The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.361 of 1992 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 23rd September, 1992 passed by the learned Special Judge, Sundergarh in G.R. Case No.1421 of 1991 (T.R. No.9 of 1991). 1 Govinda Shaw; and 2. Jainandan Shaw ---- -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.Abhash Mohanty (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 21.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 23rd September, 1992 passed by the learned Special Judge, Sundergarh in G.R. Case No.1421 of 1991 (T.R. No.9 of 1991). By the impugned judgment of conviction and order of sentence, the Appellants (accused persons) having been convicted CRA No.361 of 1992 Page 1 of 6 for commission of the offence under section 7 of the Essential Commodities Act, 1955 (for short, ‘the E.C. Act). Accordingly, each of them has been sentenced to undergo rigorous imprisonment for one (1) year and pay fine of Rs.5,000/- (Rupees Fine Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the said offence. 2. Prosecution Case:- One Basanti Jena (since acquitted) was the retail dealer of Kerosene at Tilkanagar ‘C’ Block under Bandomunda Police Station. On 13.09.1991 and on 13.09.1991, she was supplied with the Kerosene oil from the depot for their onward sale to the consumers. It is alleged that around 10.30 p.m., these accused persons were found by the villagers to be carrying Kerosene oil in a rickshaw and on being asked, they confessed to have purchased the same from the retail shop owner, Basanti Jena. The police was informed on the next day by one of the villagers and case being registered, on being apprised of the above facts in writing by the villagers, the investigation commenced. Finally, on completion of the investigation, these accused the persons as well as that Basanti Jena (since acquitted) faced the Trial. The Trial Court, having acquitted that Basanti Jena, has found these accused persons guilty for commission of the offence Page 2 of 6 CRLA No.361 of 1992 under section 7 of the E.C. Act for being in possession of 80 liters of Kerosene oil without any authority as required under law. 3. Mr.Abhash Mohanty, learned counsel for the Appellants (accused persons) submitted that the Trial is vitiated for non- compliance of the provision contained in section 251 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) read with section 262 of the Code in its letter and spirit as mandated under law. Inviting the attention of this Court to the order dated 06.05.1992 passed by the learned Special Judge, he stated that the same is not in compliance with the provision contained in section 251 read with section 262 of the Code and, therefore, the accused persons, having been highly prejudiced, the outcome of the Trial based on such order cannot be sustained. 4. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State submitted that the order when is read as a whole would show substantial compliance of the provision contained in section 251 read with section 262 of the Code and the Court should refrain from taking a hyper technical approach in arriving at the conclusion as regards the compliance of the provision contained in section 251 of the Code. 5. Keeping in view the submissions made; I have carefully read the order dated 06.05.1992 which has been passed by the Page 3 of 6 CRLA No.361 of 1992 Trial Court as in adherence to the provisions of Section 251 & 262 of the Code. 6. As provided in Clause-f of Sub-section 1 of section 12-AA of E.C. Act, all the offences under the Act are to be tried in a summary way and the provisions contained in section 262 to 265 (both inclusive) of the Code shall as far as may be, apply to such trial, when there shall not be the necessity to frame charge. The provision contained in Sub-section 1 of Section 262 of the Code says that the procedures for trial of the summons-case shall be followed. Therefore, the legal need stands for compliance of the provision of section 251 of the Code for commencement of the Trial. It reads that the accused when appears or is brought before the Magistrate, the particulars of the offence of which, the accused are accused of required to be stated to him/there and then he/they is/are required to be asked whether he/they pleads/plead guilty or has/have any defence to make. In the backdrop of the above, the order dated 06.05.1992, being gone through, it is found that the accused to have been simply noted that the particulars of the offences under section 7 of the E.C. Act are read over and explained to the accused persons, who pleaded not guilty. Section 7 of the E.C. Act provides the penalty for contravention of any order made under section 3 of the E.C. Act. Page 4 of 6 CRLA No.361 of 1992 In the case at hand, the contravention, as alleged, to be in relation to the Orissa Kerosene Control Order, 1962, which provides in Clause-3 that no person other than a wholesale dealer and a sub- wholesale dealer under parallel marketing system shall carry on business as a wholesale dealer or a sub-wholesale dealer within the State of Orissa except under and in accordance with the terms and conditions of a licence granted in that behalf by the licensing authority. So, as per the prosecution case, these accused persons were in possession of the Kerosene oil without having the required license. The order in question reads as under:- “Hence, particular of offences under section 7 of the E.C. Act read over and explained to the accused Basanti Jena and the representation lawyer to which they pleaded not guilty and claim to be tried.” A bare reading of the aforesaid order would reveal that the provision of section 251 of the Code has not at all been complied with in as much as the relevant clause of the relevant Control Order for whose violation the accused persons are said to have committed the offences under section 7 of the E.C. Act have not neither been mentioned nor even the facts, which constitute such violation are stated therein. In that view of the matter, for non-compliance of the provision of section 251 read with section 262 of the Code, the Page 5 of 6 CRLA No.361 of 1992 prejudice to the accused persons is writ large and thus, the outcome in the Trial wherein the Trial Court has passed the judgment of conviction and order of sentence cannot be sustained as the Trial stands wholly vitiated. 7. For the said reason, in my view the judgment of conviction and order of sentence challenged in this Appeal cannot be sustained. Since in the given case, it is found that the offence, being said to have been committed on 13.09.1991, the trial stood concluded on 23.09.1992 and as by now, there has been lapse of more than 32 years and 6 months. Accordingly, in my considered opinion, it would not serve the interest of justice, after this distance of time to pass an order for retrial in meeting its ends. 8. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 23rd September, 1992 passed by the learned Special Judge, Sundergarh in G.R. Case No.1421 of 1991 (T.R. No.9 of 1991), are hereby set aside. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.361 of 1992 (D. Dash), Judge. Page 6 of 6