CRIMINAL APPEAL 222 OF 1993 on 16 July 1993

IN THE HIGH COURT OF ORISSA, CUTTACK CRA NO. 222 OF 1993

From the judgment of conviction and order of sentence dated 16.07.1993 passed by the learned Special Judge, Koraput-Jeypore in T.R. Case No. 44 of 1990.

……… Siba Prasad :::: Appellant. -:: VERSUS ::- State of Orissa :::: Respondent. For Appellant :::: M/s. M. Mishra, U.C. Patnaik, B Mishra, D.S. Mohanty, D. Sarangi, V. Avtar, Advocates. For Respondent :::: M/s. Mr. P. Ch. Das, Addl. Standing Counsel.

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PRESENT:

THE HON’BLE MR. JUSTICE D.DASH

------------------------------------------------------------------------------------------ Date of Hearing & Judgment 25.07.2019 ------------------------------------------------------------------------------------------ This appeal has been filed challenging the judgment of conviction and order of sentence dated 16.07.1993 passed by the learned Special Judge, Koraput-Jeypore in T.R. Case No. 44 of 1990.

By the said judgment, the appellant (accused) has been convicted for offence under section 7(1)(a)(ii) of the Essential Commodities Act for violation of Clause-3(2) of the Orissa Rice and Paddy Control Order 1965, Clause-3 of the Orissa Baby Food Licensing Order 1966, Clause-7(1) of the Orissa Kerosene Control Order, 1962, Clause-3 of the Orissa Declaration of Stocks and Prices of the Essential Commodities Order 1973 and accordingly he has been sentenced to undergo rigorous imprisonment for a period of 3 months and to pay fine of Rs.500/- in default to undergo rigorous imprisonment for one month.

2. Prosecution case in short is that on 18.05.1990, the Inspector of Supplies, Kotpad along with the Block squad headed by the Additional Tahasildar, raided the business premises of the accused situated in village Chandili. During that visit, they recovered 32 bags of coarse paddy each weighing 80 kgs.; one loose bag of fine paddy weighing 50 kgs.; coarse rice of 6 bags each bag weighing 1 quintal and one loose bag weighing 48 kgs.; 21 tins of milk powder (amul spray) each weighing 500 grams, green peas of 1 quintal & 1 kg. kept in one bag; black gram dal in one bag weighing 90 kgs.; tuhar dal kept in two bags, each weighing 1 quintal; wheat flour kept in 2 bags weighing 90 kgs. and one loose bag weighing 60 kgs. with 7 liters of K. oil in 1 tin, 2 tins of mustard oil each weighing 10.15 kgs. It is stated that since the accused could not produce any license and authority in support of such possession and storage for sale of the essential commodities, those were seized. It is further case of the prosecution that as required under the Orissa Declaration of Stocks and Prices of the Essential Commodities Order 1973, the accused had not placed the board showing the stock in hand and price of all the essential commodities. With the above allegations, prosecution report being submitted, the accused faced trial in the court of learned Special Judge, Koraput-Jeypore.

The plea of the accused is that of complete denial as to the said recovery of seizure of essential commodities from his possession. It is his specific case that he used to run a beetle shop at Chandili which has not been searched. He also denied to have made any statement before the members of the prosecution party during their visit.

3. The trial court on analysis of evidence of two prosecution witnesses i.e. (P.W. 1 & 2) has come to the conclusion that those essential commodities as noted in the seizure list-Ext.1 had been stored by the accused for sale. Therefore, as admittedly he had no license or authority, the trial court has found the guilty for commission of offence under section 7(1)(a)(ii) of the Essential Commodities Act for violation of the Control Orders promulgated by the State in exercise of power conferred under section 3 of the Essential Commodities Act as aforestated.

4. Learned counsel for the appellant submits that the evidence let in by the prosecution is wholly insufficient to record the

finding that those essential commodities seized under seizure list –Ext.1 were at the relevant time in possession and control of this accused so as to say looking to their quantity that the accused being the dealer was engaged in selling those having no authority or license as required under the respective Control Orders. In this connection, he has placed the evidence of P.W.1 and 2. It is also submitted that when the Additional Tahasildar, the head of the squad who was present all through during the inspection till seizure of the essential commodities has not been examined in the case, adverse inference is bound to be drawn and the solitary evidence of P.W.2 ought not to have been accepted without any corroboration. According to him, the prosecution having withheld the examination of best and important witnesses has to share the blame of non-establishment of its case. He, therefore, urges that the judgment of conviction and order of sentence impugned in this appeal are liable to be set aside.

Learned counsel for the State submits that the trial court has rightly accepted the solitary testimony of P.W.2, the Supply Inspector who has absolutely no axe to grind against the accused when no such material has also been placed from the side of the defence that he had any reason to run after him nor it has so emanated during the examination in court. He further submits that as per the version of the P.W.2, the accused had kept all those essential commodities in his business premises, when the inspection was made and that having not been shaken, the trial court did commit no mistake in holding the prosecution to have proved its case beyond reasonable doubt.

5. Keeping in view the rival submissions, let’s first proceed to have a look at the evidence of P.W.2. Before that, it may be stated although the Additional Tahasildar had headed the squad, he has not come to the witness box and therefore, this P.W.2 stands as the star witness for the prosecution. In the absence of that Additional Tahasildar coming to depose, the testimony of P.W.2 thus, needs greater scrutiny.It has been stated by him that business premises of accused at village Chandili has been raided followed by the recovery of essential commodities as mentioned in the seizure list. During cross –examination, he has stated to have no knowledge as to if the accused is the owner of that shop. According to his evidence, the shop had two room; one shop room and other was the godown. P.W. 1 has been examined from the side of the prosecution and has to establish the factum of storage/ recovery and seizure. It is his evidence that the house where the accused was residing belonged to one Sitaram and the accused had taken it on rent. He has further stated that the owner was occupying a portion of the house and the

recovery of essential commodities has been made from the eastern side of the said house, then under the occupation of house owner-Sitaram. P.W. 2 has come forward to say that at the relevant time of their inspection, the accused was engaged in selling of essential commodities. He next says that P.W.1 was the customer and was present at that time in the said shop. The evidence of P.W.1 being gone through, it is seen that he has stated in clear terms that accused had a beetle shop and was engaged in selling Pan, Bidi and Cigarettes. The important document proved from the side of the prosecution is Ext.3 which is the recorded statement of the accused and contains his signature. Perusal of Ext. 3 reveals which of course is admissible in evidence reveals that nothing finds mention therein as to the possession of the essential commodities by the accused or that those were under his control and kept for sale. In that view of the matter, Ext.3 is of absolutely no help to the prosecution in establishing the fact that the accused had stored those essential commodities for sale and those were under his possession and control.

Above being the state of affairs in the evidence, the finding of the trial court that the prosecution has established its case against the accused beyond reasonable doubt for commission of offence under section 7(1)(a)(ii) of the Essential Commodities Act for violation of Clause-3(2) of the Orissa Rice and Paddy Control Order 1965, Clause-3 of the Orissa Baby Food Licensing Order 1966, Clause-7(1) of the Orissa Kerosene Control Order, 1962, Clause-3 of the Orissa Declaration of Stocks and Prices of the Essential Commodities Order 1973 cannot be sustained. Therefore, the judgment of conviction and order of sentence impugned in this appeal are set aside.

6. In the result, the appeal stands allowed.

The bail bonds executed by the accused shall stand discharged.

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D. Dash, J.