K.P. Mohapatra, J.
1. This appeal is directed against the order passed by the learned Additional Sessions Judge, Berhampur, setting aside the order of conviction and sentence of the respondent under Sec. 7(1)(a)(i) of the Essential Commodities Act (hereinafter referred to as 'the Act').
2. The brief facts of the case are narrated below. The respondent was a dealer of food grains and other articles in village Gunthapada. The front room of his residential house was used as the shop room. Along with the members of his family he lived in the residential portion of the house. It is stated that he had also a godown at some other place. On 25. 8. 1975 at about 10 a. m. the Inspector of Vigilance (P. W. 6 ) along with the Inspector of Commercial Taxes (P. W. 1) and some other officers searched the shop, residence and the godown of the respondent and seize! the following articles by seizure list, Ext, 1 :-
1. Two K. Gs. of Arua rice.
2. Ten K. Gs. of Atta.
3. Ten dozens of white paper.
1. Twenty bags of Arua rice.
2. Four bags and 8 K. Gs. of Atts.
3. 170 K. Gs. of Suji.
4. Eight tins of ground-nut oil,
5. Two bicycle tyres.
1. Four bags of Atua rice.
2. Fourteen bags of Atta (each containing 90 K.Gs.)
3. Ten reams of white paper.
4. Twenty bicycle tyres.
Rice, Atta and Suji being essential commodities, the respondent should have a licence to carry on business in those articles. But he had not obtained a licence from the competent authority. Besides, he did not correctly disclose the stock and the price of the essential commodities an the board in the shop. Therefore, P. W. 6 submitted a charge-sheet against the respondent.
3, Charges were framed against the respondent under Sec. 7 of the E. C. Act for contravention of:
(1) Clause 3 of the Orissa Foodgrains Dealers' Licensing Order, 1964 foe possession of 24 bags and 2 K. Gs. of Arua rice without a valid licence.
(2) Clause 3 of the Orissa Wheat and Wheat Products Control Order, 1973 for possession of 18 bags and 8 K. Gs. of Atta and 272 K. Gs. of Suji without a valid licence ; and
(3) Clause 3 of the Orissa Declaration and Prices Control Order, 1963 for failure to notify the stock position of 4 tins of ground-nut oil, 22 bicycle tyres and 380 dozens of white paper.
4. The learned Judicial Magistrate in his judgment did not at all make any reference to the charges relating to the contravention of Clause 3 of the Orissa Foodgrains Dealer' Licensing Order, 1964 and Clause 3 of the Orissa Wheat and Wheat Products Control Order, 1973. The judgment is silent as to whether the respondent contravened the provisions of the aforesaid Orders. When specific charges were framed to the effect that the respondent contravened the provisions of Clause 3 of the Orissa Food grains Dealers' Licensing Order, 1964 and Clause 3 of the Wheat and Wheat Products Control Order, 1973 and no order of conviction was recorded, it must be deemed according to law that the respondent was acquitted of those charges.
5. Contravention of Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 by the respondent was the only point considered by the learned Judicial Magistrate. But no charge was framed against the respondent under the aforesaid provision. On the other hand, charge was framed for contravention of Clause 3 of the Orissa Declaration and Prices Control Order, 1963. There is no order passed under Sec. 3 of the Act named and styled as the 'Orissa Declaration and Prices Control Order, 1963' While framing the charge a serious error seems to have been committed and the provisions of Sec. 211 of the Code of Criminal Procedure (referred to as the 'Code') was not kept in view. Correct charge should have been framed for contravention of Clause 3 of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973. As the charge was not legally and correctly framed against the respondent and the correct charge was not explained to him, it is for consideration if on account of serious prejudice that might have caused to him for his defence, the order of acquittal should be interfered with in exercise of powers conferred under Sec. 378 of the Code.
6. When charge is framed against an accused incorrectly and not in accordance with law or a charge is framed against him for contravention of a particular provisions of a non-existent law, in ordinary course, it is to be assumed that the accused has been greatly prejudiced for his defence. In such cases the trial is vitiated. The exception to the above is provided in Sec. 215 of the Code according to which no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. This provision, however, will not be applicable to a case in which charge has been framed for contravention of a particular provision of a law which is not at all in existence. If charge is framed against the accused under a non-existent Jaw, it is as good as not framing a charge at all, in which case, the accused does not have to meet a charge. This being the position, there is no proper trial of the accused of a charge in accordance with the provisions of the Code or other laws if any. Such a trial is no trial at all according to the established law. It is thoroughly vitiated. The accused is not only greatly prejudiced and his liberty seriously jeopardised, but also, there is failure of justice. Sec. 215 of the Code cannot, in my view, save such a situation.
7. It is also necessary to view the matter from the angle of the provisions of Sec. 464 of the Code which provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was .framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact occasioned. In A. I. R. 1955 S. C. 274, (Nanak Chand v. State of Punjab), it was held as follows:
'......In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under Sec. 302 I. P. C. was in fact framed, Sec. 232, Cr. P. C. (a part of Sec. 232 of the old Code corresponds to a part of Sec. 464 of the new Code) permits an appellate Court or a Court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit, In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of Sees. 535 and 537 Cr. P. C. (Sees. 535 and 537 of the old Code correspond to Sees. 464 and 465 of the new Code). Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circumstances of the present case, the irregularity is not curable because the appellant was- misled in his defence by the absence of a charge under Sec. 302, I. P. C.'
In A. I. R. 1956 S. C. 116 : Willie ( William ) Slaney v. State of Madhya Pradesh, Aiyar, J. speaking for the Court held :
'There is no reason to think that Sec. 535 of the Code of Criminal Procedure (Sec 535 of the old Cede corresponds to Sec. 464 of the new Code ) is not also to be understood with reference to the same context. There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. In such cases the trial would be illegal without the necessity of a positive finding of prejudice.'
In this case as already referred to above, charge was framed /or contravention of a provision of law which did not exist. So there was absence of a charge and the entire trial of the respondent was vitiated. When the question before the Court is whether in the absence of a charge, the trial of the accused is vitiated from the very beginning with the consequence of causing prejudice to the accused, it would in my view, be quite unsafe and imprudent to interfere with an order of acquittal in exercise of powers conferred under Sec. 378 of the Code.
8. The respondent had to meet a charge for contravention of provisions of non-existent law and undergo the agony of a protracted trial beginning in August, 1975 and ending in Match, 2978. He had also suffered the tribulations of an appeal from March, 1978 until March, 1980. Thereafter, the present appeal by the State was filed on 15. 5. 1980. Thus, practically for a period of ten years-, the respondent has been undergoing the gruelling experience and pain of the sword of Democles hanging over his head; All these happened on account of absence of care, scrutiny and conscious approach to the case. In any event, although the respondent was convicted by the learned trial Magistrate, for different reasons though, he was acquitted by the Court of appeal. The order of acquittal does not warrant interference.
9. For the reasons stated above, the appeal n without any merit and is hereby dismissed.