A person's mere presence in a shop does not establish conscious possession or ownership necessary for conviction under the Essential Commodities Act when lacking sufficient evidence.

JUDGMENT :

G.SATAPATHY, J.

1. This is an appeal U/S. 374(2) of the code of criminal procedure, 1973 (in short “Cr.P.C.”) against the judgment of conviction and order of sentence passed on 02.02.1993 by learned Sessions Judge-cum-Special Judge, Bolangir in II(C) C.C. Case No. 04 of 1992 (Tr. No. 05 of 1992) convicting the appellant Premnath Sahu for commission of offence U/S. 7(1)(a) of the Essential Commodities Act, 1955 (In short “E.C.Act”) and sentencing him to undergo Rigorous Imprisonment for a period of three months.

2. Prosecution case in brief is, on 24.12.1990 at about 04.30 PM, the C.S.O. and staff after forming an enforcement squad raided the grocery shop of the appellant located at Khambeswaripali and found fifteen liters of kerosene oil in a tin container along with two measuring instruments, but on demand the appellant could not produce any document for possession of such kerosene oil and disclosed before the Authority of the squad that his father was the owner of the shop and in possession of such quantity of kerosene oil which is more than ten liters and the enforcement squad, thereby, finding the possession of such quantity of kerosene oil to be in contravention of clause-7(1) and clause-8 of S.R. No. 264/1982 of the Odisha Kerosene Control Order, 1962. On the aforesaid facts, the Inspector of supplies, Sonepur placed P.R. against the appellant and his father for commission of offence punishable U/S. 7(1)(a) of the E.C. Act after completing the inquiry. Accordingly, the appellant and his father stood a trial before the learned Special Judge, Bolangir who by the impugned judgment convicted and sentenced the appellant indicated above while acquitting the father of the appellant.

3. It appears from the written notes of arguments of the appellant that in assailing the impugned judgment of conviction and the order of sentence, the appellant through his learned counsel Mr. S.Panda, submits that neither there is any evidence against the appellant for selling the kerosene oil nor at the relevant time, was he the owner of the shop in which the kerosene oil was allegedly seized and no document was in fact seized in this case to find out the ownership of the shop with the appellant and the so called signature of the appellant on the relevant paper, under Ext.2 was taken under duress and, thereby, the same cannot be relied upon to convict the appellant. It is further submitted that there is no evidence to the effect that the appellant was transacting any business at the time of seizure of the kerosene oil, but the learned trial Court without taking into consideration the evidence in proper prospective convicted the appellant by ignoring the defence evidence adduced by the appellant and, thereby, the conviction of the appellant being unsustainable in the eye of law is required to be set aside. Mr. S. Panda, learned counsel for the appellant by his written notes of arguments, accordingly, prays to allow the appeal by exonerating the appellant from the charge.

3.1. In reply to above written arguments of the appellant, Mr. S.S. Pradhan, learned A.G.A., by reiterating his contentions appearing in the written arguments filed for the State, vehemently opposes the prayer of the appellant by inter alia submitting that the learned trial Court has not committed any illegality in convicting the appellant as he was found in conscious possession of the 15 liters of kerosene oil which is in clear violation of Kerosene Control Order, 1962 and, thereby, the conviction of the appellant cannot be faulted with. Learned counsel for the State, however, conceded to the extent of extending benefit of Probation of Offender Act, 1958 instead of sentencing the convict at