Honble RATHORE, J.–The petitioners preferred this criminal revision petition under Section 397 read with Section 401 of Code of Criminal Procedure against the order dated 23.6.2005 passed by Session Judge, Jhunjhunu in Criminal Appeal No. 45/2001 whereby learned Judge has dismissed the appeal filed by the appellants- petitioners and upheld the order dated 24.7.2001 passed by Collector, Jhunjhunu in Case No. 100/2001 under Section 6-A of Essential Commodities Act, 1955 (for short hereinafter referred to as `the Act of 1955). (2). Briefly stated, facts of the case are that on 2.6.2001 an information was received at Police Station-Pilani, District : Jhunjhunu from an informer that Kerosene will be transported to Delhi from Jhunjhunu illegally and thereupon at 6.30 AM a truck was seized near Village-Narhad by the police party consisting of C.I. Nawab Khan, ASI- Narendra Singh and Head Constable-Somdev and others. On search of the tanker/truck, it was found filled with 11000 liters Kerosene, which was of blue and black colour. (3). On enquiry, the petitioner No. 2 (Driver) stated that he is transporting the Kerosene by the tanker under the instructions at petitioner No. 1 (Owner) from Jhunjhunu to Delhi, which is supplied to steel factories in Vazirpura area. No permits or license and bills about the sale or purchase of this kerosene were found with petitioner No. 2. Thus, it was found that the petitioners had contravened the provisions of Clause-3 of Rajasthan Trade Articles (Licensing & Control) Order, 1980 and Clause-3 of Kerosene (Restrictions or Use & Fixation of Ceiling Price) Order, 1993. The petitioners have committed offence under Section 3/7 of Essential Commodities Act, 1955. (4). A FIR No. 145/2001 was registered at Police Station - Pilani and the report was submitted under Section 6-A of the Act of 1955 to the District Collector, Jhunjhunu to confiscate the Tanker as well as 11000 liters Kerosene, seized by the police. (5). The Collector, Jhunjhunu issued show cause notice to the petitioners. The petitioners appeared before the Collector and after hearing the petitioners, confiscate the Tanker as well as 11000 liters kerosene vide its order dated 24.7.2001. (6). Aggrieved and dissatisfied with order dated 24.7.2001 passed by the Collector, Jhunjhunu, the petitioners preferred a criminal appeal before the Session Judge, Jhunjhunu. The Session Judge, Jhunjhunu after hearing the parties vide its order dated 23.6.2005 dismissed the appeal and upheld the order passed by the Collector. (7). (6). Aggrieved and dissatisfied with order dated 24.7.2001 passed by the Collector, Jhunjhunu, the petitioners preferred a criminal appeal before the Session Judge, Jhunjhunu. The Session Judge, Jhunjhunu after hearing the parties vide its order dated 23.6.2005 dismissed the appeal and upheld the order passed by the Collector. (7). The petitioners have challenged both the orders passed by the courts below on the ground that the confiscation order could have been passed only when the prosecution has shown that there was deliberate contravention of Clause 3 of Order, 1980 as well as Order, 1993. (8). Learned counsel for the petitioner referred Clause-2 (e) of the Order 1980, which defines the word "Dealer. According to Section 2(e), `Dealer means a person, a firm, an association of persons or a cooperative society other than a National and State Level Cooperative Society, engaged in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent but does not include; (i) a person who holds or is in possession of agriculture land under any tenure or any capacity and on which he raised or has raised crop of food grains, oilseeds or whole pulses; (ii) a manufacturer of sugar, gur and khandsari; (iii)a producer of pulses and edible oil. (9). Learned counsel for the petitioner also referred Clause-2 (c) 1993 Order, which deals with definition of `Dealer, which is reproduced hereunder: (c). `Dealer means a person, firm, association of persons, company institution, Organization or a cooperative society, approved by Government Oil Company or Central or State Government or a parallel marketer and engaged in the business of buying and selling kerosene. (10). After referring the aforesaid provisions, learned counsel for the petitioner submits that since no material is available on record to prove that the petitioners would have been the Dealer or its Agent of kerosene and of Trade Articles on the relevant date in view of definitions, described in Clause 2(e) of Order 1980 or Clause 2(c) of Order 1993. (11). He also referred Clause 2(e) of 1993 Order, wherein the word `Kerosene has been defined. (11). He also referred Clause 2(e) of 1993 Order, wherein the word `Kerosene has been defined. According to Clause (e)- `Kerosene means a middle