Judgment :- 1. The appellant was the third accused in the trial court. He has been convicted and sentenced for The offence under S.7(1)(a)(ii) of The Essential Commodities Act, 1955 (for short'The Act') read with Clause.5(8) and 50 of The Kerala Rationing Order, 1966 (for short'The Order'). 2. He was prosecuted along with two other persons (who were Al and A2 in the trial court) for contravention of Clause.5 and 44 of the Order, which is also punishable under the same section of the Act. The trial court acquitted those two accused, but found that the appellant had contravened Clause.5(8) and 50 of the Order. Hence the learned judge, by virtue of the powers conferred by S.255(3) of the Code of Criminal Procedure (for short 'the Code') convicted the appellant for the said offence under the Act read with Clause.5(8) and 50 of the Order and sentenced him as aforesaid. 3. The prosecution case, in short, is the following: The Retail Ration shop (A.R.D. No. 2 at Maliakkara in Aranmula Village) was in the charge of the appellant, although its licence was in the name of one Gopala Pillai. On 25-9-1983 the appellant sold a quantity of 370 Kgs of ration rice to A2 and the latter removed the said stock from the ration shop in an auto riksha driven by Al. The Sub-Inspector of Chengannur intercepted the vehicle, and after inspection be arrested Al and A2 for transporting ration rice without permit. The auto riksha and the rice were seized as per Ext.P1 search list. The Sub Inspector registered a crime case against those two accused under S.41(1) and 102 of the Code. He inspected the ration shop and prepared Ext.P2 mahazar. He kept the shop closed. Next day P.W.6 (District Supply Officer) opened the shop room with the key obtained from the police. On verification, shortage of stock was detected by P.W.6. After completing investigation, the Sub-Inspector of Police laid a final report against the three accused for the offence under S.7(1)(a)(ii) of the Act read with Clause.5A and 44 of the Order. 4. A summary trial was conducted and at the end of the trial the learned judge found that the offence mentioned in the final report was not made out. After completing investigation, the Sub-Inspector of Police laid a final report against the three accused for the offence under S.7(1)(a)(ii) of the Act read with Clause.5A and 44 of the Order. 4. A summary trial was conducted and at the end of the trial the learned judge found that the offence mentioned in the final report was not made out. But he found that the appellant bad contravened Clause.50 of the Order inasmuch as he has not maintained regular and accurate daily accounts of each rationed article obtained by him. The trial judge also found that the appellant had contravened Clause.45(8) of the Order inasmuch as there was. shortage of rice, wheat, sugar and kerosene in the ration shop when the D.S.O. inspected the shop. The appellant was held to be the authorised retail distributor by virtue of Clause.2(3) of the Order which defines "authorised retail distributor" as including a person in charge of a ration shop. 5. A conviction for contravention of Clause.45(8) of the Order is legally erroneous, because the said sub-clause only empowers the District Collector, or any officer of the Civil Supplies Department to take action against the authorised retail distributor who contravenes any of the provisions of the Order. Therefore no authorised retail distributor can possibly contravene Clause.45(8). Hence the conviction for contravention of Clause.45(8) of the Order is impermissible under law. 6. The main contention of the learned counsel for the appellant was that serious prejudice has been caused to the appellant as he was convicted for an offence which he was not called upon to answer. A second contention raised was that the account books and bill book were brought to the shop later to concoct a case against him. 7. I shall first consider the question whether trial judge could have convicted the appellant for a different offence when he was called upon to answer the offence of contravention of Clause.5A and 44 of the Order. 8. Chap.20 of the Code contains provisions for summary trials. S.262 is in the said Chapter which provides that in trials under the said Chapter, the procedure specified in the Code for the trial of summons-case shall be followed. Chap.20 deals with the trial of summons-cases and S.255 is in the said Chapter. Sub-section (3) of the said Section reads thus: "A magistrate may. S.262 is in the said Chapter which provides that in trials under the said Chapter, the procedure specified in the Code for the trial of summons-case shall be followed. Chap.20 deals with the trial of summons-cases and S.255 is in the said Chapter. Sub-section (3) of the said Section reads thus: "A magistrate may. under S.252 or S.255, convict the accused of any offence triable under this Chapter which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby". The language used in this sub-section shows that power is conferred on the trial court to convict the accused of any other offence, even if that offence has not been mentioned in the complaint or summons. But the power conferred is subject to two conditions. (1) A different offence must appear to have been committed from the facts admitted or proved. (2) The court must be satisfied that the accused would not be prejudiced by such conviction. 