JUDGMENT
A.S. Naidu, J.
1. This appeal has been filed challenging the order of conviction passed by the Sessions Judge-cum-special Judge. Sundargarh under Section 7 of the Essential Commodities Act and sentencing the appellant to undergo simple imprisonment for six months and to pay a fine of Rs. 200.00 in default to undergo simple imprisonment for one month more.
2. On the basis of a prosecution report submitted by the Market Intelligence Inspector, Uditnagar, Rourkela, 2 (c) CC No. 6 of 1984 was initiated against the appellant which was subsequently converted to T.R. No. 6 of 1984 and was tried by the Sessions Judge-cum-Special Judge, Sundargarh. Bereft of all unnecessary details, the allegations levelled against the appellant in the prosecution report are that on 23.11.1983, the Market Intelligence Inspector along with the Additional Civil Supply Officer and other Civil Supply executive staff checked the stock and accounts of Baby Food available with the appellant. Admittedly the appellant was a retailer in baby food and possessed a Baby Food retail licence bearing No. 110 of 1983. In course of such inspection it was detected that a stock of 64 packed tins of Vijaya Spray of 500 grams each and 17 packed tins of Lactogen (Full Protein) of 500 grams each were found in possession of the appellant which were not accounted for and were in excess of the accounts maintained by him. It was also detected that the appellant shop-owner had not exhibited the board displaying the stock and prices of Vijaya Spray and Lactogen baby food which contravened Clause 3 of the Baby Food Licensing Order, 1966. According to the prosecution report, non-maintaining the accounts and possessing excess baby food contravened conditions (4) and (9) of the Licence issued under the Orissa Baby Food Licensing order, 1966 which also in term violated Clause 3 of the aforesaid Order of 1966. After seizure of the excess stock, prosecution report was submitted which culminated, as stated earlier, in T.R. No. 6 of 1984.
3. To substantiate the allegations against the appellant, prosecution examined three witnesses, out of whom P.Ws. 1 and 2 were the employees of the Civil Supply Department and P.W.3 was the only independent witness. The defence of the appellant was that he had duly displayed the stock and prices of Vijaya Spray and Lactogen on a board which was beside a bigger board containing the stock and price of several other articles of the shop. According to the appellant, he was dealing in grocery and as per the rules and orders he had displayed the names of articles he was dealing in. The further plea of the appellant was that the Civil Supply authorities did not seize all the registers though produced, and in fact the registers in connection with baby food like Vijaya Spray and Lactogen (Full Protein) were intentionally not seized in order to harass him.
4. The trial Court after discussing the facts and circumstances of the case, arrived at the conclusion that the appellant had in fact not displayed the stock position and price of baby food in question and had thereby contravened the provisions of Clause 10 of the Orissa Baby Food Licensing Order, 1966, It was also held that the appellant had not duly maintained the stock of the baby food which was in his hand and was seized in his presence and thus contravened conditions (4) and (9) of the Baby Food Licence and thereby was deemed to have contravened Clause 3 of the Baby Food Licensing Order, 1966. The trial Court also categorically held that the appellant was liable to be punished under Section 7 of the Essential Commodities Act. On the basis of such findings, the trial Court held the appellant guilty under Section 7 of the Essential Commodities Act and convicted and sentenced thereunder. The appellant, as stated above, has filed this appeal inter alia challenging the said order of conviction and sentence.
5. Mr. D. K. Misra, learned counsel appearing for the appellant, strenuously placed before me the evidence, both oral and documentary, and contended that the shop of the appellant was situated in a busy market place. In spite of such fact, prosecution for reasons best known to it examined only one independent witness, i.e. P.W.3. The rest two witnesses, i.e. P.Ws. 1 and 2 were the official witnesses. Mr. Misra also forcefully submitted that a perusal of the evidence of P.W.3 would clearly reveal that he had seen a small board displaying the stock and prices of Vijaya Spray and Lactogen and that the said board was placed beside the bigger board. In fact, the board was produced before the trial Court and has been marked as M.O.II. He also drew my attention to the evidence of P.W.3 who has categorically stated under solemn affirmation that he had not actually seen the seizure, but had signed the seizure list on being asked by the Civil Supply officials. P.W.3 also in his deposition categorically stated that previously he had purchased baby food from the shop of the appellant and whenever he used to purchase baby food he used to sign a register maintained by the appellant. According to P.W.3, the appellant produced some records and registers before the Civil Supply officers, out of which only some were seized and the rest were returned to him. It was also stated by him that many people had gathered during the time of seizure, including one Raju Sahu and Ors., who were the neighbouring shop-owners. Placing reliance on the aforesaid statements made by P.W.3, Mr. Misra submitted that prosecution was bound by the evidence of P.W.3 who had categorically stated that all the account books produced by the appellant were not seized by the Civil Supply Officers and in fact the said books contained the accounts in respect of Vijaya Spray and Lactogen. It was further stated that due to laches of the Civil Supply Officers who failed to seize all the registers produced by the appellant, the appellant cannot be found fault with.
