B.K. Behera, J.
1. A dealer in Kerosene oil under the Kerosene Control Order at Rairakhol having the shop 'Sahu Stores', the petitioner, it was alleged, had not declared the correct stock position of Kerosene oil in the price and stock declaration board required to be maintained under Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 (for short, 'the Order of 1973') and had not displayed in a special board the varieties of Kerosene and their prices as required under Clause 4 of the Kerosene (Fixation of Ceiling Prices) Order, 1970 (for short, the Order of 1970') on Dec. 28, 1979, which was detected by the Inspector of Vigilance (P.W.5) in the presence of the Inspector of Commercial Taxes, Vigilance (P.W.4) and another person (P.W.3) at 1.00 p.m. on the day. The petitioner had denied the charges.
2. Of the five witnesses examined for the prosecution, P.Ws.1 and 2 had not said anything about the non-maintenance of the stock board and the special board as required under the two Orders. P.W.3 had not supported the case of the prosecution and was put leading questions by it under Section 154 of the Evidence Act. Relying on the evidence of P.Ws.4 and 5, the trial court held that the provisions of both the Orders had been contravened. On appeal, the learned Additional Sessions Judge held that the petitioner could not be held guilty for violation of Clause 3 of the Order of 1973. He, however, agreed with the conclusion of the trial court that Clause 4 of the Order of 1970 had been contravened. The order of conviction passed against the petitioner under Section 7 of the Essential Commodities Act for contravention of Clause 4 of the Order of 1970 was upheld and the sentences passed against the petitioner to undergo rigorous imprisonment for a period of fifteen days and to pay a fine of Rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of fifteen days imposed by the trial court were maintained by the appellate court.
3. Mr. Sutar, appearing for the petitioner, has submitted that on the evidence on record, the order of conviction maintained by the appellate court cannot be sustained in law. Mr. Mohanty, the learned Additional Standing Counsel, has contended that the evidence did show that the petitioner had not maintained a special board as required under Clause 4 of the Order of 1970.
4. The evidence of P.W.5 with regard to non-display of the stock and price of Kerosene in a special board had not been supported by any other evidence. The evidence of P. W.4 in this regard was that the petitioner had not 'prepared' a separate board for exhibition of stock and price of Kerosene in his shop, he had not, in terms, stated that the petitioner had not displayed the stock position and price of Kerosene he had in a special board.
5. The learned Counsel for the petitioner has taken me through the statement of the petitioner recorded under Section 313 of the Cr. P. C. and has contended that the attention of the petitioner had not been drawn to the evidence relating to the non-display in a special board the stock of kerosene and its price and this had caused serious prejudice to him. A question had been put to the petitioner that in the declaration board, only a balance of 62 litres of kerosene had been shown which had reference to the allegation regarding violation of Clause 3 of the Order of 1973, besides some other questions regarding the stock. No specific-question had been asked and the petitioner had not been put to notice regarding the violation of Clause 4 of the Order of 1970 in that he had not displayed the stock position and price of kerosene in a special board.
6. It is fundamental that the attention of the accused should be drawn to every inculpatory material in order to enable him to explain it. This is the basic fairness of a criminal trial and failure in this regard may gravely imperil the validity of the trial if there has been consequential miscarriage of justice which may be gathered and assumed from the facts and the circumstances of the case.
7. In the case of Sharad Birdhichand Sarda v. State of Maharashtra : 1984CriLJ1738 , the Supreme Court has examined this question with reference to the principles laid down in : AIR1953SC468 Hate Singh v. State of Madhya Bharat : 1976CriLJ492 Shamu Balu Chaugule v. State of Maharashtra and : 1979CriLJ1137 Harijan Megha Jesha v. State of Gujarat and has held that the circumstances which were not put to the accused in his examination under Section 313 of the Cr. P. C. had to be completely excluded from consideration.
8. In the circumstances of the case, the fact that the petitioner had not been given any opportunity to explain about the alleged contravention of Clause 4 of the Order of 1970 by not displaying the stock position of kerosene and the price thereof in a special board had caused serious prejudice to him and, therefore, the evidence in this regard could not be used against the petitioner.
9. The order of conviction recorded against the petitioner by the trial court and maintained by the appellate court must be held to be unfounded and unreasonable on facts and illegal and unsustainable in law. The order of conviction is, therefore, to be set aside.
10. 1 would allow the revision and set aside the order of conviction and sentences passed against the petitioner.