JUDGMENT

B.K.NAYAK, J.

1. This Government Appeal has been filed challenging the judgment dated 28.02.1989 passed by the learned S.D.J.M., Jagatsinghpur in Vigilance G.R. Case No.8 of 1982 (Trial Case No. 67 of 1985) acquitting the accused-respondent of the charge under Section 7 of the Essential Commodities Act.

2. The respondent was charged under Section 7 of the Essential Commodities Act for non-compliance of conditions 3 (c), 4, 6 and 7 of the licence granted to the respondent under Clause 4(4) of the Cement Control Order, 1973 which is said to be in violation of Clause 17(C) of the said control order. Prosecution case as per the FIR lodged by the Inspector (Vigilance), Jagatsinghpur is that on 19.02.1982 at 2.30 P.M. One Ushamani Dei of Harisinghpur, P.S. Tirtol appeared at the Squad Office and reported that though she was permitted by the S.D.O., Jagatsinghpur to purchase 10 bags of cement, when she approached the respondent, who was the stockiest of the cement, demanded Rs. 7/- in excess of the actual price for each bag of cement. On such information, the informant visited the cement godown of the respondent at Jagannathpur being accompanied by Sri Chhayakanta Rout, Supervisor on 20.02.1982 at 12.30 P.M., but the respondent was then present in his adjacent cloth store. The stockiest was reluctant to allow the informant to inspect the god own for physical verification of the cement stock. It was only at 3.30 P.M. on 20.02.1982 the informant was allowed to inspect when he found that the respondent had not displayed the stock of cement in his possession and the sale price of cement at any place either outside or inside his business premises as required under the Orissa Cement Control Order, 1973. Physical verification of the stock revealed that there were 80 bags of cement in the possession of the respondent but his book of accounts revealed that he had a book balance of 248 bags and prior to the inspection he had sold 10 bags of cement to two persons of Katara village on 04.02.1982 and 22 bags to some persons of Jagannathpur but mistakenly he had mentioned to have sold 17 bags. Accordingly, there was shortage of 153 bags of cement. The informant seized the available 80 bags of cement along with book of accounts, sale register and cash memo in presence of witnesses. These deficiencies amounted to violation of clause 17(C) of the Cement Control Order, which is punishable under Section 7 of the Essential Commodities Act.

3. The accused-respondent denied the charge and pleaded innocence. His further plea is that on 20.02.1982 his shop was closed and, therefore, he could not display price board and the stock board and that the cash memo and permits were with his salesman, as a result of which, he could not reflect the same in the sale register.

4. The Trial Court formulated two questions, viz :

(i) Whether the accused failed to display the stock 'in his price board?

(ii) Whether he failed to maintain the sale register?

In proof of the prosecution case, seven witnesses were examined whereas the accused examined one witness in his defence. P.W.1 is the woman, who reported the matter to the informant about charging of excess price by the accused. P.Ws. 2, 4, 5 and 6 are seizure witnesses. P.W.3 is the son of P.W.1 and P.W.7 is the I.O.. On consideration of the evidence on record, the Trial Court came to the conclusion that though there is evidence of seizure of some documents and cement bags from the accused, but the evidence of prosecution witnesses is not clear whether at the time of inspection of the shop of the accused was open and the transaction was going on. During the evidence by D.W.1 the salesman of the accused, 32 number of permits covering sale of a total of 154 bags of cement were produced for which the Trial Court came to the conclusion that there was no shortage of cement bags in the godown as alleged by the prosecution. It was further found that for the very same reason the confiscation proceeding initiated under Sectio