STATE Vs. BABAJI SAHOO

JUDGEMENT

(1.) IN a criminal trial before the Sub -divisional Judicial Magistrate of Rairakhol the opposite party Babaji Sahu and one Abatar Singh were convicted, on their own plea of guilty, under Section 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 Section 401 Criminal Procedure Code, has power to enhance the sentence in the absence of an appeal against the inadequacy of sentence under Section 377 Criminal Procedure Code 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:

(3.) IT is not disputed that there has been violation of the provisions of clause 3 of the Orissa Rice (Control on Inter -district Movement) Order, 1973 issued under Section 3 of the Essential Commodities Act, 1955. It is also not disputed that in a case of this type a substantive sentence of imprisonment is compulsory. The learned Magistrate committed an illegality in awarding a sentence of fine only.