The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.78 of 2001 (In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973) Padma Charan Swain ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mohammed Faradish, Advocate For the Respondent : Mrs. Siva Mohanty Additional Standing Counsel CORAM:
Legal Reasoning
“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.” 14. Besides the Judgment quoted above, regard being had to the age of the appellant, his societal position, clean antecedent and the fact that the incident had taken place in the year 1997, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act. Additionally, the case of the appellant is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp- II) OLR 469. Therefore, while not interfering with the judgment of conviction recorded against the appellant for the offence as stated Page 8 of 9 above, I am inclined to grant the benefit of the Probation of Offenders Act so as to suffice the sentence part. 15. 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 six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within a 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 shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. This appeal is directed against the judgment dated 03.04.2001 passed by the learned Special Judge, Koraput at Jeypore in T.R. Case No. 38 of 1998, whereby the appellant, Padma Charan Swain was convicted for the offence under Section 7 of the Essential Commodities Act, 1955 read with Clause 3 of the Orissa Rice and Paddy Control Order, 1965, and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for one month. The co-accused, Jatindra Kumar Swain, the son of the appellant, was acquitted of all charges. 2. The case of the prosecution, in brief, is that on 07.10.1997 at around 1:30 PM, the Marketing Inspector of Sunabeda inspected a grocery shop allegedly owned by the appellant but operated by his son, Jatindra Kumar Swain, located at Semiliguda in Koraput District. At the time of inspection, accused Jatindra Kumar Swain was present in the shop and allegedly conducting business. The Marketing Inspector found that the stock and price board was not displayed as required under the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. Upon physical verification, he found stored in the shop 16 quintals and 26 kilograms of common rice, along with other essential commodities such as Mung Dal, Arhar Dal, Black Gram, Suji, and Flour in quantities exceeding permissible limits. The accused could not produce any licence authorizing such storage or sale. Consequently, the Marketing Inspector seized the stock after weighment, and a seizure list Page 2 of 9 and weighment chart were prepared at the spot, duly signed by the accused and witnesses. 3. Upon further investigation, it was revealed that while the shop was in the name of Padma Charan Swain, his son, Jatindra Kumar Swain, was in fact a student and not actively engaged in business. The ownership and responsibility for the stock were traced back to the present appellant, Padma Charan Swain, his father. The prosecution accordingly filed the case under Section 7 of the Essential Commodities Act, alleging contravention of Clause 3 of the Orissa Rice and Paddy Control Order, 1965 and Clause 3 of the Declaration Order. 4. The defence of the appellant was one of denial. Both accused persons, during their examination under Section 313 Cr.P.C., claimed that the seized stock did not belong to them. Jatindra Swain, who also deposed as D.W.2, stated that the shop was closed and was opened only at the instance of the Inspector. He claimed the rice was stored inside the house for personal use. Padma Charan Swain, on the other hand, claimed the stock belonged to one Haranarayana Mishra, who had Page 3 of 9 produced the rice from his own agricultural field and had stored it temporarily in the appellant's house. 5. The prosecution examined only two witnesses. P.W.1 was an independent witness to the seizure and P.W.2 was the Marketing Inspector who conducted the inspection. Both had deposed regarding the presence of excessive stock and lack of licence. The defence examined two witnesses, including the accused Jatindra Swain and a witness to the seizure. 6. The learned trial Court, after evaluating the evidence on record, came to the conclusion that the defence plea regarding Haranarayana Mishra was an afterthought, noting that no such suggestion was made during cross-examination of the prosecution witnesses, and that said Mr. Mishra was not examined by the defence. The Court disbelieved the shifting versions of the defence and held that storage of rice exceeding 10 quintals, regardless of whether in a shop or residence, without licence, attracted the statutory presumption under the Control Order. However, considering the student status of Jatindra Swain, the Court held that only Padma Charan Swain could be held responsible. Page 4 of 9 7. The learned trial Court, after credible analysis, has arrived at the following finding- “The evidence of p.w1 is supported by D.Ws. 1 and 2 both of whom stated that at the time if inpsection the shop was closed. Both the accused persons during their examination under section 313 Cr.P.C. also took the same plea. The pleas that the shor room was closed at the time of inspection was taken by the defence from the very beginning and was suggested to both the prosecution witnesses. Thus it is seen that the defence plea is consistent and has been supported by evidence including that of the prosecution witnesses. In the case of Ramanath Das v. State of Orissa, reported in 1981 C.L.R. 80, his lordhsip of our own High Court held that the defence plea, if finds support from the evidence of some of the prosection witnesses, should be accepted. In view of such clear-cut decision and consistency of the defence plea, I am inclined to hold that the shop was closed at the time of inspection and the accused persons were under no obligation to display a stock and price Board as required under the provisions of the Declaration order. Accordingly, I hold that the prosecution has failed to establish any case under section 7 of the Act for contravention of clause 3 of the Declaration order: 9. In the result, I hold accused Padma Charan Suain quilty under section 7 of the Essential Commoddities Act read with Claue 3 of the Orissa Rice and Paddy Control Order, 1965 and convict him thereunder. He is found not quilty of violation of clause 3 of the Orissa Declaration of stock and Prices of Essential Commodities order, 1973. Accused Jatindra Kumar Swain is found not guilty under section 7 of the Essential Commodities Act as no contravention of the aforesaid orders has been established against him. Accordingly, he is acquitted. His bail bond stand cancelled. Accused Padma Charan Swain is sentenced to undergo regourous imprisonment for three months and to pay fine of Rs.500/- (Five hundred) in default to Page 5 of 9 suffer a further period of rigourous imprisonment for one month.” 8. Heard Mohammed Faradish, learned Advocate on behalf of the appellant and Mrs. Mohanty, learned Additional Standing Counsel, for the State. 9. The appellant in lieu of his conviction under Section 7 of the Essential Commodities Act, 1955 read with Clause 3 of the Orissa Rice and Paddy Control Order, 1965, had been sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/- in default, to undergo further rigorous imprisonment for one month. 10. Md. Faradish, the learned counsel for the appellant, submitted that in the event, this Court is not inclined to entertain the appeal against the conviction, but a lenient view should be taken against the appellant to grant the benefit of the Probation of Offenders Act. 11. The incident out of which the present case arises pertains to the year 1997, and at that point in time, the appellant was about 50 years of age. Therefore, at present, the appellant is in his late seventies. He has a clean record and was a first-time offender. The appellant has already Page 6 of 9 undergone the ordeal of trial for about three years. The appeal has been pending since 2001. Therefore, at the late evening of the life of the appellant, sending him to custody would not only be harsh but also detrimental to his entire family. 12. The learned counsel further argued that the appellant has 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. 13. Taking into consideration the entire conspectus of the matter, it would be apt to rely on the judgement of the Hon’ble Supreme Court in Tarak Nath Keshari V. State of West Bengal, (2023) SCC OnLine SC 605, in which it was held thus: - Page 7 of 9
Decision
16. Accordingly, the Criminal Appeal is disposed of. The High Court of Orissa, Cuttack Dated the 18th of July, 2025/ Subhasis Mohanty (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Jul-2025 19:16:34 Page 9 of 9