S. Acharya, J. -
(1.) THIS is an appeal under Section 417(1), Code of Criminal Procedure against the order dated 9 -2 -1970 of the Sub -divisional Magistrate, Puri, in 3(c) C.C. No. 73 of 1967 acquitting the accused (Respondent herein) of the charges under Sections 7(ii) and 9(i) of the Essential Commodities Act, 1955,(hereinafter referred to as the 'Act ').
(2.) THE accused was prosecuted on the, allegations that on 20 -5 -1967 the Inspector of Supplies (p.w. 1) found on inspection and physical verification that there were shortages of Q1. 90 Kgs. of, sugar, 88 kgs. of suji, 18 kgs. of wheat and excess of 5 kgs. of Maida and 4 kgs. of Atta in the shop of the accused 'when compared with the ' book balance kept in that shop. The accused was a licensed dealer in essential, commodities having his shop and godown at Laxmi Bazar in the Puri town. On 19 -5 -1967 at about 7 p.m., p.w. 5, who was the local M.L.A. and the Deputy Speaker of the Orissa Legislative Assembly at that time, received a phone message from somebody to the effect that the accused was selling sugar in the 'black ' market and so there was a 'Golmal' between the accused and some customers near his shop. P.w. 5 proceeded to the spot and on hearing some complaints against the accused, p.w. 5 wanted to inspect the relevant registers and the stock position of the controlled commodities in the shop of the accused. The accused voluntarily showed the account books to p.w. 51 who thereafter made a physical verification of the stock of such commodities in that shop and found that the stock in hand of the essential commodities therein did, not tally with the book balance maintained in that shop. So p.w. 5 informed the matter on phone to the Civil Supplies Officer, the Superintendent of Police, the District Magistrate and to the Officer then in the local police station. When p.w. 5 was inspecting and verifying the registers and the actual stock position in the shop, he found that a few bags of Suji, wheat, and other things were brought by the N.C.C. people to that shop, and the persons in that truck wanted to deliver those articles to the accused. P.w. 5, however, did not allow delivery of those articles to the accused and directed those persons to take those articles to the police station. As the concerned authorities did not come to the spot at night, p.w. 5 offered Satyagraha and slept in the varandah of that shop throughout the night. The Civil Supplies Officer, the Inspector of Supplies and the Officer -in -charge of the local police station arrived at the shop on 20 -5 -1967 and verified the stock position of the, essential commodities in that shop. P.w. 1, the Inspector of Supplies weighed the essential commodities in that shop, but could not ascertain the shortage or excess of those articles in the relevant registers had by then been seized by the police. The relevant registers were made available to p.w. 1 on 21 -5 -1967 on which date he ,verified the stock with reference to the registers and found that there was shortage of Q1.90 kgs. of sugar, 18 kgs. of wheat and 88 kgs. of Suji. He further found that there was excess of 51 kgs. of Maida and 4 kgs. of Atta in the shop. He submitted his written report (Ext. 7) to the Civil Supplies Officer to the above effect requesting therein for the cancellation of the licence issued to the accused. Later, on 23 -5 -1967 p.w. 1 submitted the prosecution report (Ext. 3) against the accused, on which he was prosecuted. The defence put up by the accused is that the shortage of sugar and Suji found by p.w. 1 was due to the fact that the local Civil Supplies Officer had asked the accused on phone to supply the said quantities of the aforesaid commodities to the N.C.C. Administrative Officer (d.w. 1). as he wanted the same in connection with the Zonal N.C.C. camp held at Puri in May, 1967. The Civil Supplies Officer had informed the, accused that the N.C.C. Administrative Officer had applied for the supply of the aforesaid commodities to the Civil Supplies Officer for the aforesaid N.C.C. camp. The said articles were accordingly supplied to the N.C.C. Administrative Officer on the distinct understanding that he Would return equal quantities of those articles to the accused as soon as a permit for the same was obtained be the said officer. With regard to the shortage and/or excess of the other commodities, namely wheat, Atta, and Maida, the plea of the accused is, that, the calculation and weighment of the stock of those articles as made by p.w. 1 were incorrect and the accounts maintained by him with regard to those commodities were perfectly correct.
(3.) THE Court below on a lengthy and convincing consideration of the evidence on record found that the deficit and excess in respect of wheat, Atta and Maida as found by p.w. 1 as stated above, were very negligible in comparison with the large scale sales and the stock in band in that shop. It has also been found on the evidence on record that the stock in hand of the aforesaid commodities was at to different places in the shop, and p.w. 1, who actually made the weighments, admitted that slight mistakes might have been committed in weighing the stock of the aforesaid articles. P.w. 1 has also stated that in selling articles to different persons shortage of about one kg. in each quintal may be occasioned. The accused -dealer, as admitted by p.w. 1, was dealing in about 200 quintals of wheat per year and at the relevant time he had in stock 14 quintals 54 kgs. of wheat, 3 quintals 53 kgs. of Atta and 1 quintal 1 kg. of Maida at two different places in the shop. Thus the deficit of 18 kgs. of wheat, worked out at 1.25 per cent of the stock, and the excess of 4 kgs. of Atta and 51 kgs. of Maida, worked out at 1 per cent and 5 per cent respectively of the stock in hand may be considered as negligible. Moreover, the accused had in his shop Atta and Maida meant for sale without any ration card as admitted by p.w. 1 So the Court below was justified in arriving at the finding that it has not been established In this case that the accused intentionally or knowingly maintained false or incorrect accounts of Atta, Maida and wheat in his shop. On the above -mentioned facts it is difficult to say beyond reasonable doubt that the deficiency in this respect was caused intentionally and/or with the knowledge of the accused. Accordingly the accused cannot be held guilty in respect of the above mentioned shortage or excess in wheat, Atta and Maida.;