The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.27 of 2000 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) M/s Ghanashyam Traders, Saheed Nagar, Bhubaneswar and another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Ashok Mohanty, Senior Advocate For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, is filed by the appellants under Sections 374 of the Cr. P.C., assailing the judgment and order dated 17.01.2000 passed by the learned Special Judge, (Vigilance), Bhubaneswar in T.R. Case No.8/6 of 1994/92, whereby the learned trial Court has convicted the accused-appellant No.2(Nityananda Rath) who
Legal Reasoning
was the managing partner of accused-appellant No.1(Firm) for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (herein after the ‘E.C. Act’ for brevity) and, accordingly, sentenced him to undergo R.I. for three months besides fine of Rs.1000/-, in default, to further undergo R.I. for 15 days. However, the learned trial Court didn’t impose any separate penalty on the accused-appellant No.1(Firm). 2. The prosecution has charged the appellants for violation of Rule 12 of Orissa Pulses and Edible Oil Control Order, 1962 which is an offence under Section 7 of the E.C. Act. 3. The case of the prosecution, succinctly stated, is that the appellant’s business premise was raided by vigilance squad during the morning hours on 05.04.1990, which continued till evening. In course of the raid, it was summarily found that:- a) There was shortage of 6 tins of mustard oil, 101 tins of soybean refined oil, 76 tins of Maharaja refined oil and 2 tins of coconut oil, each tin weighing 15 kilograms, 34 packets of mung dal each Page 2 of 10 weighing 50 Kgs and excess of 60 tins of Konark Banaspati Ghee each weighing 15 Kgs. b) The actual stock, price board and the shortage and excess of essential commodities couldn’t be accounted for. In the conspectus of the above material facts, the accused- appellants were charged under Section 7 of the E.C. Act for allegedly violating Rule 12 of the Orissa Pulses and Edible Oil Control Order, 1977 and Orissa Declaration of Stocks and Prices of Essential Commodity Order, 1973 on the ground of various discrepancies and irregularities regarding the maintenance of stock. 4. The prosecution examined six witnesses in order to bring home charges against the accused- appellants. Out of which, P.W.1 was the then Commercial Tax Officer, Bhubaneswar. P.W.2 was the then D.S.P., Vigilance, Bhubaneswar, who was a part of the raid team, P.W.3 was a Senior Clerk in the office of C.S.O., Puri, who produced the license register to prove that the accused was a dealer in edible oil, oil seeds and pulses. P.W.5 was the Inspector, Sales Tax at Cuttack Vigilance Division, who also accompanied the Vigilance officers, P.Ws.4 and 6 Page 3 of 10 were the Vigilance Inspectors, who took part in the raid. However, there was no witness examined by the defense. 5. The learned trial Court analysed the oral evidence and documents on record like the stock, sales register etc. and categorically held that there was no such discrepancy in the stock of commodities, namely, mustard oil, soybean oil, coconut oil, Maharaja refined oil and Moong dal. However, the learned Court below while scrutinizing the evidence on record, found discrepancy regarding the commodity, namely, Konark Banaspati Ghee. Relevant part of the judgement is reproduced herein under for ready reference:- “16. Admittedly, the amount of Konark Banaspati ghee found in the shop of the accused at the time of raid was 168 tins. It is also admitted that that the opening balance of this item of essential commodity as on 1.4.90 was 170 tins. According to the defence, the accused sold 77 tins of Konark Banaspati ghee during the relevant period. Since, the accused did not purchase any stock of Konark Banaspati ghee in between 1.4.90 to 5.4.90, the stock with the accused on 5.4.90 should have been 170-77 tins. Thus it is seen that the accused should have a stock of 93 tins of Konark Banaspati ghee, but the actual stock found in the business premises of the accused was 168 tins. Hence, the accused had excess stock of 75 tins. The learned counsel for the defence argued that the accused had purchased 75 tins of Konark Banaspati ghee on 5.4.90 and therefore, there was neither any shortage nor surplus. Curiously enough this was not suggested to any of the witness. The accused, during his Page 4 of 10 examination u/s 313, Cr.P.C also did not whisper a word about this. The F.I.R. gives a detailed description of the opening balance, the quantity received during the relevant