1. Appellant, Munnalal, has been convicted under section 3/7 of the Essential Commodities Act and sentenced to one-year simple imprisonment and a fine of Rs. 5,000/- or, in default of payment of fine, three months simple imprisonment by the impugned judgment dated 3.10.1991 passed in Special Criminal Case No. 20/1986 by the Special Judge, Jabalpur.

2. According to the prosecution case, M/s. Nemchand Munnalal had a licence to sell kerosene oil as semi wholesale dealer at Panagar, District Jabalpur. On 24.8.1986 at about 11:30 a.m. Food Inspector S.K. Jain (PW 1) inspected the business premises of M/s. Nemchand Munnalal in the presence of appellant. During inspection it was found that stock register was maintained till 23.8.1986 and the opening balance of the stock of kerosene oil on that date was shown as 2400 liters. Since 200 liters of kerosene oil was sold on 23.8.1986, the opening balance of the stock for 24.8.1986 ought to have been 2200 liters, but on physical verification the stock of kerosene oil was found only 1340 liters. Thus, there was a short fall of 860 liters of kerosene oil, which was unlawfully disposed of. It was also found that actual stock and selling price of kerosene oil were not exhibited on the rate list. As the appellant and co-accused Nemchand were found to have contravened conditions 3 (ii), 4, 5 and 7 of the licence under the Madhya Pradesh Kerosene Dealers Licensing Order, 1979 (hereinafter referred to as "the 1979 Order") they were charge sheeted under section 3/7 of the Essential Commodities Act. The stock of 1340 liters of kerosene oil was seized vide Ex. P-1 and given on supurdnama to the appellant. The stock register was, however, neither seized nor produced during the trial.

3. Co-accused Nemchand died during the trial. The trial Court, therefore, by order dated 27.9.1991 dismissed the case against him as abated.

4. The defence of the appellant was that he is innocent and had been falsely implicated merely because he refused to grease the palms of Food Inspector S.K. Jain (PW 1). The appellant also pleaded that M/s. Nemchand Munnalal was a proprietary firm of which Nemchand alone was the owner and, therefore, his prosecution under section 3/7 of the Essential Commodities Act was illegal. The appellant examined Mukul Sharma (DW 1), Lal Bahadur Yadav (DW 2) and Kashi Prasad Soni (DW 3) as defence witnesses in order to establish his defence.

5. The appellant did not dispute that Food Inspector S.K. Jain (PW 1) inspected his business premises before him on 24.8.1986. The trial Court, after appreciating the evidence and materials on record, convicted and sentenced the appellant as aforesaid.

6. It was argued on behalf of the appellant that since the licence was in the name of M/s. Nemchand Munnalal, he could not be convicted for contravention of the conditions of licence. It was also argued that the prosecution could have proved the shortfall of kerosene oil only by the seizure and production of the stock register in the Court and not by the oral evidence of Food Inspector S.K. Jain (PW 1). On the other hand, the learned Government Advocate has defended the conviction and sentence of the appellant as passed by the trial Court.

7. The prosecution has not exhibited the licence, the contravention of which has resulted into the conviction of appellant under section 3/7 of the Essential Commodities Act. The burden was on the prosecution to prove that appellant was the licensee. For this the prosecution should have not only produced the licence but also the application for grant of licence, which would have shown as to who applied for the licence and for whom the licence was applied for. It has been held by the trial Court that the licence was in the name of proprietary firm M/s. Nemchand Munnalal, which was registered in that name under the Madhya Pradesh Sales Tax Act on 12.6.1956 when the appellant was not even born. The elder brother of appellant was also named Munnalal and after his death when the