9. S.255(3) of the Code corresponds to S.246 of the Code of 1898. The only difference between the two corresponding provisions is the addition of the words "if the Magistrate is satisfied that the accused would not be prejudiced thereby". The said addition is indicative of the concern of the legislature that the powers conferred by the provision may cause prejudice to the accused unless necessary safeguard is provided. Now the court cannot convict the accused for a different offence if that accused will be prejudiced thereby. 10. What is meant by "prejudice" to the accused? A conviction for a different offence is net sufficient to amount to prejudice, for, the power, conferred by the sub-section itself is to enable the court to convict the accused of a different offence albeit non-mention of that offence in the complaint or summons. Prejudice arises when the accused is to suffer a conviction without getting an opportunity to defend himself in respect of the offence found or proved against him. An accused may adopt his own strategy in his defence against a particular accusation. Can that strategy be used against him as the basis for convicting for a different offence? Prejudice arises when the accused is to suffer a conviction without getting an opportunity to defend himself in respect of the offence found or proved against him. An accused may adopt his own strategy in his defence against a particular accusation. Can that strategy be used against him as the basis for convicting for a different offence? If the answer is in the affirmative, then that accused must get reasonable notice that he is likely to be convicted of the other offence and he must also get a reasonable opportunity to defend himself against it. Fairness in the trial is one of the basic features of the administration of criminal justice in this country. Fairness includes the need to comply with principles of natural justice. Every accused should have a reasonable opportunity to defend himself against any possible conviction. A conviction without affording such a reasonable opportunity to the accused will amount to serious prejudice being caused to him. 11. In this case, the appellant was never told that he has to answer for an offence of contravention of Clause.50 of the Order. In fact he devised his strategy in such a way as to meet the accusation made against him by the prosecution. He would have stated that he was solely responsible for the affairs of the ration shop, as he knew that the prosecution has not proved that the rice seized from the auto riksha belonged to his ration shop. In this context it is important to note that the licensee of the shop (Gopala Pillai) was not examined by the prosecution, though he was cited as a witness in the list of the prosecution. It is in evidence that the said Gopala Pillai was present when PW6 (D.S.O.) opened the ration shop on 26-9-1983. The ingenuity of the prosecution in snugging the licensee of the shop in a vantage position does not merit approbation. The only evidence in this case to show that the appellant was conducting the affairs of the shop is the testimony of PW2, a witness treated as hostile by the prosecution. The appellant was questioned by the trial judge in the examination under S.313 of the Code with reference to that item of evidence and then he answered that the shop was under his sole charge or responsibility. The aforesaid answer of the appellant has been used against him. The appellant was questioned by the trial judge in the examination under S.313 of the Code with reference to that item of evidence and then he answered that the shop was under his sole charge or responsibility. The aforesaid answer of the appellant has been used against him. In fact that answer became the sole basis for a finding that be was the authorised retail distributor. A conviction, on the strength of such a statement which the appellant made to meet an entirely different offence pitted against him, would have come to him as a belt from the blue. Had he any inkling that he would be roped in for contravention of Clause.50 of the Order, it is extremely doubtful whether the appellant would have stated so in the examination S.313 of the Code. 12. My conclusion is that prejudice has been caused to the appellant in finding him guilty of the offence of contravention of a different clause of the Order, as he never had any opportunity to defend himself against such an accusation. Hence it is not necessary to consider the second contention raised by the counsel. I allow this appeal and set aside the conviction and sentence passed against him. He is acquitted and is directed to be set at liberty. His bail bond will stand discharged.