1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.313 OF 1998 Vishwanath s/o Ramling Raut Age 37 years, Occu.Service, R/o Wagholi, Taluka and District Osmanabad ..APPELLANT (Orig.Accused) VERSUS The State of Maharashtra ..RESPONDENT Mr.S.S.Chillarge, Advocate holding for Mr.V.G.Sakolkar, Advocate for appellant Mr.K.B.Choudhari, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS, J. DATE : 27th SEPTEMBER 2010 ORAL JUDGMENT 1. The appellant, who stands convicted for an offence punishable under Section 3 read with section 7 of the Essential Commodities Act and sentenced to simple imprisonment for three months and to pay fine of Rs.100/- in default of which to undergo further simple imprisonment for seven days, by the Special Judge, Osmanabad by judgment dated 16.9.1998, in Special E.C.Case No.22/1996, by this appeal questions the correctness of his conviction and sentence. 2. The entire evidence against the appellant-accused rests on the solitary testimony of P.W.1. P.W.1 James Ambildhage, a C.I.D. 2 Inspector, who was attached to the Police Station, Osmanabad on 17.8.1995 received information, along with his staff and the panchas went on the road in front of the S.T.stand. He noticed the appellant riding on his motorcycle No.MTN-8179. He stopped the motorcycle and checked the tank. The fuel in the tank was smelling of kerosene and he accordingly collected the sample and seized it. The remaining quantity of fuel in the petrol tank came to be collected in a tin which also came to be seized by him. 3. The seized sample was referred for examination to the Chemical Analyser and the report of the Chemical Analyser at Exh.13 indicates that it was kerosene. Accordingly, a charge- sheet against the appellant came to be filed. 4. On committal of the case to Special Court, particulars of the offence came to be explained to the appellant-accused, who denied the same. Prosecution examined three witnesses, namely P.W.1 James Ambildhage, P.W.2 Shivaji and P.W.3 Bapu. Unfortunately, during the trial P.W.2 Shivaji and P.W.3 Bapu did not support the prosecution and were declared hostile. The conviction, therefore, rests on the sole testimony of P.W.1 James Ambildhage. 3 5. Learned Counsel for the appellant has urged before me that no reliance can be placed on the solitary testimony of P.W.1 James Ambildhage about seizure of the sample from the petrol tank of the motorcycle belonging to the appellant-accused. According to him even if it is assumed that P.W.1 James had drawn a sample, there is no evidence that the sample which was drawn from the fuel in the petrol tank was sealed and was kept in the sealed condition in the Malkhana of the Police Station till it was forwarded to the Chemical Analyser. The carrier has not been examined as a witness. In the absence of any evidence relating to the sealing of the sample, according to me the possibility of tampering of the sample cannot be ruled out. In such circumstances, the appellant-accused deserves to be given the benefit of doubt. 6. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. His bail bonds stand cancelled. ( P.V.HARDAS ) JUDGE (vvr/313.98criapeal) 4