S. Acharya, J.
1. The petitioners stand convicted under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'Act'), for violating the provisions of clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 (hereinafter referred to as the 'Order') by not declaring, as required under the Order, the stock position of cycle tyres and tubes in their shop in Baripada town. They have been sentenced thereunder to undergo R.I. for one month and to pay a fine of Rs. 500/-each, in default to undergo R.I. for a period of one month more.
2. The prosecution case, in short, is that on 4-7-1975 P.Ws. 1 to 3 (three Inspectors of the local Supply Department) inspected the shop of the petitioners, and on verification of the stock of the essential commodities in that shop they found that there were 41 cycle tyres and 76 tubes of different brands in that shop, but the petitioners had not displayed any list indicating the said stock in that shop and thus they violated clause 3 of the Order.
3. Petitioner No. 1, while not disowning his ownership of the shop in question, has stated that he was not in the shop at the relevant time. He of course asserted that the stock position had been displayed in the board in the shop. Petitioner No. 2 has denied all the allegations against him and has stated that at the relevant time he was a student in the local college and he had nothing to do with the shop in question.
4. The courts below have found that at the time when P.Ws. 1 to 3 inspected the shop in question the list of the opening stock of the essential commodities in the shop as stated above was not displayed in the display board as required under clause 3 of the Order. The trial court finds that petitioner No. 1 was the owner of the shop in question and petitioner N. 2 was conducting business in that shop at the relevant time. On the above findings the petitioners have been convicted and sentenced as stated above.
5. Mr, Dhal, the learned Counsel for the petitioners;, at the outset urged that the finding of the courts below, that petitioner No. 2 (Bijoy Kumar Saha) was conducting business in that shop at the. time when it was checked by P.W. 1, was not based on any evidence on record and the said finding was an incorrect and illegal finding. There is no documentary evidence on record to prove as who was the owner of the shop. Petitioner No. 1 has not denied his ownership of that shop, and the finding of the trial court that he was the owner of the shop is justified. The finding of that court that petitioner No. 2 was then conducting the business of the shop at the relevant time is not based on any convincing evidence. When verification of the stock in the shoo was made by P. Ws. 1 to 3, petitioner No. 2 was no doubt sitting in the shop, and a copy of the verification list was handed over to him by P. W. 1. None of the three prosecution witnesses has stated as to in what particular manner petitioner No. 2 was actually transacting business in that shop. P. W. 2 has admitted that there was no outsider in the shop when they inspected the shop. P. W. 3 could not say if any tyres or tubes in that shop were sold on that very day. The above facts indicate that no business was transacted in that shop at least at or about the time of the inspection by P, Ws. 1 to 3. In the prosecution report it is stated that at the time of verification petitioner No. 1, the owner of the shop, was absent and petitioner No. 2 was managing the business. Nothing has been stated therein as to how and in what manner petitioner No. 2 was managing the shop at the relevant time. There is nothing on record to show that petitioner No. 2 in any manner was transacting any business in that shop at the relevant time. Petitioner No, 2 in his statement in the trial court has stated that he was a student by occupation and that he had no concern with the shop in question. From the reports submitted by the District Probation Officer it appears that this petitioner is a student and has appeared for the B.A. (Hons.) Examination, 1978.
On a perusal of the evidence on record I am satisfied that the prosecution has utterly failed to prove that petitioner No. 2 in any way was transacting any business in the shop in question at the relevant time. His sitting in the shop would not amount to transacting business of that shop.
Clause 3 of the Order runs as follows:
3. Display of list Every dealer of essential commodities shall display prominently in the shops or show rooms 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.
Clause 2 (a) of that Order is as follows:
2 (a) 'Dealer' means any person carrying on business of selling any essential commodity, and includes a producer, importer, or retailer.' As petitioner No. 2 was not the owner of the shop and it is not established that he was dealing in any essential articles in any manner at the relevant time, his conviction under Section 7 of the Act lead with clause 3 of the Order cannot be maintained.
6. Petitioner No. 1 (Madhusudan Saha) has not disowned his ownership of the shop. He was absent from the shop at the time when P. Ws. 1 Jo U came to his shop. According to him, the stock position of the essential commodities had been displayed as required under the law when P. Ws. l to 3 inspected that shop.
