KEDAR LAL MARWARI Vs. STATE

JUDGEMENT

(1.) The petitioner has been convicted under Section 7 of the Essential Commodities Act, 1955, hereinafter to be referred to as "the Act" and sentenced to pay a fine of Rs. 300/- in default, to undergo rigorous imprisonment for three months. He was tried summarily in the court of a munsif Magistrate under the provisions of Section 12-A of the Act. It was alleged that the petitioner sold five kilograms of flour at the rate of 50 paise and 51 paise per kilograms as against the controlled and fixed price of 48 paise per kilogram. According to the prosecution, Ramroop Singh, Supply Inspector, went to the shop of the petitioner on the 10th of September, 1964, and seized the sale register in presence of the Mukhiya. On Checking the register he found that the petitioner had sold flour at the rate of 50 to 51 Naya paise per kilogram. It appears that the petition of complaint dated the 5th of November, 1964, was sent by the Supply Inspector on the basis of which the Subdivisional Magistrate took cognizance on the 20th of November, 1964, under Section 7(1)(a)(ii) of the Act, transferring the case to the file of Sri B.P. Verma, Munsif Magistrate, 1st Class, Khagaria, for disposal. In the trial court the petitioner took, inter alia, the following defence, (1) that no sale rate had been fixed at 48 paise per kilogram, (2) that there was no promulgation of any such sale rate and (3) that he was entitled to sell at the rate of 50 or 51 paise per kilogram by adding the cost of transport to the sale rate fixed by the Government from the place of delivery at Khagaria to the place of sale at Rani Sakarpura.

(2.) The learned Munsif Magistrate in the summary trial followed the procedure of a summons case. Upon consideration of the evidence adduced by the prosecution and the defence, he came to the finding that the petitioner was guilty under Section 7 of the Act and he sentenced him to pay the fine as stated above. Being aggrieved by the judgment and order of the Musif-Magistrate, the petitioner filed an application in revision before the Sessions Judge, Monghyr. When the application was heard by the 1st Additional Sessions Judge, Monghyr; a point was taken on behalf of the petitioner about the jurisdiction of the Munsif Magistrate to try the case summarily. It was contended that as the alleged offence had been committed between 13th August 1964 and 17th August 1964 and 27th August 1964 and 28th August, 1964, the provisions of Section 12-A of the Act were not applicable and the petitioner should have been tried by a regular court in accordance with the provisions of the Code of Criminal Procedure The learned Additional Sessions Judge did not accept the contention and held that the provisions of Section 12-A of the Act were applicable to the trial of the petitioner. The learned Additional Sessions Judge however, considered the evidence on the record as a court of appeal also and came to the finding that the prosecution proved that the sale rate was fixed at 48 paise per kilogram, that the petitioner had notice of the same and that he sold at a higher rate. He then applied his mind on the question whether the petitioner was entitled to the cost of transport over above the rate fixed by the Government. While dealing with that question, he observed that the petitioner had no mens rea and as such it would have been better for the authority to have merely warned the petitioner or called for an explanation from him and not to have instituted a case against him. As he did not find any illegality in the order of conviction, he declined to make a reference to this Court. The petitioner then filed this petition in revision which was admitted on the 13th of May, 1966. The learned single, Judge while admitting this application also passed an order for issue of notice to the petitioner to show cause why in the event of his conviction being upheld, the sentence should not be suitably enhanced. This case accordingly was placed before this Bench for hearing.

(3.) Learned Counsel appearing for the petitioner raised the following main contentions: