The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.A. No. 289 of 1994 Babaji Charan Rout & another Appellants Mrs. S. Modi, Advocate …. -versus- State of Odisha …. Respondent Mr. Shashanka Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 12.02.2024 20.
Facts
1. Heard learned counsel for the Parties. 2. This Appeal is directed against the judgment and order dated 09.08.1994 passed by the learned Special Judge, Jajpur in 2(a)CC Case No.2/4 of 1993 wherein both the Appellants namely Babaji Charan Rout and Rajendra Kumar Jajodia faced trial for having committed violation of the condition-5 and 8 of the License granted under the Orissa Kerosine Control Order and Clause-11 of the Orissa Control Order punishable U/s. 7 and 9 of the Essential Commodities Act, and found guilty in the offence U/s. 7 of Essential Commodities Act. They having been convicted there under sentenced to undergo R.I. for three months. The said two persons namely Babaji Charan Rout and Rajendra Kumar Jajodia
Legal Reasoning
are therefore, before this Court in Appeal. Page 1 of 6 // 2 // 3. The prosecution case as unfurled before the trial court in brief is that the accused Rajendra Kumar Jajodia is the proprietor of the firm namely M/s. Bhagabati Prasad Rajendra Kumar at Jajpur road whereas the accused Babaji Charan Rout is the agent of the said firm as wholesaler in Kerosene at Jajpur Road. The specific allegations of the prosecution is that in the month of January 1993, the Appellants have sent returns that 4000 liters of Kerosene was supplied to Manoranjan Satapahty, Sub-wholesaler, Kaliapani on 30.01.1993 but according to the return submitted by the sub- wholesaler Kaliapani, Manoranjan Satapahty and the Marketing Inspector, Sukinda Block no kerosene was supplied to them in the month of January, 1993. Therefore, they held to have submitted false return. The P.W. 2 namely Dhaneswar Nayak (Asst. Civil Supply Officer) seized the sales and stock register of the wholesaler, the return filed by the wholesaler, sub-wholesaler and the marketing inspector and other documents and on the basis of a report FIR was registered. 4. The plea of the defense is one of complete denial and false implication 5. To substantiate its case while the prosecution examined three witnesses, the defense examined two witnesses in support of its case. The three witnesses examined by the prosecution are namely Ranjit Kumar Prusty, the Supply Supervisor (P.W.1), Dhaneswar Nayak, the Asst. Civil Supply Officer, Jajpur (P.W.2) and Sananda Prasad Sahu, A.C.S.O., Hindol (P.W.3). The two witnesses examined on behalf of the defence are Manoranjan Satapathy Page 2 of 6 // 3 // working as Sub-wholesaler of Kerosene at Kaliapani (D.W.1) and Shyam Singh Tanker driver (D.W.2). 6. Besides the oral evidence, the prosecution proved documentary evidence vide Exhibits.1 to 11/1. No documentary evidence, however, has been proved from the side of defence. 7. The learned trial court having believed the evidence brought through the witnesses both oral and documentary found the prosecution to have proved the case beyond all reasonable doubt holding the Appellant guilty of the offence charged. 8. The learned counsel for the Appellant submitted that the offences have not been made out against them as there is no violation of the terms of the license and the learned trial court ought to have acquitted the Appellants. She, however, submitted that the Appellants be considered by extending the reformative provision under the Probation of Offenders Act. According to the learned counsel the matter is of the year 1994 and almost thirty years have passed in the meantime. They have no criminal antecedents to their credit and are first offenders. She also submitted that the incident is nothing but the outcome of miscommunication as reveals from the defence evidence. 9. The learned counsel for State on the other hand supported the impugned judgment passed by the learned trial court and submitted that the documents are clear that the supplies have been received 0n 02.02.93 but the same has not been distributed though return was submitted contradictory to the one by the sub-wholesaler attracting the criminal liability for having made a false statement which Page 3 of 6 // 4 // cannot be substituted by a oral evidence and the findings recorded by the learned trial court is, therefore, legal and justified. 10. Upon perusal of the impugned judgment, as well as the evidence, it is indeed correct to accept the evidence brought through the prosecution witnesses supported by the documents proved under ext.1 to 11/1 and 2 to be sufficient to fasten the Appellants in the offence charged. The documents proved being not disputed cannot be substituted by oral evidence. 11. This Court, therefore, concurred with the findings of the learned trial Court. While dealing with the question as to whether the offence being under a special legislation could be brought within the purview of the benevolent legislation of Probation of Offenders Act this Court is satisfied to hold as has been set at rest by the Apex Court in the matter of Lakhvir Singh Etc; vrs. The state of Punjab & Anr. Passed in Criminal Appeal no.47-48 of 2021 (arising out of SLP(Crl) Nos. 6283-6284/2020) reiterated in the matter of Tarak Nath Keshari vrs. State of West Bengal in Criminal Appeal No.1444 of 2023(arising out of SLP (Crl) D No.28476 of 2018) dated 12th February 2024 wherein the Court held as follows. “……However, the fact remains that the offence in the case in hand was committed on 20.08.1985 and in terms of the Essential Commodities (Special Provisions) Amendment act, 1981, the provisio was not in force on that date” also read-Supreme Court grants interim protection to Halal India Pvt. Ltd from coercive action based on UP Govt’s ban on Halal Products. The Court did not find that any case was made out for interference in the concurrent findings of the facts recoded by all the courts below. It was found that stock of mustard oil and vegetable oil found at the Page 4 of 6 // 5 // shop of the appellant was more than the permissible limit, hence, this was violative of para 3(1) of the West Bengal Pulses, edible Oil (dealers Licencing) Order,1978. However, still we find that a case is made out for grant of benefit of Probation to the appellant for the reason that the offence was committed more than 37 years back and it was not pointed out at the time of hearing that the appellant was involved in any other offence” said the Court. The Court further noted that the appellant remained on bail and while entertaining his appeal, the Apex Court had even granted him exemption from surrendering. Hence, the Court directed that the appellant be released on Probation under Section 4 of the Probation of Offenders Act,1958. 12. In the case in hand having regard to the manner of sentence awarded, since the incident took place about thirty years back and the Appellants have all along being on bail, it is worth to consider the prayer of the learned Counsel for the Appellants to extend the provision of benevolent legislation. 13. Accordingly, this Court by exercising powers conferred under Section 4 of the Probation of Offenders Act, 1958 feels it appropriate to modify the sentence imposed by the learned trial court to the extent that both the Appellants, who are already on bail granted by this Court shall be released under section 4 of the Probation of Offenders Act, 1958 for a period of two years on their executing bond of Rs. 5000/- thousand each with two securities each for the like amount before the learned trial court/ court in seisin to appear and receive sentence when called upon during such period of probation and in the meantime they shall keep peace and be of good behavior. Page 5 of 6 // 6 //
Decision
14. The Appeal stands disposed of with the above term. Judge (Chittaranjan Dash) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 28-Feb-2024 18:00:01 Page 6 of 6