P.D. Rajan, J.

1. Appellant, who is the accused in ST No. 25/199 on the file of Special Judge for Essential Commodities Act, Thrissur challenges the judgment of conviction and sentence under Section 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'EC Act' for short). He was sentenced to imprisonment for six months and fine of Rs. 2,000/-, in default of payment of fine, imprisonment for six months. The facts necessary for indictment were that on 07/08/1992 at 4.15 p.m. the Rationing Inspector, Kozhikode inspected the house of the appellant and detected 1010 litres of kerosene kept in 5 big barrels in his courtyard and one small barrel in the bath room, in the house No. RP11/214 of Velipram Amsom Desom, Ramanattukara. Immediately he reported the matter to his higher authorities and as per their direction reported the matter to the Feroke Police, where they registered a crime and after completing investigation, laid final report in the Trial Court.

2. During trial, prosecution examined PWs 1 to 8 and marked Exts. P1 to P12 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The Trial Court, after analysing the evidence, convicted the appellant. Being aggrieved by that judgment, he filed this appeal.

3. The learned Counsel appearing for the appellant contended that in a prosecution under Kerosene Control Order, it is mandatory to find out the flame height for identifying the seized article as kerosene. If the flame height of kerosene is not identified by conducting a smoke test, the trial will be vitiated.

4. The learned Public Prosecutor contended that the seized article was kerosene which was stated in the chemical examination report and no question was asked in the Trial Court about the smoke test. The offence was detected before repealing the 1st schedule to the Central Excise and Salt Act 1944 and mineral oil seized from the possession of the accused is kerosene and no interference is necessary.

5. Now the first question to be considered in this case is whether the prosecution has proved that the seized articles are kerosene? Secondly, if so the appellant had violated the Kerosene Control Order and he was in possession of huge quantity of kerosene as alleged? When an offence is created by a special Statute and the mode in which the penalty should be imposed is provided in that Statute, it can proceed in that manner and impose that penalty in the mode provided therein alone and no other mode. At the same time, when the provision of an Act imposes a particular test for finding out any offence, such provision must be strictly construed and do not create any implied presumption. For this, I have verified the allegation in this case and examined what is the meaning of the word kerosene, in the Kerosene Control Order, 1968 and Kerosene (Restriction on use and fixation of Ceiling Price) Order, 1993. The Kerosene Control Order, 1968 was issued by the Government for maintaining the kerosene and for securing its equitable distribution and availability at fair price. The definition of 'Kerosene' in Clause 2(f) of the Kerosene Control Order 1968 defined that "Kerosene" shall have the meaning assigned to it in item No. 7 of the first Schedule to the Central Excise and Salt Act, 1944 (Central Act 1 of 1944) and shall not include Aviation Turbine Fuel. Subsequently, the Central Excise and Salt Act 1944 First Schedule was omitted and the Kerosene (Restriction on use and fixation of ceiling price) Order, 1993 published in the Gazette of India, Extraordinary, Part II, Clause 3(i) dt. 02/09/1993, in Clause 2(e) "kerosene" defines as follows.

"(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 35C and smoke point at a minimum of 18 mm."

A plain reading of the definition extr