State of Orissa vs D.M. Sahu and Another

B.K. Ray, J.—A prosecution report was made against opposite parties alleging that they having carried more than the permissible quantity of rice from the district of Sambalpur to that of Dhenkanal in a single conveyance without a permit had contravened the provisions of Sub-clause (2) of Clause 3 of the Orissa Rice (Control on Inter-district Movement) Order, 1973 (hereinafter called the ''Order'') issued u/s 3 of the Essential Commodities Act, 1955 (hereinafter called the- ''Act'') and thereby made themselves liable to punishment u/s 7(ii) of the Act. Upon this report the opp. parties were tried in the Court of the Sub-divisional Judicial Magistrate, Rairakhol, found guilty, convicted and sentenced to pay a fine of Rs. 200/ - each, in default to rigorous imprisonment for fifteen days. As substantive punishment is compulsory u/s 7 of the Act and as the opp. parties after having been found guilty u/s 7 of the Act were let off with a fine of Rs. 200/ - each only, the pres en t revision has been started on Court''s own motion.

The case of the prosecution as made out in the trial Court against the opp. parties is as follows: At about 4. 00 a. m. on 24-9-1974 a jeep bearing O.R.S. 3181 with trailer O.R.C. 182 was found coming from Sambalpur side and proceeding to Dhenkanal. The vehicle was stopped and checked by the Civil Supplies staff. The same was found carrying 11 bags of M.B. coarse rice loaded in the trailer, as per the statement of Dulamoni Sahu (opp. party No. 1), the owner of the vehicle, and of Sadananda Swain (opp. party No. 2), the driver, both of whom were in the vehicle which was proceeding to Handapa in Dhenkanal district. The opp. parties further admitted that they had purchased the rice from one Ganesh of Dhanupali of Sambalpur district. The vehicle with the 11 bags of rice it was carrying was seized and brought to the place of Shri L.N. Agarwalla, business man of Rairakhol, for weighment. The stock was weighed in the presence of witnesses and was found to be A weighing 10. 87 quintals of rice including the gunny bags. On these allegations it was said that the opp. parties had contravened Sub-clause (2) of Clause 3 of the Order.

On the prosecution report being submitted on the above allegations the opp. parties were produced in the trial Court and the substance of the prosecution case constituting the offence u/s 7 of the Act was explained to them. The opp. parties admitted their guilt. It was upon this admission the trial Court found the opposite parties guilty and punished them as mentioned above.

The procedure adopted in the trial Court in the trial of the opp. parties was one of summary in nature as provided u/s 262, Criminal Procedure Code. It is not disputed before me that the learned Magistrate who tried the opposite parties had not been invested with powers to try the opposite parties in a summary way as provided in the said section. Thus, there can be no objection to the procedure adopted in the trial Court.

Under Sub-clause (2) of Clause 3 of the Order no person shall import or attempt to import rice exceeding such quantity in weight in the aggregate as prescribed in any single conveyance from one district to another except under and in accordance with a permit issued by the Controller of Supplies, Collector or by any officer authorised in that behalf by the State Government. By notification dated 24-11-1973 bearing S.R.O. No 1024/73 issued by the Government of Orissa in pursuance of item (i) of the second proviso to Sub-clause (2) of Clause 3 of the Order Government bad fixed six quintals of rice in weight as the quantity for the purpose of the said item. It is also not disputed that the opp. parties had no valid permit at the time they were found carrying the aforesaid quantity of rice. The trial Court, therefore, rightly held that the opp. parties were carrying more than the permissible quantity. As has been noticed earlier, the opp. parties after being explained about the substance of the prosecution case on their production in the trial Court admitted their guilt. So, the trial Court was perfectly right in holding the opposite parties guilty and convicted them u/s 7 of the Act. But as regards sentence, Section 7 of the Act provides that If any person contravenes any order made u/s 3 of the Act, he shall be punishable in the case of any order made u/s 3 of the Act except an order made with reference to Clauses (h) and (i) of Sub-section (2) of Section 3 with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: provided that the Court may for any adequate or special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than three months Mr. P.K. Dhal, learned Counsel for the opp. parties, concedes that there has been violation of the order and that the opp. parties are liable to punishment u/s 7 of the Act. This concession is well founded. It was not the case of the opp. parties that out of the rice seized in the case half belonged to one and the remaining half to the other and that each one of them was carrying his portion of rice for himself only. If such a case would have been made out in course of the trial a case u/s 7 of the Act might have failed against them. But as the records show, no such stand was taken by the opp. parties and both of them admitted to have committed the offence. Their only plea in the trial court was that they were not aware of the relevant order and the notification. Ignorance of law is no excuse. Therefore, the opp. parties have been rightly found guilty and Mr. Dhal is right in not challenging the conviction, as has been pointed out above. Section 7 of the Act provides for a minimum period of imprisonment of three months and fine. This minimum period, however, for adequate and special reasons can be reduced to a period of less than three months. The trial Court should not have let off the opp. parties after having found them guilty with a fine only. At this stage Mr. Dhal on behalf of the opp. parties relying upon Section 4 of the Probation of Offenders Act, 1958 says that the opposite parties should be given benefit of that section. To give them the benefit under that section the opp. parties should have moved the trial Court whereupon their case would have been referred to the concerned Probation Officer for report. The Probation of Offenders Act provides that the Court may allow a convict the benefit u/s 4 thereof after consideration of the upon of the Probation Officer concerned. The opp. parties not having moved the trial Court to treat their case u/s 4 of the Probation of Offenders Act it would not be proper at this stage to allow the opp. parties the benefit of that section without a report from the Probation Officer concerned. The result therefore is that the order of conviction passed by the trial Court must stand and the order of sentence passed by it must be modified in compliance with the provisions of Section 7 of the Act. Nothing has been shown that the opp. parties were habitually dealing in illegal trade in rice in contravention of the order. They have taken the plea that without knowing the provisions of law they were carrying rice from Sambalpur to Dhenkanal. The quantity of rice carried is just above the maximum limit fixed by Govt. notification. In these circumstances, a lenient view has to be taken and the ends of justice will be met by sentencing the opp. parties to a fine of Rs. 200/ - each, in default to rigorous imprisonment for fifteen days and to imprisonment till the rise of the Court.

I, therefore, allow the revision, confirm the order of conviction and modify the order of sentence passed by the trial Court against the opp. parties by saying that they shall be sentenced to pay a fine of Rs. 200/ - each, in default to rigorous imprisonment for fifteen days and imprisonment till the rise of the Court. Steps be taken for arrest of the opp. parties to undergo the sentence as per this order.