Mitter, J. - (1.) There are three Rules before us, the first to show cause why an order of confiscation of 34 bundles of yarn should not be set aside, the second as to why a substantive sentence of imprisonment should not be imposed in respect of the offence said to have been committed by the petitioner, and the third as to why the petitioner's conviction and the sentence imposed upon him should not be set aside.
(2.) The petitioner was at all material times a dealer in yarn holding a 'D' Group license under the West Bengal Cotton Cloth and Yarn Control Order, 1948. The prosecution case against, the petitioner was that on 25/6/1954, he sold a quantity of yarn to P.W. 2 for which no cash memo was either prepared or given to the purchaser. Soon after the purchase, the petitioner was challenged but he was unable to produce the relative cash memo for the sale in question. In the shop were found 34 bundles of cotton yarn which were seized by the Police. On the above facts the petitioner was charged with an offence under Section 7(1), Essential Supplies Act (Act 24 of 1946) for contravention of Clause 19(1), West Bengal Cotton Cloth and Yarn Control Order, 1948. Upon the evidence adduced the learned Magistrate convicted the petitioner of the offence and sentenced him to pay a fine of Rs. 100.00, in default to suffer R. I. for 2 months. The learned Magistrate also ordered the confiscation to the State of the 34 bundles of Yam seized by the Police.
(3.) It is clear that a conviction under Section 7(1), Essential Supplies Act 'must be followed by a sentence of imprisonment. Section 7(1) is in these terms : "If any person contravenes any order under Section 3 relating to cotton textiles, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine and any property in respect of which the order has been contravened or such part, thereof as to the Court may seem fit shall be forfeited to the Government." In view of the mandatory provision of Section 7, the learned Magistrate was in error in not imposing a sentence of imprisonment. The section provides for a sentence of imprisonment a fine and for forfeiture of the property or a part thereof in respect of which an offence is committed.;