P.K. Mohanti, J.
1. In a criminal trial before the Subdivisional Judicial Magistrate of Rairakhol the opposite party Babaji Sahu and one Abatar Singh were convicted, on their own plea of guilty, Under Section 7 of the Essential Commodities Act, 1955 for transporting Q. 8.77. 500 Grams of rice from Sambalpur to Cuttack in contravention of the provisions of Clause 3 of the Orissa Rice (Control on Inter-district Movement) Order, 1973 read with Government of Orissa Notification No. 32228-FG-IC-32/73 (SRO No. 1024/73) dated 24th November, 1973 and were sentenced to pay a fine of Rs. 200/- each or in default to undergo R.I. for 15 days each although in a case of this type substantive sentence of imprisonment is mandatory. Attention of this Court having been drawn to the inadequacy of sentence, the present proceedings were started suo motu and notices were issued to both the accused persons to show cause why the sentences passed on them should not be enhanced. In pursuance of the notice, the opposite party Babaji Sahu has appeared through his Advocate to show cause. As the notice on Abatar Singh could not be served for want of correct address, the proceeding as against him was dropped as per order No. 6 dated 21-4-77.
2. A question has been raised as to whether the High Court in revision Under Section 401 Cr. P. C., has power to enhance the sentence in the absence of an appeal against the inadequacy of sentence Under Section 377 Cr. P. C. The legal position has been made clear by a recent decision of the Supreme Court reported in : 1977CriLJ964 , (Eknath Shankarrao v. State of Maharashtra) wherein their Lordships laid down as follows :
We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant Under Section 397 read with Section 401 Cr. P. C., 1973, inasmuch as the High Court can by itself call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar Under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code.
In another judgment in the case of Nadir Khan v. The State (Delhi Administration) : 1975 UJ (SC) 549 : 1976 Cr LJ 1721, the Supreme Court held as follows :
Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions Under Section 401 read with Section 386(c)(iii) Cr. P. C., are clearly supplemental to those Under Section 377 whereby appeal are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be. There is therefore absolutely no merit in the contention of the learned Counsel that the High Court acted without jurisdiction in exercising the power of revision suo motu, for enhancement of the sentence in this case.
3. Section 7 of the Essential Commodities Act provides, inter alia, that if a person contravenes any order made Under Section 3 of the Act, he shall be punishable in the case of any order made Under Section 3 of the Act except an order made with reference to Clauses (h) and (i) of Sub-section (2) of Section 3 with imprisonment for a term which shall not be less than three months, but which may extend to seven years and shall also be liable to fine : provided that the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.
4. It is not disputed that there has been violation of the provisions of Clause 3 of the Orissa Rice (Control on Inter- district Movement) Order, 1973 issued Under Section 3 of the Essential Commodities Act, 1955. It is also not disputed that in a case of this type a substantive sentence of imprisonment is compulsory. The learned Magistrate committed an illegality in awarding a sentence of fine only.
5. Coming to the question of sentence it appears that the opp-party Babaji Sahoo is a first offender, in view of his young age and the fact that the quantity of rice transported is just above the maximum limit fixed by the Government notification, I think a sentence of imprisonment till the rising of the court besides the fine of Rs. 200/- with the default sentence of R.I. for 15 days, as awarded by the court below, would meet the ends of justice.
6. The result is that the criminal revision is allowed and the opposite party Babaji Sahoo is sentenced to undergo imprisonment till the rising of the court in addition to the sentence of fine of Rs. 200/- with the default sentence of R.I. for 15 days, as awarded by the trial court.