distillate mixture of hydrocarbons meeting BIS specification No. IS-1459 of 1974 with important characteristics of flash point at a minimum of 35 degree C. and smoke point at a minimum of 18 mm. (12). Further, to arrive at the conclusion that the petitioners were transporting kerosene illegally, it was necessary to ascertain the fact as to whether the liquid which was transported, was kerosene or not. The substance can be called Kerosene, which has following ingredients: (a) it should be middle distillate mixture of hydrocarbons meeting BIS Specification No. IS 1459 of 1974; (b) it should have a flash point at a minimum of 35 degree centigrade, and; (c) it should have a smoke point at a minimum of 18 MM. (13). It is contended that in fact the liquid transported in the Tanker was not kerosene, but the same was residue which was obtained from the factories, which is used for washing machines. The petitioner No. 1 is transporter and owner of the Tanker and the petitioner No. 2 is the driver. They are not dealing with the kerosene and are not the Dealer of selling kerosene. They simply transport the liquid after charging fare and thus, liquid which was found, was black in colour and not blue as alleged by the respondents. (14). It is further contended that the confession was made by the Driver (petitioner No. 2 in presence of police officers viz. CI- Nawab Khan, ASI- Narendra Singh, HC- Somdev and others. It is not admissible in evidence according to provisions of Section 25 of Indian Evidence Act. Therefore, nothing should have been proved by this alleged confession against the petitioners. In case this so called confession of petitioner No. 2 is taken out of record, then there remain nothing against the petitioners and as such no confiscation order should have been passed. (15). Therefore, nothing should have been proved by this alleged confession against the petitioners. In case this so called confession of petitioner No. 2 is taken out of record, then there remain nothing against the petitioners and as such no confiscation order should have been passed. (15). Learned counsel for the petitioner referred Section 6-A of Act of 1955, which reproduced hereunder: 6-A. Confiscation of essential Commodity- (1) Where any (essential commodity is seized) in pursuance of an order made under Section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency-town in which such [essential commodity is seized] and whether or not a prosecution is instituted for the contravention of such order, the Collector, [may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied] that there has been a contravention of the order [may order confiscation of- (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:] Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section: Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. (2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may- (i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or (ii) Where no such price is fixed, order the same to be sold by public auction: (3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall- (a) where no order of confiscation is ultimately passed by the Collector, (b) where an order passed on appeal under sub-section (1) of section 6C so requires, or (c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned acquitted, be paid to the owner thereof or the person from whom it is seized. (16). After referring aforesaid provisions of Essential Commodities Act, submits that provisions of Section 6-A are mandatory in nature and before passing any order, mandatory provisions should be complied with. The order, thus passed by the Session Judge is contrary to provisions of E.C. Act. (17). In support of his submissions, he placed reliance on the judgment rendered by this Court in the case of Pep Singh vs. State of Raj., reported in RLW 1989 (1) Page 141. This Court while dealing with Section 6-A of Act of 1955 has held that non- production of permit and `builty at the time of seizure does not lead to an irresistible conclusion that the owner or the driver knew that the goods being transported are in breach of the provisions of control order. (18). In the present case, the petitioner No. 1 being transporter and petitioner No. 2 being driver, transported the residue liquid, after charging fare of Rs. 2500/- and they were not knowing the fact that goods, which was being transported in the Tanker, is in contravention of provisions of E.C. Act. (19). (18). In the present case, the petitioner No. 1 being transporter and petitioner No. 2 being driver, transported the residue liquid, after charging fare of Rs. 2500/- and they were not knowing the fact that goods, which was being transported in the Tanker, is in contravention of provisions of E.C. Act. (19). Learned