The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 305 of 1995 (In the matter of an application under Section 375 (2) of Criminal Procedure Code) Prasanta Kumar Bhaduri &&. @ Prasanta Kumar Bhadury Appellant -Versus- State of Orissa &&. Respondent For the Appellant : Ms. Rakhi Mishra, Amicus Curiae For the Respondent : Mr. A.K. Apat, AGA CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 30.10.2025 : Date of Judgment: 30.10.2025 S.S. Mishra, J. The sole appellant by filing the present appeal has assailed the judgment of conviction and order of sentence dated 03.11.1995 passed by the learned Judge (Special Court), Sambalpur in T.R. Case No. 12 of 1991, whereby the appellant has been convicted for commission of offence under section 7 of the E.C. Act for having violated clause-3 and sub-clause-2 of the Orissa Rice and Paddy Control Order, 1965 and, thereby, sentencing him to undergo S.I. for three months and to pay a fine of Rs.1,000/- (rupees one thousand), in default to undergo S.I. for a further period of one month. 2. The present appeal is pending since 1995. When the matter was listed for hearing, consistently none appeared for the appellant. Therefore, Ms. Rakhi Mishra, who was present in Court, was requested by the Court to assist in the matter as an Amicus Curiae and vide order dated 14.10.2025, she has been appointed as an Amicus Curiae and she rendered her effective assistance in the matter and she has also filed written notes of submission. 3. Heard Ms. Rakhi Mishra, learned Amicus Curiae for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. Page 2 of 10 4. The prosecution case, in brief, is that on 10.04.1991 at 7.00 P.M. when the informant was performing patrolling duty at Beldihi near Charibati, he detected a truck bearing Registration No.MP-26B-2681 proceeding to Angul from Sambalpur side. The truck was carrying 200 bags of cement and 35 bags of rice. On being asked, the appellant disclosed the name of other two accused persons in the truck and by saying that they were the owners of the rice. It is alleged that neither the appellant nor the co-accused persons could show any documents authorising the transportation of rice. Seizure list was prepared at the spot and then the truck was taken to Rairkhol Police Station. The truck along with the documents and 200 bags of cement was given in the zima of one Harish Kumar Tuli and 35 bags of rice were given in the zima of one Manohar Jhansiwala of Rairkhol. 5. On the basis of the aforementioned allegations, investigation was conducted and charge sheet was filed and charge was framed against the appellant for commission of offence under Section 7 of the E.C. Act and on his stance of complete denial and claimed for trial, he was put to trial. Page 3 of 10 6. In order to establish the charges, the prosecution examined four witnesses. Out of them, P.Ws.1 and 2 were the independent witnesses those who have not supported the prosecution case. Hence, the prosecution case only hinges upon the testimony of P.Ws.3 and 4. P.W.3 was the A.S.I. of Police, who accompanied with P.W.4, the O.I.C. of Rairkhole P.S., while search and seizure of the truck driven by the present appellant from which 35 bags of rice was recovered. 7. The learned trial court by relying upon the seizure list as well as the testimony of P.Ws. 3 and 4 have arrived at the following conclusion:- <6. Once the case of accused Ganeswar and Madhusudan is segregated from that of the driver, we can take note of the following proved facts to connect the transport of rice to be within the knowledge of the driver. The driver was in charge of the truck in question wherein 35 bags of rice were kept over the cement load. Merely because the accused driver has denied that he was not taking rice in his truck or that his truck has not been checked by the police officials, the same cannot be accepted as a genuine defence plea in face of the cogent, unimpeachable and direct evidence of P.Ws. 3 and 4. The fact that 35 bags of rice were loaded in the Dala of the truck was perfectly within the knowledge of the driver which can very well be presumed regard being had to the fact that the accused driver had his dominion over the truck in question. More over the official witnesses have focussed their attention on the driver by placing demand before him to show valid Page 4 of 10 documents in support of the transportation of the rice but he failed to do so. 7. Clause-3, sub-clause (1) of the Order enshrines a prohibition that no person shall act as a dealer except under and in accordance with a licence issued in that behalf by the Licensing Authority. The word "dealer" has been defined under Clause-2(b) of the Order which means a person engaged in the business of purchase or sale of rice or paddy or rice and paddy taken together in quantities exceeding five quintals or of storage for sale of rice or paddy or rice and paddy taken together in quantities exceeding 10 quintals at any time. However, there appears deeming provisions at Clause. 3 sub-clause(2) of the Order. For the purpose of Clause-3 any person who stores rice or paddy or rice and paddy taken together in quantities exceeding 10 quintals inside the State of Orissa shall, unless the contrary is proved, be deemed to act as a dealer. Having held above that the accused driver was in possession of 35 bags of rice weighing 35 quintals, he is deemed to have acted as a dealer. It has been proved in a crystal mariner that the accused driver only produced documents in support of transportation of 200 bags of cement but could not produce any licence in support of transportation of rice which highlights the contravention under Clause 3 of the Order. 