SHYAM PATRO Vs. STATE

JUDGEMENT

(1.) BOTH these revisions arise out of the one and the same case, and, therefore, were heard together and are being disposed of by this common judgment. The two Petitioners have been convicted under Section 7 (l) (a) of the Essential Commodities Act for having contravened Clause 15 of the Orissa Cement Control Order, 1973 (hereinafter referred to as the ''Control Order '') and have been sentenced to undergo rigorous imprisonment for six months each and to pay a fine of rupees one thousand each, in default to undergo further rigorous imprisonment for one month.

(2.) PETITIONER T. Susila Patra who is Petitioner in Criminal Revision No. 183 of 1983 is the wife of T. Shyam Babu Patro who is Petitioner in Criminal Revision No. 190 of 1983, They stood their trial for having contravened the provisions of Clauses 11 (2), 15, 16 and 17 of the Control Order as well as Conditions 2 and 6 of the Licence issued under the said Order, but the prosecution having failed to establish regarding violation of Clauses 11 (2), 16 and 17 they have been acquitted of the said charges by the learned Magistrate. Their conviction in question is, however, for the contravention of Clause 15 of the Control Order and the said conviction has been upheld by the learned Additional Sessions Judge in appeal.

(3.) MR . Padhi, the learned Counsel for the Petitioners, contends that Clause 15 makes liable only the stockist who contravenes the provision. ''Stockist '' is defined in Clause 2 (h) to mean, a person who holds a licence under the order to deal in cement for the purpose of selling to a consumer. Since the licence in the present case stands in the name of T. Susila Patra, it is she who will be the stockist and not her husband, T. Shyam Babu Patro, and consequently, no liability can be fastened on T. Shyam Babu Patro. This point unfortunately has not been raised in the Courts below, but this being a pure question of law, I permitted the learned Counsel for the Petitioners to urge the same. It is stated in the prosecution report itself that Smt. T. Susila Patra is the licencee as a cement stockist under the name and style of M/s. Balaji Traders, but the transactions of the firm are managed by her husband, T. Shyam Babu Patro and that is why the prosecution report was given against both. But Clause 15 makes liable only the stockist and, therefore, the husband who was managing the business cannot be penalised for violation of the provision of Clause 15. In that view of the matter, the contention of Mr. Padhi, the learned Counsel for the Petitioners, in this regard must be sustained and the conviction of T. Shyam Babu Patro is accordingly set aside. Criminal Revision No. 190 of 1983 is, therefore, allowed.