The High Court has the power to enhance the sentence in the absence of an appeal against the inadequacy of sentence, and a substantive sentence of imprisonment is mandatory for contravention of orders made under S.3 of the Essential Commodities Act, 1955.

JUDGEMENT

1. In a criminal trial before the Subdivisional Judicial Magistrate of Rairakhol the opposite party Babaji Sahu and one Abatar Singh were convicted, on their own plea of guilty, under S.7 of the Essential Commodities Act, 1955 for transporting Q. 8. 77. 500 Grams of rice from Sambalpur to Cuttack in contravention of the provisions of clause 3 of the Orissa Rice (Control on Interdistrict Movement) Order, 1973 read with Government of Orissa Notification No.32228-FG-IC-32/73 (SRO No.1024/73) dated 24th November, 1973 and were sentenced to pay a fine of Rs.200/- each or in default to undergo R.I. for 15 days each although in a case of this type substantive sentence of imprisonment is mandatory. Attention of this Court having been drawn to the inadequacy of sentence, the present proceedings were started suo motu and notices were issued to both the accused persons to show cause why the sentences passed on them should not be enhanced. In pursuance of the notice, the opposite party Babaji Sahu has appeared through his Advocate to show cause. As the notice on Abatar Singh could not be served for want of correct address, the proceeding as against him was dropped as per order No. 6 dated 21-4-77.

2. A question has been raised as to whether the High Court in revision under S.401 Cr. P.C., has power to enhance the sentence in the absence of an appeal against the inadequacy of sentence under S.377 Cr. P.C. The legal position has been made clear by a recent decision of the Supreme Court reported in AIR 1977 SC 1177: (1977 Cr LJ 964), (Eknath Shankarrao v. State of Maharashtra) wherein their Lordships laid down as follows:

"We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the Slate Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under S.397 read with S.401 Cr. P.C., 1973, inasmuch as the High Court can 'by itself' call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of S.401 (4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under S.401 (4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code."

In another judgment in the case of Nadir Khan v. The State (Delhi Administration): 1975 UJ (SC) 549: (1976 Cr LJ 1721), the Supreme Court held as follows:

"S.401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions under S.401 read with S.386 (c) (iii) Cr. P.C., are clearly supplemental to those under S.377 whereby appeal are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be. There is therefore absolutely no merit in the contention of the learned counsel that the High Court acted without jurisdiction in exercising the power of revision suo motu, for enhancement of the sentence in this case."

3. Section 7 of the Essential Commodities Act provides, inter alia, that if a person contravenes any order made under S.3 of the Act, he shall be punishable in the case of any order made under S.3 of the Act except an order made with reference to clauses (h) and (i) of sub-s. (2) of S.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 and special reasons to be mentioned in the judgment, impose a sentence of impri