On going through the evidence and materials on record I am satisfied that he was the owner of the shop in question and that the concurrent finding of both the courts below that the stock position of the essential commodities in that shop had not been displayed as required under clause 3 of the Order is well founded. Mr. Dhal's earnest efforts to unsettle that finding have proved futile. On the above findings merely because petitioner No. 1 was absent from the shop when it was inspected by P. Ws. 1 to 3 he cannot be absolved of his responsibilities of displaying the stock position in the shop as required under the law. I am, therefore, satisfied that conviction of petitioner No. 1 in this case is well founded.
7. It is urged by the learned Counsel for the petitioners that it is a fit case where the petitioners, or any one of them who is found guilty of the offence alleged in this case, should be dealt with under Section 3 or 4 of the Probation of Offenders Act, especially because both the petitioners at the relevant time were below the age of 21 years and the offence alleged against them is of a technical nature and no previous conviction has been proved against them.
Petitioner No, 2 for reasons stated above has been acquitted of the offence alleged against him and, therefore, the application of the provisions of the Probation of Offenders Act to him in this case does not arise.
In the prosecution report, the age of the petitioner No. 1 (Madhusudan Saha) is shown at about 21 years. His age recorded in his statement in the trial court is about 20 years. The trial court in paragraph 10 of its judgment has also categorically stated that both the accused persons then were below 21 years of age and that 'normally such persons should be released on probation.
On the above facts a report from the District Probation Officer of the concerned area was called for relating to the character, conduct and physical and mental conditions of the accused persons in this case. The Probation Officer, in his report dated 21-7-78, states that petitioner No. 1 is a sober and well behaved young man, and he does not show any criminal propensity. It is also reported that he comes of a well-to-do business house in the town which owns substantial property. This petitioner lives with his parents and brothers and sisters who all are well-to-do business people. On the whole he is well spoken of by the Probation Officer in his report.
In the case reported in : AIR1963SC1088 (Ramji Missar v. State of Bihar), it has been observed that the object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime.
The offence established against the petitioners is no doubt of a technical nature, but offences of this nature were and are rampant all throughout the country much to the harassment, annoyance and suffering of the humble consumers. But having regard to the wholesome objects and reasons of the probation law, and considering the age of petitioner No, 1, the report of the Probation Officer and the facts that the shop in question was a small shop containing only some cycle tyres and tubes, and the offence committed is not of heinous type, I am of the opinion that this is a fit case where benefits of the provisions of the Probation of Offenders Act should be given to the petitioner No. 1, Accordingly, while upholding the conviction of petitioner No. 1 under Section 7 of the Act read with clause 3 of the Order, I direct the release of petitioner No. 1 on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, The sentence imposed against the petitioner be not given effect to, and he be released on probation of good conduct on his entering into a bond of Rs, 2000/-(Rupees two thousand) only with one surety of the like amount, to appear and receive the sentence if called upon with in one year from the execution of the said bond, and in the meantime to keep the peace and be of good behaviour and conduct himself lawfully and properly in his business career avoiding repetition of similar offence or commission of any other offences during the said period of one year. The petitioner No. 1, shall remain under the supervision of the District Probation Officer, who shall keep an eye on the petitioner to see whether he is or is not observing or abiding by the above mentioned terms and conditions on which he is to be released on probation.
Before the above bond is executed, the trial court shall explain to petitioner No. 1 the terms and conditions of this order, and shall forthwith furnish copies of this order to (1) petitioner No. l (2) the surety and (3) the concerned Probation Officer. On the failure of petitioner No. 1 to furnish the bond on the specific terms as ordered above the trial court shall impose afresh a proper sentence on him for his aforesaid conviction, and shall execute the same in accordance with law. All necessary steps for the implementation of the above order be taken by the trial court very soon (after) the L. C. R. is received by that court.
Petitioner No. 2, for reasons stated above, is acquitted of the charge against him in this case, and hence his conviction and the sentence imposed thereunder are hereby set aside.
The revision is, therefore, partly allowed.