R.C. Patnaik, J.
1. The petitioner was prosecuted Under Section 7 of the Essential Commodities Act for contravention of Clause (3) of the Orissa Wheat and Wheat Products Control Order, 1973 and Clause (3) of the Orissa Declaration of Stocks and Prices of the Essential Commodities Order, 1973.
2. The allegations to support the charge on the first count were that he was in possession of 10 bags of Atta, each bag weighing 90 K. Gs. and one bag of Atta weighing 78 K. Gs. 59 bags of flour and 80 K. Gs. of Suji and allegations in respect of the second charge were that the petitioner was in possession of 4 tins of mustard oil, each tin weighing 16.8 K. Gs. and 85 K. Gs. of sugar in his shop; but he, however, did not display the position of stock etc. on the board which he was required to maintain under the Orissa Order referred to above. The learned Magistrate acquitted him of the first charge; but convicted him for violation of the Orissa Order for his failure to display the stock position and the rates thereof as stated above and convicted him therefor Under Section 7 of the Essential Commodities Act and sentenced him to rigorous imprisonment for three months and to pay a fine of Rs. 100/-, in default whereof, directed the petitioner to undergo rigorous imprisonment for 15 days. The petitioner failed in his search for acquittal before the lower appellate Court and hence this revision.
3. Mr. P. K. Misra appearing for the petitioner submits that 10th August, 1975 on which the prosecution party is said to have visited the shop of the petitioner was a Sunday. The shops and other commercial establishments in the area in which the petitioner carries on his business remain closed on Sundays. The witnesses for the prosecution were specifically asked on this question; but they did not give any positive answer, rather evaded. The petitioner, therefore, examined one witness as D. W. I and proved the resolution of the Merchants' Association, which has been marked as Ext, A/1.
10-8-75 fell on a Sunday. D. W. 1 has categorically stated that in the area of Chhatia shops and other commercial establishments remain closed on Sundays and to that effect resolution has been, passed by the Merchants' Association of / the area. Ext. A refers to the same. The learned Counsel submits that 10-8-75 being a holiday, the petitioner was not obliged in law to state or display the stock position on the board nor was he enjoined by law to display any other particulars thereon. He has drawn my attention to the decision of this Court in the case of N. Karpeja v. State of Orissa (Criminal Revision No. 91 of 1977:1978) 45 Cut LT (S. N.) 19). this Court observed:. Admittedly 4th January, 1976, was a Sunday and it may be that the petitioner had not come to the shop in the morning and, therefore, had not found it possible to change the date.
The Rajasthan High Court in the case of Dev Chand v. State, of Rajasthan (1979 Raj Cri C 347) held :
A dealer is not required to display daily lists of prices etc. on a day he observed as a weekly holiday, Therefore, he does not commit the contravention of Clause 3 of the Order if he does not display the list on that day.
In the case of Nathmal v. State of Rajasthan : 1975CriLJ1871 while dealing with an application for habeas corpus questioning the detention of Nathmal, the Supreme Court observed (para 7 :.the shop was not open on the day under consideration, the petitioners could not be expected to display the prices or stock list on that day.
Further, reference has been made to Gurubachan Singh v. State of Bihar (1976 BLJR 120). In that case 432 pieces, of Sunlight soap were recovered in a raid of the godown. There was no board to indicate the prices and stock of that shop. The petitioner therein was prosecuted for contravention of Clauses (3) and (4) of the Bihar Essential Commodities other than Foodgrains Prices and Stocks (Display and Control) Order, 1967. Clause (4) of the Order especially required every dealer to display at a conspicuous part of the premises where he carried on his business the price list and stock position of the scheduled commodities held in stock by him. The raid was made during night. The learned Judge observed:.no business was being transacted at that particular hour. In the circumstances, non-display of price list and stock position at that time cannot be said to be in violation of the provisions of Clause 5 of the Control Order....The purpose of the provisions being to convey information to purchasers/members of public about availability of commodities and their prices and display acting also as a deterrent on the shopkeeper, when, therefore, a shop remains closed, there can be no relevance or justification for display of the price list and the stock position.
The learned Counsel for the petitioner further submits that in fact the prosecution party required him to take them to his house as they did not find anything incriminating in the shop and in that behalf relies on the evidence of P.W. 4 who deposed:The accused himself pointed out the house and led us to that home and showed the articles...
4. It is unnecessary to decide whether the articles were stored in the shop or in the house in view of the conclusion reached that it was not imperative to maintain the stock list or display the price list on a holiday when the shop remains closed.
In the result, I accept the revision. The judgments of the courts below are set aside and the petitioner is acquitted.