The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.A. No.206 of 1996 (In the matter of an application under Section 374(2) of the Criminal Procedure Code.) Bijaya Kumar Sahu and another -versus- State of Orissa …. …. Appellants Respondent Appeared in this case:- For Appellant For Respondent : : Mr. SJ.R. Dash, A.K. Mohanty and Ms. K.L. Dash, Advocate Mr. T.K. Praharaj Leaned Standing Counsel Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 03.10.2023 / date of judgment :19.10.2023 A.C. Behera, J. The appellants, by preferring this appeal have called in question to the judgment of conviction and order of sentence passed on dated 02.07.1996 in Special Case No.42 of 1993 by the District Judge-cum-
Legal Reasoning
Judge, Special Court, Dhenkanal-Angul, Dhenkanl arising out of Talcher P.S. Case No.183 of 1993. 2. The appellants have been convicted in Special Case No.42 of 1993 by the learned District Judge-cum-Judge, Special Court, Dhenkanal- // 2 // Angul, Dhenkanl for commission of offence under Section 7 of the Essential Commodities Act, 1955. 3. For the above conviction, they (appellants) have been sentenced to undergo R.I. for four months and to pay a fine of Rs.500/- each in default to undergo R.I. for one month each. 4. The case of prosecution against the accused persons (appellants of this appeal) before the trial court in Special Case No.42 of 1993 was that, on 04.12.1993 evening, while the OIC of Talcher Police Station, namely, Pravakar Swain was performing patrolling duties at Hatatota Bazar detected about the illegal storing of huge quantity of Hydrolic Oil and Grease by the accused persons in different containers in their wooden cabin for the purpose of selling. For which, he (OIC) entered into that wooden cabin at Hatatota Bazar and searched that cabin. On search, he (OIC) found illegal storing of Hydrolic Oil and Grease by the accused persons. When, on demand of the OIC, the accused persons could not able to produce any authority about their possession of such huge quantity of Hydrolic Oil and Grease, i.e., 340 liters of Hydrolic Oil and 30 Kgs. Grease, then, he (OIC) seized the said Hydrolic Oil and Grease kept in different containers in presence of the witnesses through seizure list (Ext.1/2) and drew up F.I.R. (Ext.2) then and there at the spot and started investigation. 5. During investigation, he (OIC) arrested both the accused persons, examined the witnesses, brought the accused persons along with the seized Hydrolic Oil and Grease kept in the containers from the spot and forwarded the accused persons to the court. // 3 // 6. After completing the investigation, he (I.O., i.e., OIC, Pravakar Swain) submitted Final Form against the accused persons placing them (accused persons) for their trial before the Special court under Section 7 of The Essential Commodities Act, 1955 alleging the violation of clause(3) of The Orissa Petroleum Products (Sale by Dealers) Order, 1979 and The Orissa High Speed Diesel(Dealers Licensing) Order, 1979. 7. Accordingly, both the accused persons faced trial before the Special court in Special Case No.42 of 1993 having been implicated with an offence under Section 7 of The Essential Commodities Act, 1955 for violation of clause(3) of The Orissa Petroleum Products (Sale by Dealers) Order, 1979 and The Orissa High Speed Diesel(Dealers Licensing) Order, 1979. 8. The plea of the defence was one of complete denial and false implication of the accused persons. 9. The specific plea/case of the defence was that, nothing was seized from the possession of the accused persons, but, they (accused persons) have been implicated (entangled) into the case falsely by the OIC Talcher Police Station. 10. On conclusion of hearing, the trial court (Special Court) found both accused persons guilty for the offence under Section 7 of The Essential Commodities Act, 1955 and convicted them thereunder and for such conviction, passed order of sentence against them as aforesaid on dated 02.07.1996 in Special Case No.42 of 1993. 11. In order to assail the impugned judgment of conviction and order of sentence passed against the accused persons (appellants), the learned
Legal Reasoning
counsel for the appellants contended that, there is no sufficient material // 4 // in the record to establish the seizure of the alleged Hydrolic Oil and Grease from the possession of the accused persons, for which, the impugned judgment of conviction and order of sentence cannot be sustainable under law. 12. But on the contrary, the learned Standing Counsel for the State in support of the impugned judgment of the trial court, argued that, the well corroborated evidence of P.Ws.1 and 4 is fully justifying the judgment of conviction and order of sentence passed by the trial court against the accused persons(appellants). 13. It appears from the judgment of the trial court that, the accused persons have been convicted under Section 7 of The Essential Commodities Act, 1955 for violation of clause(3) of The Orissa Petroleum Products (Sale by Dealers) Order, 1979 and The Orissa High Speed Diesel (Dealers Licensing) Order, 1979. 14. Clause(7) of the Orissa Petroleum Products (Sale by Dealers) Order, 1979 clarifies the designation of the competent authority/person to enter into any place or premises for search and seizure and to take action against the violators of clause(3) of that order. 15. According to clause(7) of the Orissa Petroleum Product (Sale by Dealers), Order, 1979, any officer not below the rank of Inspector of supplies is authorized in this behalf by the State Government for entering into any place or premises for search and seizure in order to take actions against the violators of clause(3) of the said order. 16. Clause(8) of the Orissa High Speed Diesel (Sale by Dealers), Order, 1979 clarifies about the designation of the competent // 5 // authority/person to enter into any place or premises for search, seizure and to take action against the violators of clause(3) of the said order. According to clause(8) of the said Orissa High Speed Diesel (Dealers Licensing) Order, 1979, any Police Officer, who is above the rank of Sub-inspector can only enter into any place or premises for search, seizure and to take action against the violators of clause(3) of the said order. 