given any explanation about the nine bags of sugar which were received in the month of September, 1986 for his fair price shop but the court below has failed to observe that Ajay Kumar (PW 1), in his evidence, has stated that sugar supplied in the month of September, 1986 for the fair price shop of appellant was distributed among consumers in his presence. The Court below has held this evidence not convincing by observing that the stock register is the new one and it has been prepared at the instance of the appellant. The Court below has held this evidence not convincing by observing that the stock register is the new one and it has been prepared at the instance of the appellant. Although there is no evidence that nine bags of sugar which were allotted to appellant for his fair price shop were being carried on three thellas to Silao market as alleged by informant but for the sake of argument if it be assumed that those bags belonged to appellant and were found being carried on three thellas even then it cannot be held that appellant made any attempt for selling the sugar on black marketing because it will amount only a preparation which is not an offence under any of the provisions of EC Act as held by Apex Court in its judgment in the case of Nalkiat Singh and another Vs. State of Punjab (AIR 1970 Supreme Court 713). Notwithstanding this fact, in the present case, there is no allegation even against the appellant that sugar which was allotted to him in the month of September, 1986 for distribution among consumers was not distributed. In absence of any such allegation by any consumer or any competent authority, no offence is made out against the appellant. The conviction of appellant in this case by Court below cannot be sustained on a number of grounds. The first ground is that there is no evidence on record that the nine bags of sugar seized in this case belonged to appellant. Another ground is that the evidence on record does not show that the nine bags of sugar seized in this case on three thellas were the same bags which were allotted to appellant for his fair price shop. By mere finding of nine bags of sugar loaded on three thellas, it cannot be said that there was any attempt to sell those bags in black market. 7. I, therefore, find and hold the appellant not guilty. The judgment and order of Court below convicting and sentencing the appellant is hereby set aside and the appellant is acquitted. As the appellant is on bail, he is also discharged from the liability of his bail bonds.