The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.A. No. 157 of 1995 Asis Kumar Singh …. Appellant Mr. Sougat Dash, Advocate, Amicus Curiae, -versus- State of Odisha …. Respondent Mr. Shashanka Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 16.02.2024 06.
Legal Reasoning
1. Heard learned counsel for the Parties. 2. This Appeal is directed against the judgment and order dated 02.05.1995 passed by the learned Special Judge-Cum-Sessions Judge, Balangir in 2(a)CC Case No.7 of 1992 wherein the Appellant namely Asis Kumar Singh faced trial U/s. 7 of the Essential Commodities Act, 1995 for contravention of caluse-3(1) of the Orissa Rice and Paddy Control Order, 1965, but found guilty in the offence U/s. 7 of Essential Commodities Act, 1955 sentenced to undergo R.I. for six months and to pay a fine of Rs.100/- and in default to undergo R.I for the period of two months. The said person namely Asis Kumar Singh is therefore, before this Court in Appeal. 3. The prosecution case as unfurled before the trial court in brief is
Legal Reasoning
that the P.W.1 namely Sri Nathuram Majhi who was the Asst. Civil Page 1 of 6 // 2 // Supply Officer at Birmaharajpur, while was on enforcement duty on 19.12.1991 at about 8.00P.M., along with the Executive Magistrate namely Sri Syama Sundar Naik (P.W.2) on the P.W.D. road leading to Nakadei village found one loaded Mini truck bearing Regd. No. OIX-2975 was proceeding towards Sambalpur. He detained the said mini truck near village Sindirabahali for checking. On query the driver of the truck namely Asis Kumar Singh (the appellant) stated the truck was loaded with 50 bags of paddy which he purchased from one Satyanarayan Purohit (D.W.1) of Sindirabahali and transporting the same stock to Sambalpur for sale. On demand, the he could not produce any valid license or any such document in support of the purchase and transportation of the paddy. Hence, the Supply Supervisor (P.W.1) seized the paddy. On weighment it was 35 quintals which P.W.1 seized under Ext.1 and kept on the zima of Satyanarayan Purohit (D.W1) of village Sindirabhali. According to the prosecution, since the appellant transported the paddy in contravention of Clause-3(1) of the Orissa Rice and Paddy Control Order, 1965 he is liable U/s. 7 of the Essential Commodities Act and accordingly the FIR was registered. 4. The plea of the defense is one of complete denial and false implication. 4. To substantiate their respective cases both the prosecution as well as the defense has examined two witnesses each. 5. The two witnesses examined by the Prosecution are Nathuram Majhi, the Assistant Civil Supply Officer as P.W.1 and Shyamsundar Naik, the Tahasildar as P.W.2. Similarly, the two defence witnesses examined are namely Satyanarayan Purohit (D.W.1) and Charan Naik (D.W.2). Page 2 of 6 // 3 // 6. The prosecution besides the oral evidence proved documentary evidence vide Exhibits.1 to 4/2 and defense proved the documents vide Ext. A, the Draft of R.O.R stands in the name of D.W.1, S. Purohit. 7. The learned trial court having found the evidence to the effect that the 50 bags of paddy which came to be 35 quintals seized by P.W.1 under Ext.1 from the Mini truck in possession of the appellant without any license being beyond the permissible limit deemed a dealer and was transported for sale in contravention of Clause-3(1) of the Orissa Rice and Paddy Control Order, 1965 he is liable U/s. 7 of the Essential Commodities Act which could not otherwise be established by the appellant to be that of paddy belong to D.W.1 found the prosecution to have proved the charge alleged and held the appellant guilty thereof. 8. It is submitted by the learned Amicus curiae that the learned trial court failed to appreciate the evidence in right perspective in as much as the appellant being not dealer the conclusion of the learned court the possession of the paddy by the appellant of the alleged quantity could not have been held as purchased by the appellant beyond the permissible limit. He further submitted that the evidence of the witnesses from the side of the defence to the effect that the paddy was being taken by the witnesses for milling that belong to D.W.1 has not been appreciated and the learned court thereby wrongly held the said findings against the appellant. 9. The learned counsel for the State on the contrary argued that the impugned judgment to be in accordance with the evidence and law and the same legal and justified canvassed for affirmation. Page 3 of 6 // 4 // 10. Perused the entire evidence. While it is well established by the Prosecution that the paddy seized to be that of the appellant who being not the owner transporting it beyond the permissible limit without a licence or permit found not in conformity with the relevant law, the evidence laid from the side of the defence meaning the appellant could not be held to be reliable as the claim of the witnesses as they to be the owner of the paddy detected and seized having not named by the Appellant during his examination U/s 313 Cr.P.C found to be an afterthought plea. Further, during the execution of the Zimanama he (D.W.1) did not show him as owner nor did claimed so. Rather the appellant stated to have purchased the same on 29.12.91 from D.W.1 which was being transported without a valid permission. The learned court, therefore, rightly held the appellant to have failed to establish a probable case in his favour on the face of a well proved case of the Prosecution. 11. The aforesaid findings of the trial court being in conformity with the evidence and law cannot be viewed illegal so as to have a substituting view on the ground of perversity and as such the same is concurred with by this Court. 12. The learned Amicus Curiae, however, submitted that appellant has no criminal antecedents to his credit and is the first offenders and the trial having been concluded about 29 years back and the appellant has become 53 years would destabilize the whole scenario unless the provision of the benevolent legislation i.e the Probation of Offenders Act is not extended to the appellant. 13. This Court, therefore, while concurred with the findings of the learned trial Court is keen to deal with the question as to whether the offence being under a special legislation could be brought Page 4 of 6 // 5 // within the purview of the benevolent legislation of Probation of Offenders Act and found the matter to have 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) as 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 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 Page 5 of 6 // 6 // released on Probation under Section 4 of the Probation of Offenders Act,1958. 14. In the case in hand, having regard to the manner of sentence awarded since the incident took place about twenty nine years back and the appellant has all along being on bail, it is worth to accept the prayer of the learned Amicus Curiae to extend the provision of benevolent legislation. 15. 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 appellant, who is 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 upon executing bond of Rs. 5000/- ( Five thousand) 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 he shall keep peace and be of good behavior.
Decision
16. 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