17. Here in this case at hand, the Investigating Officer, i.e., P.W.4 (OIC Talcher Police Station, namely, Pravakar Swain) was not above the rank of Sub-inspector of Police at the time of alleged entry, search and seizure for taking actions under The Orissa High Speed Diesel (Dealer Licensing) Order, 1979. Absolutely, there is no material in the record on behalf of the prosecution to show that, the P.W.4 was above the rank of Sub-inspector at the time of alleged entry, search and seizure relating to the case at hand. 18. Therefore, according to The Orissa High Speed Diesel (Dealer Licensing) Order, 1979 and The Orissa Petroleum Products (Sale by Dealers), Order, 1979, P.W.4 (OIC Talcher Police Station) was neither competent nor an authorized person under law to enter into the place of the alleged search and to make seizure and as well as to take actions for violation of the provisions of the clause no.3 of the above orders and to investigate into the matter. 19. For which, the so-called entry, search and seizure relating to this case has not been made by a competent or lawful authority. Therefore, // 6 // the so-called entry, search and seizure made by the P.W.4 in this case at hand is held to be illegal. Therefore, no conviction against the accused persons is sustainable on the basis of the above illegal entry, search and seizure. So, on this ground, the impugned judgment of conviction and order of sentence passed by the learned trial court against the accused persons cannot be sustainable under law. The conclusion, drawn above regarding the unsustainability of the impugned judgment of conviction and order of sentence passed by the learned trial court, against the accused persons finds support from the ratio of the following decisions of the Hon’ble Courts and the Apex Court, those have been passed in respect of the violation of other orders, which are pari materia and akin to this case at hand :- (i) (2023) 90 OCR (SC)-619—Section 7—Liquified petroleum Gas (regulation of supply and distribution order 1988—clause-7—Power of entry, search and seizure by S.I. of Police along with other police. Nothing has been placed on record to support the prosecution case that, S.I. of Police was authorized to take action under the order. Held, absence of the authority and power with S.I. to take action as per the order, the proceedings initiated by him will be totally unauthorised and have to be struck down. // 7 // (ii) 2003(I) CCR-329(A.P.)—Section 7—Motor Sprit and High Speed Diesel (regulation of Supply) and Distribution and Prevention of mal practice Order, 1988—Inspector of Vigilance not authorized to conduct search and seizure in view of the express provision in clause-4 M.S. and HSD Order. (iii) 2003(3) Civil Law Times (Patna)-300—E.C. Act, 1955—Sections-6A and 6C read with motor Spirit and High Speed Diesel (Regulation of supply and distribution and prevention of mal practices) order, 1998—Clause-4—Seizure made by officer-in-charge and by supply officer and not by gazette officer of central or State Government or any police office not below the rank of DSP—seizure contrary to the provisions of law— Diesel Oil directed to be released to the parties. 20. In addition to the above loopholes and lacunas of the prosecution, P.W.4 himself has deposed in his evidence by stating that, at the time of entry, search and seizure, the SDPO, Talcher was with him along with the police driver (P.W.1). The driver of the police (P.W.1) has not uttered a single word in his entire evidence about the seizure of any Hydrolic Oil or Grease in his presence by P.W.4. 21. The examination of the SDPO (who is the superior officer of P.W.4 and who was present at the spot with P.W.4 as per his version), has been withheld by the prosecution without any plausible explanation. // 8 // Two independent witnesses, i.e. P.Ws.2 and 3 have not at all supported the case of the prosecution regarding the seizure of any Hydrolic Oil or Grease from the possession of the accused persons. 22. There is no material in the record on behalf of the prosecution to show about the ownership and possession of the accused persons over the wooden cabin in question at Hatatota Bazar. The above materials, i.e., non-support of the independent witnesses, i.e. P.Ws.2 and 3 to the case of the prosecution and non- disclosure by the P.W.1, (police driver) about the seizure of any Hydrolic Oil or Grease from the possession of the accused persons through any seizure list, withholding of the examination of the superior officer of P.W.4 without any explanation and absence of any material about the ownership and possession of the accused persons over the wooden cabin in question is ultimately making the case of the prosecution doubtful and suspicious. 23. On analysis of the facts and circumstances of the case, as per the discussions and observations made above, the impugned judgment of conviction and order of sentence passed by the trial court under Section 7 of the Essential Commodities Act, 1995 against the accused persons cannot be sustainable under law. For which, there is justification under law for making interference with the impugned judgment of conviction and order of sentence through this appeal filed by the appellants. So, the appeal filed by the appellant must succeed. 24. In the result, the appeal filed by the appellants is allowed. The impugned judgment of conviction and order of sentence passed on dated 02.07.1996 in Special Case No.42 of 1993 under Section 7 of the // 9 // Essential Commodities Act, 1955 against the accused persons by the District Judge-cum-Judge, Special Court, Dhenkanal-Angul, Dhenkanal are hereby set aside. 25. The accused persons are acquitted from the offence under Section 7 of the Essential Commodities Act, 1955. Therefore, the accused persons(appellants) are directed to be set at liberty forthwith after being discharged from their respective bail bonds. Accordingly, the appeal is
Decision
disposed of finally. (A.C. Behera) Judge Orissa High Court, Cuttack The 19th of October, 2023/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 20-Oct-2023 11:44:41