counsel for the petitioner also referred `Kerosene (Fixation of Ceiling Prices) Order) 1970, wherein the word `Kerosene has been defined. Kerosene means- `the expression `Kerosene shall have the meaning assigned to it in Item No. 7 of the First Schedule to the Central excise & Salt Act, 1944 (1 of 1944), and shall include aviation turbine fuel. In the case of Cheluvaraj vs. State of Karnataka, reported in 1987 E.F.R., 230 at Page 233-it is observed that mere fact that the accused was found in possession of 100 liter of kerosene will not make him a dealer. The definition postulates that the liquid must have a particulars standard if it is to be treated as kerosene under the Order. (20). The Kerala High Court in the case of Poomadathil Munhimoideen Kutty vs. State of Kerala, reported in 1988 E.F.R., 498 has held that whenever a particular scientific standard is fixed for a commodity of ascertainment it must be made by subjecting it to scientific test. Opinions formed by looking at it, smelling it or tasting it cannot be proper substitutes for results of scientific or chemical analysis. The position may perhaps be different if no standard as such is fixed for a particular commodity or article the possession of which amounts to an offence. Similar definition has been given in the `Kerosene (Restriction on Use and Fixation of Price) Order 1966. (21). In the present case also, the liquid (Kerosene) was confiscated by smelling without chemical or scientific test, which is also contrary to the Order of 1970 and also contrary to Order of 1966. (22). In the Central Excise Traffic Act, 1985, the word `Kerosene has been defined. Kerosene, which is (ordinary used as an illuminant in oil burning lamps) and aviation turbine fuel, that is to say, any hydrocarbon (oil excluding mineral colza turpentine substitute) which has a smoke point of eighteen millimeters, or more and has a final boiling point not exceeding 300 degree. C. (23). Kerosene, which is (ordinary used as an illuminant in oil burning lamps) and aviation turbine fuel, that is to say, any hydrocarbon (oil excluding mineral colza turpentine substitute) which has a smoke point of eighteen millimeters, or more and has a final boiling point not exceeding 300 degree. C. (23). Thus, placing reliance on these definitions, orders and judgments the petitioner has tried to make out the case that the conclusion, which has been drawn by the respondents that the liquid transported by the tanker was kerosene and was illegally transported by the petitioners, is not only contrary to law but also the facts and circumstances of the case. (24). Learned counsel for the petitioner further submits that confession of the driver cannot be considered to prove guilt against the petitioners. The Bombay High Court in the case of State vs. Kaikhushroo Merwan Irani & Ors., reported in STC 1958 (Bombay) Page 681. In this case the accused was charged with the offence of knowingly false returns under Section 36 of the Bombay Sales Tax Act, 1953 and the evidence that was produced to prove the charge was a statement admitting the offence made by the accused to the Sales Tax Officer who was authorized to investigate the offence by the Collector under Section 38(I). The Bombay High Court has held that the Sales Tax Officer would be a police officer within the meaning of Section 25 of the Indian Evidence Act and therefore, the statement made to that officer, which amounted to a confession, was not admissible in evidence. (25). Similar view has been taken by the Calcutta High Court in the case of Bhulakiram Koiri vs. State, reported in 1970 Crl. L.J. Page 403. Wherein the Calcutta High Court has held that confession made to private person in presence of police officer is inadmissible in evidence, following the Apex Courts judgment reported in AIR 1956 SC Page 217. (26). Mr. Shah, learned counsel for the petitioner submits that mere by one transaction, person does not become a Dealer. In support of his submissions, he referred judgment rendered by Honble Supreme Court in the case of Bijaya Kumar Agarwala vs. State of Orissa, reported in AIR 1996 SC Page 2531. (26). Mr. Shah, learned counsel for the petitioner submits that mere by one transaction, person does not become a Dealer. In support of his submissions, he referred judgment rendered by Honble Supreme Court in the case of Bijaya Kumar Agarwala vs. State of Orissa, reported in AIR 1996 SC Page 2531. The Honble Supreme Court while dealing with `Storing of Goods has observed that persons merely found moving in trucks with Paddy in excess of quantity permitted to be `stored - By itself would not amount to `Storing of goods. (27). `Storing has an element of continuity as the purpose is to keep the commodity in store and retrieve it at some future