The court held that an offender under the Essential Commodities Act can be granted probation despite a statutory minimum sentence, especially considering age and lack of prior offenses.

JUDGMENT :

S.S. Mishra, J.

This appeal is directed against the judgment dated 03.04.2001 passed by the learned Special Judge, Koraput at Jeypore in T.R. Case No. 38 of 1998, whereby the appellant, Padma Charan Swain was convicted for the offence under Section 7 of the Essential Commodities Act, 1955 read with Clause 3 of the ORISSA RICE AND PADDY CONTROL ORDER , 1965, and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for one month. The co-accused, Jatindra Kumar Swain, the son of the appellant, was acquitted of all charges.

2. The case of the prosecution, in brief, is that on 07.10.1997 at around 1:30 PM, the Marketing Inspector of Sunabeda inspected a grocery shop allegedly owned by the appellant but operated by his son, Jatindra Kumar Swain, located at Semiliguda in Koraput District. At the time of inspection, accused Jatindra Kumar Swain was present in the shop and allegedly conducting business. The Marketing Inspector found that the stock and price board was not displayed as required under the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. Upon physical verification, he found stored in the shop 16 quintals and 26 kilograms of common rice, along with other essential commodities such as Mung Dal, Arhar Dal, Black Gram, Suji, and Flour in quantities exceeding permissible limits. The accused could not produce any licence authorizing such storage or sale. Consequently, the Marketing Inspector seized the stock after weighment, and a seizure list and weighment chart were prepared at the spot, duly signed by the accused and witnesses.

3. Upon further investigation, it was revealed that while the shop was in the name of Padma Charan Swain, his son, Jatindra Kumar Swain, was in fact a student and not actively engaged in business. The ownership and responsibility for the stock were traced back to the present appellant, Padma Charan Swain, his father. The prosecution accordingly filed the case under Section 7 of the Essential Commodities Act, alleging contravention of Clause 3 of the ORISSA RICE AND PADDY CONTROL ORDER , 1965 and Clause 3 of the Declaration Order.

4. The defence of the appellant was one of denial. Both accused persons, during their examination under Section 313 Cr.P.C., claimed that the seized stock did not belong to them. Jatindra Swain, who also deposed as D.W.2, stated that the shop was closed and was opened only at the instance of the Inspector. He claimed the rice was stored inside the house for personal use. Padma Charan Swain, on the other hand, claimed the stock belonged to one Haranarayana Mishra, who had produced the rice from his own agricultural field and had stored it temporarily in the appellant's house.

5. The prosecution examined only two witnesses. P.W.1 was an independent witness to the seizure and P.W.2 was the Marketing Inspector who conducted the inspection. Both had deposed regarding the presence of excessive stock and lack of licence. The defence examined two witnesses, including the accused Jatindra Swain and a witness to the seizure.

6. The learned trial Court, after evaluating the evidence on record, came to the conclusion that the defence plea regarding Haranarayana Mishra was an afterthought, noting that no such suggestion was made during cross-examination of the prosecution witnesses, and that said Mr. Mishra was not examined by the defence. The Court disbelieved the shifting versions of the defence and held that storage of rice exceeding 10 quintals, regardless of whether in a shop or residence,