The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.82 of 1998 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Kumar Swamy Kilaka ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Subhashree Sen, Amicus Curiae
Legal Reasoning
For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The sole appellant in the present Criminal Appeal has assailed the Judgment of conviction and order of sentence dated 04.04.1998 passed by the learned District Judge-cum-Special Judge, Ganjam-Gajapati, Berhampur in 2(c) C.C. No.2/1997, thereby convicting the appellant for the offence punishable under Section 7(1)(a) of the Essential Commodities Act and accordingly, sentenced him to pay fine of Rs.500/- (Rupees five hundred), in default, to undergo S.I. for a period of fifteen days. 2. The appeal is pending since 1998. Nobody has been appearing in this matter since last two hearings and when the matter is taken up today, none has appeared for the appellant. Therefore, I appoint Ms. Subhashree Sen, Advocate, Enrollment No.622 of 2016, who is present in Court as Amicus Curiae to assist the Court in the matter. She has readily accepted the same and very effectively rendered her assistance. 3. Heard Mr. S.J. Mohanty, learned Additional Standing Counsel appearing on behalf of the Respondent-State. 4. The prosecution case in terse and brief is that the appellant was the proprietor of M/s. Janaki Gas. On 10.08.1996 at about 10.30 A.M., P.Ws. 1, 2 & 3 inspected the establishment of the appellant and discovered that the price and stock display board and stock of the filled gas cylinder was shown as “NIL”. On verification, it was found that four numbers of filled gas cylinders were available in the go-down. However, in the register maintained by the appellant, five numbers of filled gas Page 2 of 9 cylinders were shown in the stock as against four numbers of available gas cylinders. Therefore, the prosecution report was prepared against the appellant for violation of the Clauses-7, 8 and 9 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 (hereinafter referred to as “Order, 1993”). Accordingly, the appellant was charged for commission of the offence under Section 7 of the Essential Commodities Act and subjected to trial. 5. The prosecution examined three witnesses. P.W.1 was the then Sub-Collector, Berhampur. P.Ws.2 and 3 were the officials of Supply Department. The appellant also examined three witnesses on his defence. 6. The appellant took a stand that the authorities have inspected his premises on 10.08.1996 at about 10.30 A.M. wherein four numbers of filled gas cylinders were there in the go-down. But the stock position in the Stock Register dated 08.08.1996 was showing six numbers of filled gas cylinders available. The appellant took a stance that out of six numbers of filled gas cylinders, one was a display in the show room and one was sold on 09.08.1996 in the late hours. Due to the illness of the Manager (D.W.3), he could not make the entry in the register on that Page 3 of 9 day. Before the entry could be made in the stock register on 10.08.1996 in the morning, the inspection was carried out. He further stated that the allegation of the prosecution that in the display board, the cylinder stock are shown as “NIL” is a misconception and a concocted story. 7. Learned trial Court dealt with the evidence of the prosecution as well as the defence and arrived at a conclusion that non-maintaining of the Stock Register is not believable. Therefore, the appellant was acquitted of the allegation of violation of Clause-8 & 9 of the Order, 1993. However, the trial Court found the appellant guilty of violation of Clause-7 of the Regulation Order, 1993. On the basis of the evidence on record, the learned trial Court arrived at a conclusion that the stock and price display board fixed to the wall was not detachable, which is required under Clause-7 of the Regulation Order, 1993. Hence, the appellant is guilty for the offence under Section 7 (1)(a) of the Essential Commodities Act for having violated Clause-7 of the Order, 1993. Relevant would be to reproduce paragraph-7 of the impugned judgment which records the finding regarding the guilt of the appellant which reads thus: Page 4 of 9 “7. The next allegation of the prosecution is that there was a stock and Price Display Board fixed to the wall and because it was not detachable, they prepared its extract, Ext.2. The defence evidence is that the Price and Stock Board is detachable, but it was deliberately not produced by the prosecution, as it would have gone against their case. It was also said by the defence witnesses that the writings in the board was in the chalk and the officers misread it and prepared a fake extract. Ext.2 shows that a detail extract of the board was prepared. In this document the stock of other articles, telephone number, weekly holidays, working hour etc. have all been described and it has not only been signed by the officials, but also by the accused. The manner in which the signature of the accused is available on this Ext.2, one can never infer that his signature was taken on blank paper and the extract was prepared later on. So, this document appears to be genuine and the entries appears to be the true copy of the entries in the Price and Stock Board. The prosecution claim is that the Board was not detachable from the wall and so the board was not produced. When the defence claimed that the board is detachable, they could have produced the same in the court to disprove the plea of the prosecution. Under such condition, the ratio of the case of State of Orissa vrs. K. Jagannath Senapati, reported in 1983 C.L.T. (S.N.)