6. Surprisingly, prosecution did not produce nor exhibited the licence granted under the provisions of the Orissa Baby Food Licensing Order, 1966 in favour of the appellant. However, the learned trial Court called for the said licence. A copy of the said licence is available on the lower Court records. Clause (4) of the Licence stipulates that the licensee shall maintain a register of daily accounts in Form No. III showing correctly all transactions of Baby Food in his possession. It shall also show the opening stock of each day, the quantities and brands received on each day and the quantities sold, delivered or otherwise disposed of on each day as well as the closing stocks of each day. On being confronted with the said fact, Mr. Mishra, relying upon a decision reported in AIR 1978 KLT 291 (Abdula Koya v. State) submitted that contravention of any of the provisions of the licence would not attract the rigours of Section 7 of the Essential Commodities Act. According to Mr. Mishra, if any of the provisions of the licence is contravened, the licence is liable to be cancelled and excess stock is liable to be confiscated. But no prosecution under Section 7 can be launched.
7. Learned Addl. Standing Counsel, however, strenuously repudiated the said argument and forcefully submitted that a reading of Section 7 vis-a-vis Section 3(2)(d) makes it crystal clear that violation of any of the provisions of the Licence shall also be deemed to be contravention of the provisions of Section 3 of the Essential Commodities Act, thereby punishable under Section 7 of the said Act.
8. Section 7 of the Essential Commodities Act provides penalties to be imposed if any person contravenes any Order made under Section 3 of the said Act. Section 3 of the Act confers power to control production, supply, distribution, etc. of essential commodities. Baby food is no doubt an essential commodity. Sub-section (2)(d) of Section 3 provides for regulating storage, transport, distribution, disposal, acquiescence, use or conversion of any essential commodity by means of a licence. A cumulative reading of the aforesaid two provisions, according to me, brings any contravention of the terms stipulated in the Licence issued under the Baby Food Licensing Order, 1966 within the purview of Section 7 of the same would amount to an offence under the Act. The decision cited by Mr. Mishra, learned counsel for the appellant, is also not a clear answer to the proposition advanced by him and I am not persuaded to accept the same. As the law stands, contravention of any of the terms and conditions of a Licence issued under any of the Orders like Baby Food Licensing Order, etc., shall also attract the provisions of Section 7 and the delinquent is liable to be prosecuted under the Essential Commodities Act.
9. Be that as it may, without entering into the aforesaid controversies, I feel that in view of the clear admission by one of the prosecution witnesses, i.e. P.W.3, who was the only independent witness examined by the prosecution who has categorically stated that though other registers were produced by the appellant those were not seized by the Civil Supply officials, a cloud of suspicion arises with regard to the seizure. The said statement also supports the defence plea that in fact the appellant was maintaining the stock registers in accordance with the Licence, but the authorities did not seize the same although the same were produced. P.W.3 was the only seizure witness, but he has disowned the seizure, inasmuch as he has stated that he had not seen the seizure and had signed the seizure list on being requested by the Civil Supply Officials. A further fact which goes in support of the defence is that though several other independent witnesses were available, prosecution chose not to examine any of them and the only witness examined by it, namely, P.W.3 has not supported its case.
10. The prosecution report was filed as long back as in 1983 and about nineteen years have elapsed in the meanwhile. A cumulative assessment of all the facts and circumstances persuades me to allow this appeal specially in view of the fact that prosecution has not succeeded, to prove the guilt of the appellant beyond reasonable doubts and there are a number of gaps in between which have not been satisfactorily blocked. I am therefore inclined to allow the appeal and set aside the order of conviction and sentence passed against the appellant.
11. In the result, the Criminal Appeal is allowed. The impugned judgment of the Sessions Judge-cum-Special Judge, Sundargarh dated 29.11.1986 is set aside. The conviction and sentence passed against the appellant are set aside and he is acquitted of the charge.