8. Of course it was piloted by the learned counsel for the accused persons that the prosecution has not been able to prove that it is the accused driver who was engaged in the business of purchase or sale of rice weighing 35 quintals but it is futile on the part of the defence to expect the prosecution to adduce direct evidence about the above deal. That is how the deeming provisions of Clause-3 sub- clause(2) of the Order shall govern this case shifting the burden of proof to the accused to prove the contrary. In other words it is the accused driver who ought to have proved that he is not a dealer as defined under the Order. No iota of proof has been given by the accused driver so as Page 5 of 10 to dispel away the effect of the deeming provisions. That is how it has been well proved by the prosecution that the accused driver has contravened the provisions of Clause 3 of the Order which is punishable u/s.7 of the Essential Commodities Act.= 8. Aggrieved by the aforementioned findings, which led to conviction and sentence, the appellant has filed the present appeal. 9. Mr. Rakhi Mishra, learned Amicus Curiae has taken me to the evidence of P.Ws.3 and 4 and pointed out the glaring contradictions in the testimony. She has submitted that so far as the recovery is concerned, it is doubtful in view of the inconsistent version of the prosecution. She stated that the story as emanating from the FIR, charge sheet and the evidence of the witnesses reveals that the seizure itself is doubtful. 10. Mr. A.K. Apat, learned Additional Government Advocate for the State, however, relying upon the same set of evidence has justified the reasonings recorded by the learned trial court, which led to recording of conviction against the appellant under Section 7 of the E.C. Act. He submitted that the minor variations in the evidence of the witnesses will Page 6 of 10 not enure to the benefit of the appellant which calls for interference in the present appeal. 11. I have perused the evidence on record in the light of the submission made by the parties. It is seen from the F.I.R. that 35 bags of rice were seized from the truck which was carrying 200 bags of cement along with the rice bags. However, after investigation, the charge sheet was filed by the investigating agency. In the charge sheet, it is very categorically stated by the I.O. that on 10.04.1991 at about 7 p.m. the accused person was transporting 32 bags of rice without any document in the truck bearing Regd. No. MP-26B-2681 with a view to sell it in the open market. However, from the evidence of P.W.3 and 4 it would reveal that both the witnesses have categorically stated that they have detained the truck and search was made. On search, they found that 200 bags of cement and 35 bags of rice being transported. On demand, the driver (appellant herein) though shown the permit and other documents concerning the transportation of cement bags, but could not produce any document in support of transportation of rice. Therefore, P.W.4 seized the truck along with the cement and rice in presence of the witnesses, Page 7 of 10 namely, P.Ws.1 and 2 and prepared the seizure list as well. In so far as the seizure of the rice bags are concerned, though it was claimed by the prosecution that it has been done in presence of P.Ws.1 and 2, but both the independent witnesses have not supported the prosecution case and they have clearly denied having any knowledge of such seizure. When P.W.4 was examined, the Court put a very specific question regarding the weight of the seized rice alleged to have been recovered from the truck and to that the said witness has stated that the weight of rice was 33 qntls and 39 kg. The relevant part of the evidence is as under:- <3. I then arrested the accused and forwarded him to court in custody. I released the seized truck and the cement in the zima of Harish Kumar Tuli under the orders of this court vide Zimanama Ext.3. I also released the seized rice in favour of the Storage Agent Manohar Kumar Jhansiwala under Zimanama Ext.4. On completion of investigation, I submitted charge-sheet against the accused persons u/s.7 of the E.C. Act. To Court The total weight of seized rice came to 33 quintals 39 K.Gs. but not 35 quintals as stated earlier.= 12. Perusal of the seizure list Ext.1 also reveals that 35 bags of rice alleged to have been seized and each bag contains one quintal of rice. Page 8 of 10 Therefore, the total weight ought to have been 35 quintals in 35 bags. There is apparent variation in the evidence on record regarding the quantity of rice recovered. The charge sheet mentions 32 bags of rice, whereas the witnesses deposed that 35 nos. of bags of rice of 35 quintals in weight was recovered. However, the learned trial court put a specific question to P.W.4, to which he stated that the weight of the rice was 33 quintal 39 kg. Similarly, the statement of the accused was recorded under Section 313 Cr.P.C. to the following effect:- It also transpires from the evidence on <Q.No.6- record that on weighment the net weight of the seized rice came to 33.39 quintals. What have you got to say? Ans. I cannot reply.= 13. This being the nature of evidence, the quantity of the seized rice being disputedly borne on record, I feel it appropriate to extend the benefit of doubt to the appellant. 14. In view of the aforementioned, I am not inclined to accept the findings recorded by the learned trial court. Accordingly, it is held that the prosecution could not prove the case beyond all reasonable doubt. Hence, by extending the benefit of doubt, the appellant is acquitted of Page 9 of 10 the charge under section 7 of the E.C. Act. The bail bond furnished stands discharged. 15. Accordingly, the Criminal Appeal is allowed. 16. This Court records the appreciation for the effective and meaningful assistance rendered by Ms. Rakhi Mishra, learned Amicus Curiae. She is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th October, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2025 10:46:12 Page 10 of 10