The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.60 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Harekrishna Patel ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Md. Faradish, Advocate
Legal Reasoning
For the Respondent : Mr. A. K. Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of the Cr. P.C., is directed against the judgment and order dated 12.02.1996 passed by the learned Sessions Judge-cum- Special Judge, Bolangir in 2(c)C.C No.1 of 1994/T.R. No.4 of 1994, whereby the learned trial Court has convicted the accused-appellant for the offences punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter ‘E.C. Act’ for brevity) and, accordingly, sentenced him to undergo R.I. for three months besides fine of Rs.500/-, in default, to further undergo R.I. for one month. 2. The prosecution case in brief and terse is that on 27.08.1993 at about 5.15 P.M., P.W.1 the then Marketing Officer and P.W.3, the then A.C.S.O. along with other supply staff of Bolangir when checked the grocery shop of the appellant located at Jagannathpada of Bolangir town, they found that the appellant was dealing with Kerosene oil. On further verification, it was found that he had stored 14 containers of Kerosene oil in his shop. On weighing, it was about 200 liters of Kerosene Oil. However, on demand of the authorities to store such quantity of Kerosene, the appellant failed to produce any license or any other relevant documents in support of his dealing with such commodity namely Kerosene oil and hence the appellant was charged for the alleged commission of the offence under the E.C. Act. 3. The prosecution in order to bring home charges examined three witnesses. P.W.1 was the then Marketing officer. P.W.2 was an Page 2 of 7 independent witness, who was claimed to be present at the place of occurrence and P.W.3 was the then A.S.C.O (an official of the Supply Department). 4. The learned trial Court analysed the evidence on record in detail and returned the following findings:- “P.W. who has submitted the P.B. has supported his own case as to the fact of checking and seizure of 14 tins of kerosene oil from the grocery shop of the accused. His evidence is amply supported and corroborated by P.W.3 the then A.C.S.O. True, the only independent witness examined by the prosecution has not supported the case of the prosecution but it is observed in a case law reported in (1989) 2 OCR at page 206 (Madhusudan Mahapatra vrs. State of Orissa) which is a case u/s 7 of the E.C. Act for violation of clause-8 of the Orissa Kerosene Control Order, 1962 that a seizure can be established by the sole evidence of officer affecting the seizure. The evidence of the investigating officer affecting the seizure convincing – such evidence is not to be rejected because the witness to the seizure do not support the prosecution version. This being the proposition of law when the evidence of P.Ws.1 and 3 their cross- are not shaken examination even if P.W.2 the independent witness has not supported the case of the prosecution there is no reason to disbelieve the seizure of 14 tins of Kerosine oil from the grocery shop of the accused.” in any manner during 5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually Page 3 of 7 the learned trial Court recorded the guilt of the appellant by concluding as under: “Admittedly the accused has neither any license nor has any valid document in support of his dealing with the kerosene oil Therefore, the accused has contravened Clause-8 read with S.R.O. No.264/88 of the Orissa Kerosene Control Order, 1962 Therefore, he is liable for conviction u/s 7(1)(a)(ii) of the Essential Commodities Act. ” 6. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Sessions Judge-cum-Special Judge, Bolangir, the present Appeal has been preferred by the appellant. 7. Heard Mr. Faradish, learned Counsel appearing for the appellant and Mr. A.K. Apat, the learned Additional Government Advocate for the State. 8. Mr. Faradish, learned counsel for the appellant 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, he would rather confine his argument to the quantum of sentence rather than questioning the conviction on merit. He has submitted that the incident had taken place Page 4 of 7 in the year 1993 (27.8.1993). The appellant has undergone the rigors of trial for about three years. Thereafter, the appeal was preferred in the year 1996 (26.2.1996). The appeal has been prolonging to be heard for about 29 years. At the time of incident, the appellant was very young at his late twenties. At present he is in his late fifties and leading a respectful life along with his family. The learned Counsel further submitted 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. Therefore, in the fitness of situation, the appellant may be extended the benefit of Probation of Offenders Act read with Section 360 Cr. P.C. Page 5 of 7 9. 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 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.” 10. Besides the Judgment quoted above, regard being had to the age of the appellant, his societal position, clean antecedents and the fact that the incident had taken place in the year 1993, I am of the considered view that the appellant 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 1 2023 SCC OnLine SC 605 Page 6 of 7 also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2. 11. 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 three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) 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 three months. 12. 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/ Subhasis Mohanty 2 2012 (Supp-II) OLR 469 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 7 of 7