The court may grant probation despite minimum sentencing under the Essential Commodities Act based on a convict's circumstances, emphasizing rehabilitation where appropriate.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal, filed by the appellant under Section 374 of the Cr. P.C., is directed against the judgment and order dated 12.02.1996 passed by the learned Sessions Judge-cum- Special Judge, Bolangir in 2(c)C.C No.1 of 1994/T.R. No.4 of 1994, whereby the learned trial Court has convicted the accused-appellant for the offences punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter ‘E.C. Act’ for brevity) and, accordingly, sentenced him to undergo R.I. for three months besides fine of Rs.500/-, in default, to further undergo R.I. for one month.

2. The prosecution case in brief and terse is that on 27.08.1993 at about 5.15 P.M., P.W.1 the then Marketing Officer and P.W.3, the then A.C.S.O. along with other supply staff of Bolangir when checked the grocery shop of the appellant located at Jagannathpada of Bolangir town, they found that the appellant was dealing with Kerosene oil. On further verification, it was found that he had stored 14 containers of Kerosene oil in his shop. On weighing, it was about 200 liters of Kerosene Oil. However, on demand of the authorities to store such quantity of Kerosene, the appellant failed to produce any license or any other relevant documents in support of his dealing with such commodity namely Kerosene oil and hence the appellant was charged for the alleged commission of the offence under the E.C. Act.

3. The prosecution in order to bring home charges examined three witnesses. P.W.1 was the then Marketing officer. P.W.2 was an independent witness, who was claimed to be present at the place of occurrence and P.W.3 was the then A.S.C.O (an official of the Supply Department).

4. The learned trial Court analysed the evidence on record in detail and returned the following findings:-

“P.W. who has submitted the P.B. has supported his own case as to the fact of checking and seizure of 14 tins of kerosene oil from the grocery shop of the accused. His evidence is amply supported and corroborated by P.W.3 the then A.C.S.O. True, the only independent witness examined by the prosecution has not supported the case of the prosecution but it is observed in a case law reported in (1989) 2 OCR at page 206 (Madhusudan Mahapatra vrs. State of Orissa) which is a case u/s 7 of the E.C. Act for violation of clause-8 of the Orissa Kerosene Control Order, 1962 that a seizure can be established by the sole evidence of officer affecting the seizure. The evidence of the investigating officer affecting the seizure convincing – such evidence is not to be rejected because the witness to the seizure do not support the prosecution version. This being the proposition of law when the evidence of P.Ws.1 and 3 are not shaken in any manner during their cross- examination even if P.W.2 the independent witness has not supported the case of the prosecution there is no reason to disbelieve the seizure of 14 tins of Kerosine oil from the grocery shop of the accused.”

5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually the learned trial Court recorded the guilt of the appellant by concluding as under:

“Admittedly the accused has neither any license nor has any valid document in support of his dealing with the kerosene oil Therefore, the accused has contravened Clause-8 read with S.R.O. No.264/88 of the Orissa Kerosene Control Order, 1962 Therefore, he is liable for conviction u/s 7(1)(a)(ii) of the Essential Commodities Act. ”

6. Aggrieved by the aforementioned judgment of conviction and order of sentence pa