period, the quantity sold during the said period in respect of each item. It has been categorically mentioned in the F.I.R. that there was no purchase of Konark Banaspati ghee on or after 1.4.90 till the raid was conducted on 5.4.90. Since all the registers and cash memos of the accused were seized by the I.O. I.O., there was no reason why the invoice showing purchase of 75 tins of Konark Banaspati ghee was not produced before the I.O. to be seized by him. The learned counsel for the defence contended that despite production of the of the invoice before the I.O., the latter refused to seize the same. In that case the defence could have produced the said document in court during trial to show that the accused had in fact, purchased 75 tins of Konark Banaspati ghee. Admittedly, the raid was conducted in early hours of the day at about 10 a.m. The accused, therefore got sufficient time during the rest of the day to produce a document showing purchase of 75 tins of Konark Banaspati ghee to escape from prosecution of this case. Thus, taking any view from any angle, it is clear that the accused had excess of stock of Konark Banaspati ghee in their business premises. The eplanation of the defence that there was neither any excess nor any shortage of Konark Banaspati ghee is not acceptable.” 6. By appreciating and analyzing the evidence brought on record by the prosecution and taking into account the defense plea eventually the learned trial Court arrived at the following conclusion:- “17. In view of my above findings, I hold that the prosecution has successfully established beyond reasonable doubt that the accused were guilty of keeping extra stock of Konark Banaspati ghee in their business premises. 18. The accused, therefore violated the provisions of the Orissa Pulses and edible Oil Control Order, 1997 and thus are guilty of offence u/s 7 of the essential commodities Act. Page 5 of 10 Accordingly, I hold the accused guilty u/s 7 of the E.C. Act and convict them thereunder.” 7. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Special Judge, (Vigilance), Bhubaneswar, the present Appeal has been preferred by the appellants. 8.
Legal Reasoning
Heard Mr. Ashok Mohanty, learned Senior Counsel appearing for the appellants and Ms. Sarita Moharana, the learned Additional Standing Counsel for the State. 9. Mr. Ashok Mohanty, learned Senior Counsel for the appellants has strenuously argued the case on merits and taken me to the evidence on record. After arguing for some time, he submitted that keeping in view the procrastinated judicial process undergone by the appellants in this case and the ordeal of trial faced by the appellants, he would rather confine his argument to the quantum of sentence. He submitted that the incident pertains to the year 1990 (5.4.1990). The appellants have undergone the rigors of trial for about ten long years. Thereafter, the appeal was preferred in the year 2000 (25.1.2000). The appeal has been prolonging to be heard for about 25 years. The managing partner Page 6 of 10 (appellant no-2) who was in his mid-forties then is now a septuagenarian and, therefore, sending the elderly to custody for fulfilling the remaining sentence at this belated stage would serve no purpose. The learned Senior Counsel further submitted that the appellants have no criminal antecedents, and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants 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 on the judgement of Hon’ble Supreme Court in Page 7 of 10 Tarak Nath Keshari V. State of West Bengal1 , it 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 status, clean antecedents and the fact that the incident had taken place in the year 1990, I am of the considered view that the appellant No.2 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 also covered by ratio of the judgment of this Court in the 1 2023 SCC OnLine SC 605 Page 8 of 10 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 no-2 to suffer further imprisonment, this Court directs the appellant No.2 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) within one month 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 No.2 shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months. However, the sentence for fine of Rs.1,000/- is upheld which shall be payable by the appellant No.2 as per the procedure established by law, in default of which suffer a simple imprisonment for a period of 15 days. 2 2012 (Supp-II) OLR 469 Page 9 of 10 13. With the above observation, the CRA is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2025 17:09:18 Page 10 of 10