JUDGMENT
P.K. Tripathy, J.
1. Heard argument from the parties, hearing is concluded and the Judgment is as follows.
Judgment and order of conviction passed by Learned Sessions Judge-cum-Special Judge, Sundargarh in 2(c) CC No. 7 of 1988 (T.R. No. 11 of 1988) is under challenge. Accused as the Secretary of Samaleswary Consumers Co-operative Store, Sundargarh, faced the trial for committing breach of Condition Nos. 2(b) and 1(b) of the Orissa Rice and Paddy Control Order and the Orissa Wheat Control order respectively, making out an offence under Section 7(1)(a)(i) of the Essential Commodities Act, 1955 (in short ‘the Act’).
2. According to the case of the prosecution, in course of a chance detection of lifting of less quantity of food-grain by two retail dealers, the business premises/godown/Store of the Co-operative Society was searched and verified relating to stock and storage. Accused as the Secretary of the Society, co-operated with the Supervisor (P.W. 5) and the Supply Staff besides an Executive Magistrate. In course of verification it could be learnt that rice and wheat had been stored in more than one place’s and the other place of storage was not notified to the verifying Authorities though the condition of licence stipulates so. In course of the trial, accused admitting about the verification of the stock and store, advanced defence plea that the other places of storage was always known to the officers in the Supply Department and therefore, there was no malafide intention of the accused to commit any offence. He advanced further defence plea that the President and the Board of Directors being responsible to the Society, the prosecution against him as the Secretary is not maintainable to shoulder a criminal liability.
3. On analysis of the facts and evidence on record, Learned Sessions Judge-cum-Special Judge recorded the finding in favour of the aforesaid allegations, and referring to the Bye-Law Ext. 17, found that the Society is to sue or to be sued for any legal action through the Secretary. Thus, keeping in view the language in Section 7 of the Act and the aforesaid lapses on the part of the Society in not notifying the place of storage other than the notified places in the licence, found the accused guilty of the above noted contravention. Learned Sessions Judge did not feel it proper to grant benefit of Probation of Offenders Act in favour of the accused-Appellant and accordingly sentenced him to rigorous imprisonment for one year and to pay a fme of Rs. 500/-(five hundred).
4. Learned Counsel for the Appellant reiterates the contentions raised in the Court below about excluding the Secretary from the liability. When the fact of verification and storage of articles in a place other than the notified store in the licence is proved on record and when the provision in the Bye-Law, as referred to by Learned Sessions Judge, clearly brings home the liability of the Secretary, the aforesaid argument of the Appellant is of no merit. Under such circumstance, there is nothing to interfere with the impugned order of conviction.
5. Learned Counsel for the Appellant argues that the incident occurred as back as in the month of March, 1988 and in the meantime over 19 years have already elapsed. The accused-Appellant, who was then 45 years old, has grown old beyond the age of 60 years and, therefore, taking into consideration all such facts and circumstances, the substantive sentence be revoked. Learned Standing Counsel though opposes to such a prayer, but this Court finds the approach of Learned Counsel for the accused-Appellant to be considered being reasonable. Accordingly, accepting that prayer of the accused, the sentence is modified. Accused is sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 500/-(five hundred) or else to undergo the default sentence imposed by the Court below. He shall serve the substantive sentence by appearing before the Sessions Judge-cum-Special Judge, Sundargarh on 10th December, 2007. In the meantime the L.C.R. along with a copy of this Judgment be sent ensuring its reaching in the Court of Sessions Judge, Sundargarh in time.
6. The Criminal Appeal is accordingly dismissed but with the aforesaid modification in sentence.
If the Appellant does not appear before the Sessions Judge, Sundargarh on the date assigned, then coercive steps be taken against him.