-99 is not applicable to the present case. Admittedly, there were five Gas cylinders in the stock, but the stock position was not correctly displayed on the Price and Stock Board. The accused is, therefore, guilty of violation of Clause 7 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution), Order 1993.” 8. On the basis of the aforementioned findings, the learned trial Court while recording the conviction under Section 7(1)(a) of the Essential Commodities Act, the appellant has been sentenced to pay fine Page 5 of 9 of Rs.500/- (Rupees five hundred), in default, to undergo S.I. of fifteen days. 9. Learned Amicus Curiae and the learned counsel for the State have extensively read out the evidence of the prosecution, the defence and exhibited documents. Learned Amicus Curiae has contended that the plea taken by the appellant to explain the default through the defence witnesses has not been appreciated by the learned trial Court. The learned trial Court has simply brushed aside those evidence, therefore, the conviction recorded against the appellants is not substantive. 10. In contrast, the learned State counsel submitted that three witnesses are the official witnesses and their testimonies are unshaken and unimpeachable. P.W.1, being the Sub-Collector of the area, has deposed against the appellant and his testimony is being supported by P.Ws. 2 and 3. There is no scope to disbelieve these responsible officers those who have conducted the inspection and found the discrepancy in the Stock Register and the Display Board. 11. I have carefully gone through the evidence led by both the parties and analysed the judgment of the learned trial Court. The Page 6 of 9 conviction of the appellant for the offence under Section 7 of the Essential Commodities Act is only because of the alleged violation of Clause-7 of the Regulation Order, 1993. 12. It is admitted on record by the prosecution witnesses that there was a Stock and Display Board. However, the learned trial Court found that the Display Board was showing “NIL stock” and the display was also not detachable. To establish the same, the extract of the Board was exhibited as Ext.2. There was no photograph or any other kind of evidence produced before the Court to establish that in the Display Board, stock was shown as NIL. The learned trial Court drew an inference that since the Display Board was not produced before the Court, therefore, it is obvious that the Display Board was not attached to the premises nor it was detachable. 13. Clause-7 of the Regulation Order, 1993 requires the Distributor to display a Board indicating the opening balance of the stock etc. Clause-7 is not mandated either to have a attached Display Board or a detachable Display Board from the premises. From the evidence of P.Ws., it has come on record that there was a Display Board in the Page 7 of 9 premises. However, the learned trial Court drew an inference that the Board was attached to the premises, hence came to the conclusion that since the Board was not detachable, the appellant has violated Clause-7 of the Regulation Order, 1993 and found the appellant guilty. 14. I have perused the Regulation Order, 1993. Clause-7, in fact, requires a Distributor to have a Display Board. However, it is not provided that the Display Board should be detachable one. Therefore, the findings recorded by the learned trial Court is completely perverse and a culmination of misreading of Clause-7 of the Regulation Order, 1993 and the evidence on record in that regard. Hence, the finding recorded in paragraph-7 as reproduced above in the impugned judgment is not sustainable under law.
Decision
15. In that view of the matter, the impugned order is liable to be set aside and the appellant is entitled to acquittal. 16. The appellant is acquitted from all the charges and the bail bond stands discharged. 17. This Court records appreciation for the effective and meaningful assistance rendered by Ms. Subhashree Sen, learned Amicus Curiae. She Page 8 of 9 is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid. 18. The Criminal Appeal stands allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th of July, 2025. Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2025 18:55:59 Page 9 of 9