The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.385 of 1992 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 13th November, 1992 passed by the learned Session Judge-Cum-Special Judge, Ganjam, Berhampur in G.R. No.9 of 1990 (V) (T.R. No.6 of 1990). Kotini Someswar Rao …. Appellant ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.A.K. Mishra, B. Sahoo, A.K. Sahoo & P.K. Mishra (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 21.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 13th November, 1992 passed by the learned Session Judge-Cum- Special Judge, Ganjam, Berhampur in G.R. No.9 of 1990 (V) (T.R. No.6 of 1990). CRA No.385 of 1992 Page 1 of 6 By the impugned judgment, the Appellant (accused) has been convicted for commission of the offence under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (for short, ‘the E.C. Act). Accordingly, he has been sentenced to undergo simple imprisonment for one (1) year and pay fine of Rs.1,000/- (Rupees One Thousand) in default to undergo simple imprisonment for two (2) months for commission of the said offence. 2. Prosecution Case:- The accused is the sole proprietor of M/s.Somasekhar Traders, Marthapeta Street, Berhampur. He has to godowns; one situated in Beeraka Sahi, Berhampur and the other at Jaura Street, Berhampur. It is alleged that during raid made by the Inspector of Vigilance, Berhampur (P.W.8) with his other staff as also the staff of Civil Supplies Department, the accused was found to have stored 2116 quintals of Pulses including Grams, 105 quintals of Soda Ash and 171.75 quintals of Edible Oils in the business premises and the godowns of the accused. Thus, it is stated that the accused had stored the said quantity of Pulses including Grams in contravention of 4 (i) of Pulses, Edible Oil Seeds and Edible Oils (Storage Control) Order, 1977 (for short, ‘the Central Order) and clause 3 of the Odisha Declaration of Stocks and Prices of Essential Commodities Act, 1973 (for short, ‘the State Control Order’) CRLA No.385 of 1992 Page 2 of 6 Finally, on completion of the investigation, the faced the Trial. The Trial Court has found the accused guilty for commission of the offence under section 7(1)(a)(ii) of the E.C. Act for violating Clause-3 of the Central Order Control Order and Clause 3 (2) of the State Control Order. 3. Learned counsel for the Appellant (accused) submitted that the Trial is vitiated for non-compliance of the provision contained in section 251 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) read with section 262 of the Code in its letter and spirit as mandated under law. Inviting the attention of this Court to the order dated 25.04.1991 passed by the learned Session Judge-Cum-Special Judge, he contended that the same is not in compliance of the provision contained in section 251 read with section 262 of the Code and, therefore, the accused, having been highly prejudiced, the outcome of the Trial proceeding with such order cannot be sustained. 4. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State submitted that the order when is read as a whole would amount to substantial compliance of the provision contained in section 251 read with section 262 of the Code and the Court should refrain from making a hyper technical approach in CRLA No.385 of 1992 Page 3 of 6 arriving at the conclusion as regards the compliance of the provision contained in section 251 of the Code. 5. Keeping in view the submissions made; I have carefully read the order dated 25.04.1991 which is projected to be not in compliance of the provision of Section 251 read with section 262 of the Code, vitiating the Trial. 6. As provided in Clause-f of Sub-section 1 of section 12-AA of E.C. Act, all the offences under the Act are to be tried in a summary way and the provisions contained in section 262 to 265 (both inclusive) of the Code shall as far as may be, apply to such trial with the rider that in that case the Special Court can lawfully sentence the accused for imprisonment for a term up to two years. The provision contained in Sub-section 1 of Section 262 of the Code says that in such trial in summary way, the procedure for trial of the summons-case shall be followed. Therefore, the legal need stands for compliance of the provision of section 251 of the Code for commencement of the Trial. It reads that the accused when appears or is brought before the Magistrate, the particulars of the offence of which, he/she is accused of accused are required to be stated to him/her and then he/she is required to be asked whether he/she pleads guilty or has any defence to make. CRLA No.385 of 1992 Page 4 of 6 7. In the backdrop of the above, the order dated 25.04.1991, being gone through, it is seen to have been noted therein that particulars of the offences under section 7 of the E.C. Act are read over and explained to the accused, who pleaded not guilty. Section 7 of the E.C. Act provides the penalty for contravention of any Order made under section 3 of the E.C. Act. In the case at hand, the contravention, as alleged, is in relation to clause of Control Orders; one is in relation to Central Control order and the other one refers to the State Control Orders. “Particular of offences are read over and explained to the accused, who plead not guilty and claims for trial.” A bare reading of the aforesaid order would reveal that the provision of section 251 of the Code has not at all been complied with in as much as the relevant clause of the relevant Control Order and State Control Order for whose violation the accused is said to have committed the offence under section 7 of the E.C. Act have not been mentioned nor the facts, which constitute such violations are indicated. In that view of the matter, for non-compliance of the provision of section 251 read with section 262 of the Code, the prejudice to the accused persons is writ large and thus, the outcome wherein the Trial Court has passed the judgment of CRLA No.385 of 1992 Page 5 of 6 conviction and order of sentence cannot be sustained as the Trial stands vitiated. 8. For the said reason, in my view the judgment of conviction and order of sentence challenged in this Appeal cannot be sustained. Since in the given case, it is found that the offence, being said to have been committed on 06.04.1990, the trial stood concluded on 13.11.1992 and as by now, there has been lapse of more than 31 years and 6 months, in my considered opinion, it would not be in the interest of justice, at this distance of time to pass an order for retrial. 9. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 13th November, 1992 passed by the learned Session Judge-Cum-Special Judge, Ganjam, Berhampur in G.R. No.9 of 1990 (V) (T.R. No.6 of 1990)., are hereby set aside. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.385 of 1992 Page 6 of 6