STATE OF ORISSA Vs. G. SEETARAM SWAMY
LAWS(ORI)-1978-10-14
HIGH COURT OF ORISSA
Decided on October 06,1978

STATE OF ORISSA Appellant
VERSUS
G. Seetaram Swamy Respondents

JUDGEMENT

J.K.Mohanty, J. - (1.) OPPOSITE party, G. Seetaram Swamy was convicted under Section 7(1)(a)(ii) of the Essential Commodities Act (hereinafter to be referred to as the 'Act') for contravention of Clause 3 of the Orissa Declaration of Stocks and Prices of the Essential Commodities Order. 1973 (hereinafter to be referred to as the 'Order of 1973') for failure to display in his shop a list indicating the opening stock of essential commodities such as torch cells by the Sub -divisional Judicial Magistrate, Jeypore. The learned Magistrate also directed forfeiture of the seized articles. Against the order of forfeiture passed by the learned Magistrate, opposite party preferred Criminal Appeal No. 11 of 1976 before the Sessions Judge, Koraput. Jeypore, who set aside the order of forfeiture and directed return of the seized articles to the opposite party. Against this order of the learned Sessions Judge directing return of the seized articles to the opposite party, the present revision has been filed by the State Government.
(2.) IT is submitted on behalf of the State that once there is a conviction under Section 7(1) of the Act, under Section 7(1)(b) of the Act the Court is bound to forfeit the property in respect of which the Order of 1973 has been contravened. Section 7(1)(b) of the Act and Clause 3 of the Order of 1973 are quoted below for reference; Section 7(1)(b): any property in respect of which the order has been contravened shall be forfeited to the Government; Clause 3: Every dealer of essential commodities shall display prominently in the shops or showrooms a list indicating the opening stock of such commodities and retail selling prices thereof each day and indicate on each unit of item of the said commodities, where possible, the sale price by having the sale price either printed on the commodities or on the container or packet thereof, or by means of rubber stamp or by sticking a label on such commodity. It is submitted that as the accused -opposite party has been convicted under Section 7(1)(a){ii) of the Act, the properties are bound to be forfeited and the learned Sessions Judge committed an illegality in directing return of the properties to the opposite party. On the other hand, it is submitted by the learned Counsel for the opposite party that no offence has been committed with respect to any property and there was no failure to display the opening stock of essential commodities and as such the provisions of Section 7(1)(b) of the Act will not be attracted. In this case on 9 -7 -1976 between 10.00 A.M. and 12 noon shop of the opposite party was searched. It was found that the opening stock of torch cells as mentioned in the Board was less than that was actually found in the stock. As for instance, as against 30 torch cells of 1.055 type mentioned in the Board as opening stock, actually 128 torch cells were found in the shop.
(3.) IT is argued on behalf of the learned Counsel appearing for the opposite party that the opposite party was required to mention the opening stock of the essential commodities and, in fact, he had mentioned the opening stock of torch cells in the Board and had complied with the provisions of Clause 3 of the Order. But by the time the search was made, the opposite party had effected some sale of the above articles and hence the difference in the opening stock as mentioned in the board and the stock found at the time of search. The prosecution has not established the fact that the Petitioner had not correctly mentioned the opening stock of the essential commodities and that at the time they searched the premises of the opposite party, the shop was just opened. In the absence of any such evidence, it cannot be said that the opening stock was not correctly mentioned in the board and so the opposite party cannot be said that he had violated the provisions of Clause 3 of the Order. There is enough force in the above contentions of the learned Counsel for the opposite party. In fact, in this case the prosecution has not at all adduced any evidence. As the accused -opposite party has admitted his guilt, he has been convicted and sentenced as aforesaid. In order to come within the mischief of Clause 3 of the Order, it must be shown that the opening stock as indicated by the opposite party was not correct. But as there is no evidence to that effect, it cannot be held that the opening stock mentioned in the Board by the opposite party was not correct. So in view of this, it is difficult to hold that the accused -opposite party has contravened the provisions of Clause 3 of the Order and it cannot be said that there is any contravention of any order with respect to any property and as such the properties cannot be forfeited.;


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