date, even within a few days. A vehicle can also be used as a store house. But whether in a particular case, a vehicle was used as a `store or whether a person had stored his merchandise in a vehicle would be a matter of fact in each case. Carrying goods in a vehicle cannot per se be `storing although it may be quite possible that a vehicle is used as a store. Transporting is not storing. (28). The Orissa High Court in the case of Prem Bahadur vs. State of Orissa, reported in 1979 Crl. L.J. Page 683 has observed that transshipment in a moving vehicle would not amount to storage within the meaning of the Orissa Order. Similar view has been taken by the Mysore High Court in the case of Narasappa vs. State of Mysore, reported in 1970 Crl. L.J. Page 298. (29). The Honble Supreme Court in the case of Manipur Administration vs. M. Nila Chandra Singh, reported in AIR 1954 SC Page 1533 has held that Dealer- Essential requirement of- There must be carrying on of business of purchase, sale or storage- Such transactions or retail dealings in lesser quantities not sufficient. (30). Learned counsel for the petitioner placed reliance on the judgment rendered by Bombay High Court in the case of The State vs. Munafkha Lukmankha Pathan, reported in AIR 1968 Bombay Page 298. Wherein the Bombay High Court while dealing with Clause 2 of Licensing Order has observed that the prosecution must establish, before a person can be said to be a dealer, that he was engaged in the business of purchase, sale or storage for sale. (31). Wherein the Bombay High Court while dealing with Clause 2 of Licensing Order has observed that the prosecution must establish, before a person can be said to be a dealer, that he was engaged in the business of purchase, sale or storage for sale. (31). After placing reliance on the aforesaid judgments, learned counsel for the petitioner submits that even admitting the fact that the petitioners were transporting the kerosene illegally and in violation of provisions of Act of 1955, but they were transporting the kerosene at the instances of others while charging fare. Hence, no offence under the Essential Commodities Act is made out against the petitioners. (32). Learned counsel for the petitioner submits that the money has been recovered by selling the seized kerosene and the tanker which was confiscated, is still lying in the custody of the respondents. It is prayed that the orders impugned passed by the Collector as well as Session Judge be quashed and set aside and the vehicle-Tanker may be released in favour of petitioner even considering the provisions of Section 6-A and 6-B of Act of 1955. In support of his submissions, he placed reliance on the judgment rendered by Calcutta High Court in the case of M/s. Munilal Bhagwat Sharan & Ors. vs. The Chief Commissioner Superintendent, Eastern Railway & Ors., reported in AIR 1972 Calcutta Page 405. The Calcutta High Court has held that if the authorities do not have an open mind before hearing, the provision for hearing under the statute becomes an idle formality. (33). With regard to seizure of Tanker, learned counsel for the petitioner placed reliance on the judgment rendered by the Karnataka High Court in the case of Krishna Bhima & Ors. vs. State, reported in 1979 Crl. L.J. Page 977, wherein the High Court has held that it is the duty of the Court to give such an option to the person before directing the confiscation of the truck. It is contended that the petitioner at the time of passing of confiscation order, it was duty of the Court to give an option to pay fine in lieu of confiscation of the tanker. (34). It is contended that the petitioner at the time of passing of confiscation order, it was duty of the Court to give an option to pay fine in lieu of confiscation of the tanker. (34). The Andhra Pradesh High Court in the case of G. Subbarama Naidu vs. The Joint Collector, Chittoor District & Ors., reported in AIR 1986 Andhra Pradesh Page 82 while dealing with case of Essential Commodities Act more particularly Section 6-A, has observed that refusal to release vehicle because it was involved in series of offences is not justified. It should be released on owner furnishing security equivalent to price of essential commodities sought to be carried by it. (35). Herein in the instant case, the commodity is already sold and money has been deposited with the respondents. In such eventuality the confiscated tanker be released in favour of petitioner. As the proviso make it abundantly clear that the Legislature in its wisdom felt that the vehicle need not be confiscated even if it is involved in a series of offences and it should be released if the owner is prepared to pay fine not exceeding the market price at the date of seizure of the essential commodities. (36). The