The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.132 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Purusottam Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Anup Mishra, Advocate
Legal Reasoning
On behalf of Mr. A.K. Mishra, Advocate For the Respondent : Mr. Sarbeswar Behera, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Sections 374(2) of the Cr. P.C. read with Section 12 AB of the Essential Commodities Act, 1955 is directed against the judgment and order dated 05.04.1994 passed by the learned Special Court, Mayurbhanj, Baripada in 2(c)C.C. No.06 of 1992/T.C. No.14 of 1992, whereby the learned trial Court has convicted the accused-appellant for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (herein after ‘E.C. Act’ for brevity) and, accordingly, sentenced him to undergo R.I. for six months. 2. The appellant stood charged for offences under Section 7 of the E.C. Act read with Clause 3(1)&(2) Orissa Rice and Paddy Control Order, 1965 and claimed trial by denying the charges. 3. The prosecution alleged that on 19.04.1990, the rented shop of the accused-appellant was raided by the B.D.O., G.B. Nagar and the supply staff of Udala inspected this rented premises and found 25 bags of rice which weighed around 24 Quintals and 77 KGs. However, the accused had no license to store rice beyond permissible limits, as a result of which the stock was seized and subsequently appellant was charged under section 7 of the E.C. Act for violation of Clause 3(1)&(2) Orissa Rice and Paddy Control Order, 1965. 4. The prosecution in order to bring home charges examined four witnesses. Out of which, P.W.1 was the then Marketing Inspector of the Page 2 of 8 Khunta Block. P.W.2 was the then B.D.O. Khunta Block, P.W.3 was the landlord of the house from where the commodities were seized, and P.W.4 was the cultivator and shopkeeper. The defence examined one witness D.W.1, who claims to be the owner of some part of the seized stock. 5. The learned trial Court analysed the evidence on record in detail and returned the following findings:- “P.W.3 says that the accused had taken his house on rent and he used to keep rice in that house and transact business in rice in that house. He said that the accused was paying a monthly rent of Rs 70/- to him P.Ws. 1,2 and 4 say that on 19.4.90 the house of P.W.3, which the accused had taken on rent was inspected and 25 bags of rice were seized from that house. These witnesses say that after taking weighment of the rice of those bags seizure list was prepared and the rice stock was given in the Zima of one Iswar Mohanty, who executed a zimanama. The seizure list, Ext. 1, the weighment sheet Ext.2 and the Ext.3 clearly support the statements of P.Ws. 1,2 and 4. The accused also admitted that Q.24.77.K.Gs. of rice in 25 bags were recovered fro the house in question, his plea is that he and some othe persons had kept the rice in that house and that only 5 bags of rice belonged to him.D.W.1 says that he had kept 5 quintals of rice in the house of Gouraheri Berik and other persons namely Prasanna Kumar Ratha, Niranja Chowdhury and Dusasan Behera had also kept their rice in that house. Even P.W.4 says that accused, Prasanna Ratha, Dusasan Behera and Parikhita Behera used to store their rice in that house. P.W.4 and D.W.1 however gave sufficient indication in their statements that they are trying to protect the accused by giving untrue evidence. P.W.4 says that he can not say how Page 3 of 8 much rice was kept by which person and for what purpose the rice stock had been kept in that house. He does not know whether the accused alone used to pay rent or the other four persons used to contribute. D.W.1 is unable to say the name of the owner of the house where the rice stock was there, he says that he is not a relation of the house owner and has not explained why and how he had kept the ric in that house. D.W.1 further says that he reached the spo soon after the seizure, but there is no indication that he put forth his claim before the Supply staff. The house owner says that he gave his louse on rent to the accused alone. The accused says that he had taken the house on rent from P.W.3. The accused is not able to say why he allowed the other four persons to keep their rice stock in that house. At one point the accused indicates in his statement that his house was gutted in fire, so he had taken the house of P.W.3 on rent. If that was so, then there was no reason for four outsiders to keep their rice in that house. In every respect the defence plea seems highly improbable. There is no document or oral evidence to show that the other persons bought and kept their rice in the house of the accused. So from the evidence of the prosecution and from the very admission of the accused, it has become clear that the rice weighing Q.24. 77 .K.Gs. in 25 bags were the rice of the accused and it was in his exclusive possession.” 6. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defence plea eventually the learned trial Court recorded the guilt of the appellant by concluding as under: “6.Clause 3(1) of the Orissa Rice & Peddy Control Order, 1965 says that no person would take up trade in rice as dealer without having a licence. Clause 3(2) of the said Control order says that any person who is found to be in possession of more than 10 quintals of rice will be Page 4 of 8 automatically presumed to be a dealer. The accused was in possession Q 24.77K.Gs of rice and as per the statements of P.Ws.1 to 4, he was carrying on trade in rice, but on demand could not produce any licence. The accused also admits that he has no licence. By storing more than 10 quintals of rice, the accused becomes a dealer, but he had no licence to act as a dealer. So he contravened the provisions of Clause 3(1) & (2) of the Orissa Rice & Paddy Control Order, 1965. Violation of such clause is punishable U/S 7 of the E.C. Act. Therefore, I hold the accused guilty U/S 7 of the E.C. Act. Section 7 of the E.C. Act provides punishment up to seven years, but Section 12 AA of the said Act, the period of imprisonment has been restricted to two years. Considering the quantity of rice seized, the status of the accused as a petty trader and the surrounding circumstances, I am inclined to take a lenient view and sentence the accused to undergo R.I. for a period of six months,” 7. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Special Court, Mayurbhanj, the present Appeal has been preferred by the appellant. 8. Heard Mr. Anup Mishra, learned Counsel appearing for the appellant on behalf of Mr. A.K. Mishra, learned counsel and Mr. A.K. Apat, the learned Additional Government Advocate for the State. 9. Mr. Mishra, learned counsel for the appellant has strenuously argued the case on merit and taken me to the evidence on record in elaboration. After arguing for some time, he submitted that keeping in view the procrastinated judicial process undergone by the appellant in Page 5 of 8 this case and the ordeal of trial faced by the appellant, he would rather confine his argument to the quantum of sentence. He submitted that the incident pertains to the year 1990 (19.04.1990). The appellant has undergone the rigors of trial for about four years. Thereafter, the appeal was preferred in the year 1994 (19.04.1994). The appeal has been prolonging to be heard for about 31 years. At the time of incident, the appellant was at his fifties. At present is an octogenarian and, leading a respectful retired life along with his family. He does not have any criminal antecedents. Therefore, sending him to custody at this belated stage would serve no purpose, rather it would be harsh owing to his age. A stigma would be attached to the entire family if the appellant is incarcerated at this stage. Therefore, in the fitness of situation, the appellant may be extended the benefit of Probation of Offenders Act read with Section 360 Cr.P.C. 10. Taking into consideration the entire conspectus of the matter, it would be apt to rely upon the judgment of Hon’ble Supreme Court in the Page 6 of 8 case of Tarak Nath Keshari V. State of West Bengal1, in which it was held thus: -
Decision
“11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab. 12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence.” 11. Besides the Judgment quoted above, regard being had to the age of the appellant, his societal position, clean antecedents and the fact that the incident had taken place in the year 1990, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellant is 1 2023 SCC OnLine SC 605 Page 7 of 8 also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2. 12. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. 13. With the above observation, the CRA is accordingly disposed of. The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna (S.S. Mishra) Judge 2 2012 (Supp-II) OLR 469 Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:46:04 Page 8 of 8