The trial of a warrant-case as a summons-case is an illegality and vitiates the trial.

JUDGMENT :

G.K. Misra, J. - The Petitioner has been convicted u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) and sentenced to undergo R.I. for ten days.

2. Prosecution case is that on 28-10-1905 the Petitioner sold 7 Kg. of superfine II rice at the rate of 88 paise per Kg. although the controlled price for the same was fixed at 77 paise. The Petitioner violated the provisions of the Orissa Rice Maximum Prices) Order, 1964 (hereinafter referred to as the Order). The defence plea was that the Petitioner sold the aforesaid class of rice to p.w.2 at the rate of 75 per Kg. The learned (Magistrate accepted the prosecution version. Against the order of conviction the criminal revision has been filed as the sentence of imprisonment being for 10 days no appeal lies u/s 12-A (3) of the Act.

3. The only point raised by Mr. Rao is that an offence punishable under the aforesaid section is (triable as) a warrant-case. In the summary trial, the procedure prescribed for the trial of summons-case and not for warrant-case was followed. The trial was vitiated add accordingly the order of conviction is illegal and must be set aside.

The contention requires careful examination.

4. Section 3, Sub-section (1) of the Act lays down that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies' 'of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.

Sub-section (2)(c) prescribes that without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide for controlling the price at which any essential commodity may be bought or sold.

5. It is under the aforesaid provision the order was made. Clause (1) of the Order is to the effect that the maximum wholesale and retail prices of rice of fair average quality sold at any of the places specified in column (1) of schedule I for the, varieties specified in Schedule II shall not exceed the price specified in column (3) or column (4), as the case may be, of Schedule I. In column (1) of schedule I the names of places have been given. The Petitioner is alleged to have sold the rice in village Padwa. It is the common case of the parties that the village does not come within item (J) of column (1). 'It must therefor come under item (2) in column (1) of Schedule I which has prescribed the price for "any place" other than the places specified in item (1). Reference to column (4) shows that retail price for superfine II rice is fixed at 74 paise per Kg. (See Supply Department Notification No. 25424-S. dated 21-11-1964 published in Orissa Extraordinary Gazette No. 1689, Cuttack, dated 23-11-1964). The learned trial Court in its judgment wrongly referred to the maximum retail price of 77 paise mentioned against item (1) in column (1). This aspect of the matter should have been kept in view by the trial Magistrate. If the Petitioner was selling at a higher price than the one prescribed in the order, he would be clearly guilty of an offence u/s 7(1)(a)(ii) of the not which enacts that if any person contravences any order made u/s 3, he shall be punishable in the case of any other, not referred to in (1), with imprisonment for a term which may extend to three years and shall also be liable to fine.

6. Section 4(1)(w) of the Code of Criminal Procedure (hereinafter referred to as the Code) defines "warrant-case". It means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year.

An offence u/s 7(1)(a)(ii) is punishable with a sentence of imprisonment for a term of three years and thus relates to a warrant-case.

7. The procedure for summary trial is prescribed in Chapter XXII of the Code. Section 262 of the Code runs thus-

Sub-section (