The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.28 of 2000 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Rajkishore Ram and Another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Abhas Mohanty, Amicus Curiae For the Respondent : Mr. Raj Bhusan Dash, ASC CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 31.07.2025 : Date of Judgment: 19.08.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374(2) of the Cr.P.C., is directed against the judgment and order dated 17.01.2000 passed by the learned Special Judge, Rairangpur, Mayurbhanj in G.R. Case No.195 of 1998(T.C. No.9 of 1998), whereby the learned trial Court has convicted the accused-appellants for the contravention of the Orissa Kerosene Control Order, 1962 which is an offence punishable under Section 7 of the Essential Commodities Act, 1955 (hereinafter ‘E.C. Act’ for brevity) and, accordingly, sentenced them to undergo R.I. for one year besides fine of Rs.500/-, in default, to further undergo R.I. for one month each. 2. When the matter was taken up for hearing on 31.07.2025, Mr. Dash, learned Additional Standing Counsel for the State has submitted a report that he has received instruction from the I.I.C., Rairangpur Town P.S., which indicates that the appellant No.1-Rajkishore Ram has died since 23.05.2019. Accordingly, the present appeal qua the appellant No.1 stands abated. Hence, the appeal is considered only in respect of appellant No.2-Jaya Prakash Ram. 3. As per the plain paper F.I.R. (Ext.3) lodged by the O.I.C., Badampahad P.S. (P.W.2), on 07.06.1998, while patrolling with Constable P.C. Sahu, he found the accused persons selling Kerosene Oil illegally near Badampahad P.H.D. pump house No.1. Upon inquiry, the accused failed to produce any valid licence. One Murali Ho confirmed purchasing 2.5 litres of Kerosene at Rs.10 per litre, while the actual price Page 2 of 9 was Rs.3.50. The O.I.C. seized a total of 200 litres of Kerosene oil along with measuring instruments and containers from the possession of the accused. A requisition to the Marketing Inspector confirmed that no kerosene had been officially issued to them. Finding violation of the Orissa Kerosene Control Order, 1962, a case was registered, and after investigation, charge sheet was filed under Section 7 of the E.C. Act. 4. The prosecution in order to bring home charges examined seven witnesses. P.W.2 made the seizure, P.Ws.1, 3 & 4 were present at the time of the seizure, P.W.6 has submitted the charge-sheet and P.W.7 was the then Marketing Inspector. 5. The learned trial Court analysed the evidence on record in detail and returned the following findings:- “7. P.W.2 who was the O.I.C. of Badampahad P.S. has stated that on 7.6.98 while he was patrolling at about 12 noon he found the accused persons were selling Kerosene oil at Dhangidimata weekly market near Badampahad P.H.D. Pump house and the spot was on the western side of the P.H.D. Pump house not Badampahad. On his demand the accused persons failed to show him any authority about the selling of Kerosene Oil. Thereafter, he seized 4 tins; each containing 20 Lts of Kerosene Oil, 2 empty tins, one 500ml. litre measure, one 200ml litre measure and one tin funnel from accused Jayaprakash Ram vide Ext. 1. Ext.1/3 is the signature of accused. Jayaprakash Ram on Ext.1. Further he has stated that he seized at the same time 6 tins Page 3 of 9 each containing 20 Lts of Kerosene oil, 2 empty tins, one 500ml litre measure one 200 ml. litre measure and one funnel from the possession of accused Raj Kishore Ram vide Ext.2. Ext.2/2 is his signature and Ext.2/3 is the signature of accused Raj Kishore Ram. He knows the signatures of the accused persons. After preparation of the seizure lists, he gave the copies of the seizure list to the accused persons respectively. One Murali Ho told him that he had purchased one litre of Kerosene oil from accused Raj Kishore Ram @ Rs.5/-. While he was at the spot, B.D.O., Kusumi Block reached at the spot. In cross-examination he has stated that in his F.I.R, he has not mentioned that Murali Ho had purchased Kerosene oil from the accused persons. He had prepared the spot map and there was no shop near the spot. However, from the evidence of P.W.2 I come to the conclusion that he had seized Kerosene oil and other articles from the accused persons vide Ext.1 and 2 respectively and accordingly the accused persons have signed on the seizure lists vide Ext.1/3 and 2/3 respectively. If there was no seizure of the articles, then why the accused Jayaprakash Ram had signed on the seizure list Ext.1. So also accused Raj Kishore Ram in the seizure list Ext.2. When they have signed in the seizure lists, I am clear that P.W.2 had seized the Kerosene Oil and the other articles from the respective accused persons……” 6. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defence plea eventually the learned trial Court recorded the guilt of the appellants by concluding as under:- “10. From my above discussions and observations, I come to the conclusion that the accused persons were selling Kerosene Oil by contravening the Orissa Kerosene Control Order, 1962 and are found guilty U/s.7 E.C. Act. Hence I Page 4 of 9 found the accused persons guilty U/s.7 E.C. Act and accordingly I convict them U/s.248(2) Cr.P.C. thereunder.” 7. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Special Judge, Rairangpur, Mayurbhanj, the present Appeal has been preferred by the appellant No.2. 8. Heard Mr. Abhash Mohanty, learned Amicus Curiae appearing for the appellant No.2 and Mr. Raj Bhusan Dash, the learned Additional Standing Counsel for the State. 9. Mr. Mohanty, learned Amicus Curiae for the appellant No.2 has strenuously argued the case on merit 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 appellant in this case and the ordeal of trial faced by the appellant No.2, he would confine his argument to the quantum of sentence rather than questioning the conviction on merit. He has submitted that the incident had taken place in the year 1998 (07.06.1998). The appellant No.2 has undergone the rigors of trial for about two years. Thereafter, the appeal was preferred in Page 5 of 9 the year 2000 (29.01.2000). The appeal has been prolonging to be heard for about 25 years. At the time of incident, the appellant No.2 was very young at his mid-thirties. At present he is in his late fifties and leading a respectful life along with his family. The learned Amicus Curiae further submitted that the appellant No.2 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. Therefore, in the fitness of situation, the appellant No.2 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 judgment of the Hon’ble Supreme Court in Page 6 of 9 the case of Tarak Nath Keshari V. State of West Bengal1 , in which it was held thus: - “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.
Decision
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 No.2, his societal position, clean antecedents and the fact that the incident had taken place in the year 1998, 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 No.2 is also covered by ratio of the judgment of this Court in 1 2023 SCC OnLine SC 605 Page 7 of 9 the 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 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. 13. With the above observation, the CRA is accordingly disposed of. 14. This Court records appreciation for the effective and meaningful assistance rendered by Mr. Abhas Mohanty, learned Amicus Curiae. He 2 2012 (Supp-II) OLR 469 Page 8 of 9 is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 19th August, 2025/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2025 15:18:50 Page 9 of 9