Karnataka High Court in the case of Rudolph Fernandes vs. The Deputy Commissioner, Mangalore, reported in AIR 1984 Karnataka Page 106 has observed that if the second proviso to Section 6-A is read with comma after the words "Market Price", and again after "Seizure", it will indubitably establish that the market price relates only to the "essential commodity sought to be carried." If intention was to recover market price of the vehicle as fine there was no necessity for the legislature to use so many words in the second proviso to the Section and its intention to collect market price of the vehicle as fine could have been succinctly expressed by starting "not exceeding its market price." (37). Heard learned counsel for the petitioner as well as learned Public Prosecutor. Perused the orders impugned passed by the courts below, judgments cited before me as well as record of the case. So far as confiscation is concerned, it is not disputed that at time of seizure of tanker, admittedly the tanker was carrying 11000 liter liquid, which alleged to be kerosene of blue colour. Perused the orders impugned passed by the courts below, judgments cited before me as well as record of the case. So far as confiscation is concerned, it is not disputed that at time of seizure of tanker, admittedly the tanker was carrying 11000 liter liquid, which alleged to be kerosene of blue colour. It is also not disputed that by smelling it reveals that the oil, which was carried in the tanker, was kerosene. At the time of seizure, neither the driver was having purchase order, nor having valid permit or permission to carry the kerosene from Jhunjhunu to Delhi. (38). Admittedly, as averred by the petitioners counsel that the petitioner is not Dealer, as defined in Rajasthan Trade Articles (Licensing & Control) Order, 1980 and Clause-3 of Kerosene (Restrictions on Use & Fixation of Ceiling Price) Order, 1993. The petitioner No. 1 is the tanker owner and simply transport the goods on charging fare. The petitioner No. 2 is driver, who at the instance of petitioner No. 1 simply driving the vehicle and transport the goods/liquid from particular place to another. (39). It is also not disputed that the petitioner was not having valid license or authority to transport or carrying the liquid/kerosene. As observed herein above, the petitioners cannot be (40). It is not the case of the respondents that earlier to this occasion, the tanker of the petitioner was confiscated while transporting the kerosene oil. Admittedly, it was solitary instance. It is admitted by the respective parties that the alleged kerosene found in the tanker was sold in the market and money has been deposited with the respondents. (41). Now the only question left is to consider that tanker, which has been confiscated be release in favour of petitioner or not. Considering over all facts and circumstances of the case, it is no doubt that the petitioner No. 1 has transported the kerosene in contravention of provisions of Act of 1955. As observed herein above, the money is already deposited by selling the kerosene, therefore, no charge under the Act of 1955 can be made merely on the basis of confession of petitioner No. 2- Driver as held by the Bombay High Court in the case of State vs. Kaikhushroo Merwan Irani & Ors. (42). As observed herein above, the money is already deposited by selling the kerosene, therefore, no charge under the Act of 1955 can be made merely on the basis of confession of petitioner No. 2- Driver as held by the Bombay High Court in the case of State vs. Kaikhushroo Merwan Irani & Ors. (42). So far as impugned orders passed by the Collector and Session Judge, Jhunjhunu for confiscation of tanker are concerned, to the extent of seizure of tanker, the orders impugned passed by the Collector and Session Judge, Jhunjhunu are hereby quashed and set aside and the Tanker be released in favour of petitioner No. 1 after verifying the essential documents like, registration certificate, insurance papers etc. (43). The Session Judge, Jhunjhunu is directed to release the tanker No. HNT-4131 in favour of petitioner No. 1 on furnishing the undertaking that in future he will not use the tanker in transporting the goods, comes under the Act of 1955 without having any valid permit or license to transport the same. The petitioner is also directed to furnish solvent security equivalent to the market value of tanker. (44). In future, if the petitioner founds indulged in transporting the essential commodities without valid permit or licence, the respondents are at liberty to confiscate the same and forfeit the solvent security furnished by the petitioner. (45). In the result, the criminal revision petition stands partly allowed. (46). The stay application stands disposed of.