A consumer who possesses kerosene without a license is not liable for an offence under Section 7(1)(a)(ii) of the Essential Commodities Act.

DEEPAK MISRA, J.

( 1 ) INVOKING the revisional jurisdiction of this Court under Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') the petitioner calls in question the propriety of the judgment of conviction and order of sentence passed by the learned Sessions Judge-cum-Special Judge, Bolangir, in G. R. Case No. 12/1988 (T. R. No. 11/88) wherein he has been found guilty of an offence under Section 7 (1) (a) (ii) of the Essential Commodities Act (in short 'the Act') and sentenced to undergo rigorous imprisonment for a period of three months.

( 2 ) BRIEFLY stated, the prosecution case during the trial is that on 25-1-1988, the accused petitioner was found carrying kerosene oil weighing 35 liters in two tins. As he had no licence as required under the Orissa Kerosene Control Order, 1962 (hereinafter referred to as 'the Control Order') he was prosecuted under Section 7 of the Act for contravention of the aforesaid control. order. The accused pleaded innocence.

( 3 ) THE prosecution to substantiate the charges examined two witnesses. P. W. 1 is the Police Constable who had found the accused carrying kerosene. P. W. 2 is the then Officer-in-charge of Sindhol Police-Station who on production of the accused and the kerosene by P. W. 1, seized the kerosene under seizure-list, Ext. 2, after obtaining the signature of the accused.

( 4 ) THE learned Sessions Judge-cum-Special Judge, taking into consideration the suggestion of the defence came to hold that it had been admitted that he was in possession of the kerosene in question. However, the plea advanced by the accused-petitioner that the licenced kerosene dealer had sent the seized kerosene through him to distribute the same to consumers of Kutumunda village, which came within the dealer's allotted area was not dealt with. The trial Judge believed the version of the prosecution and came to hold that as the accused was in possession of the kerosene in contravention of the Control Order, he was liable to be punished under the provisions of the Act.

( 5 ) IT is pertinent to state here the learned trial Judge in his judgment had referred to the decision of this Court in the case of Radheshyam Pradhan v. State (1993) 6 OCR 309, wherein this Court had held that the Notification of the Government S. N. O. No. 264/82 prohibiting possession of kerosene does not cover consumer. He also referred to the decision in the case of Pravash Candra Bachar v. State, (1992) 5 OCR 158 : (1992 Cri LJ 1721) wherein this Court had held that the State Government has power to regulate the possession and that an individual possessing kerosene in excess of 10 liters without a licenses commits contravention of the Control Order incurring the liability under Section 7 (1) (a) (ii) of the Act. The aforesaid decision being earlier in point of time, was followed by the learned trial Judge and accordingly he convicted the petitioner.

( 6 ) WHEN this matter came up for hearing, Hon'ble Justice D. P. Mohapatra (as his Lordship then was) finding apparent conflict in the aforesaid two decisions, thought it appropriate to get an authoritative pronouncement on the point by a Division Bench and accordingly, the matter was referred. A Division Bench by its judgment dated 3-5-1994 answered the reference. Hon'ble C. J. C. T. Nanavati, (as his Lordship then was) speaking for the Court expressed thus :"we, therefore, answer the question by stating that the Orissa Kerosene Control Order, 1962 does not apply to a consumer. We, however, make it clear that a person who poses to be a consumer but is really found to be doing business in kerosene would be covered by the Control Order, and that would depend upon the facts of each case. . . . . . . "

( 7 ) AFTER the reference has been answered, the matter has come for final hearing. In view of the position of law enunciated by the Division Bench it is to be seen whether the petitioner was really doing business in kerosene or not. Admittedly, he was fo