The High Court · 1999
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.114 of 2000 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Dhruba Charan Giri ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant Amicus Curiae : Ms. Rakhi Mishra, For the Respondent : Mr. S.J. Mohanty, Additional Standing Counsel CORAM:
Legal Reasoning
question of sentence, and upon careful consideration of the record, this Court is of the opinion that though the conviction of the appellant under Section 7 of the Essential Commodities Act, 1955 for violation of Section 3 of the said Act read with Clause 7 of the Orissa Kerosene Control Order, 1962 stands upheld on merits, a lenient view deserves to be taken so far as the sentence is concerned. 14. 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, reported in (2023) SCC OnLine SC 605, 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.
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 29.04.2000 passed by the Learned Additional Sessions Judge-cum- Special Judge, Rairangpur, in G.R. Case No. 270 of 1999 (T.C. No. 10 of 1999), convicting the appellant under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the "E.C. Act") for alleged contravention of Section 3 of the said Act read with Clause 7 of the Orissa Kerosene Control Order, 1962. 2. The prosecution case originates from an incident dated 5th August 1999, when Nrusingha Charan Pradhan (P.W.2), then serving as the Marketing Inspector (Enforcement), Rairangpur, received directions from the Sub-Collector, Rairangpur, to proceed to the village Bhatchhatar for inspection. The directive was issued after local villagers had allegedly informed the Additional B.D.O. of Bisoi Block (P.W.3) about large-scale illegal storage of kerosene and terpentine oil inside a Dhaba situated near National Highway No.6. Acting upon this information, a team consisting of the Marketing Inspector (P.W.2), the Assistant Civil Supplies Officer (P.W.4), and other administrative officials, including the Sub-Collector and Tahasildar of Rairangpur, reached the spot around 5:30 PM on the same day. The team entered the said Dhaba, which was alleged to be under the control of the appellant, Dhruba Charan Giri, and conducted a search in the presence of public witnesses and officials. Page 2 of 10 3. During the search operation, the authorities claimed to have recovered a full barrel containing 260 litres of kerosene oil, three plastic jerricans, and a barrel containing 100 litres of terpentine oil, along with one empty barrel. The appellant, who was allegedly present at the Dhaba at the time of seizure, was asked to produce a valid licence or any authorization document for the possession of the seized commodities. Upon his failure to do so, the articles were seized under seizure list marked Ext.1/1, and a zimanama (Ext.3) was prepared for temporary custody. Thereafter, P.W.2 lodged a First Information Report at Bisoi Police Station, which was registered and investigated by Dhiren Chandra Nanda (P.W.6), the Officer-in-Charge. 4. Subsequent to the investigation, a charge-sheet was filed against the appellant for alleged violation of Section 3 of the Essential Commodities Act, 1955 and Clause 7 of the Orissa Kerosene Control Order, 1962, punishable under Section 7 of the Act and the appellant was put to trial. During the trial, six witnesses were examined by the prosecution. Among them, P.Ws.2, 3, and 4, all official witnesses, supported the prosecution’s version regarding the seizure and Page 3 of 10 possession of the articles by the appellant. P.W.1 and P.W.5, who were purported seizure witnesses, did not support the prosecution case and claimed ignorance about the recovery. P.W.5 further stated that his signature was obtained on blank paper. 5. The appellant, when examined under Section 313 Cr.P.C., took the plea of complete denial. He contended that he neither owned nor operated any Dhaba on the spot from where the alleged recovery took place and that he had been falsely implicated by the Marketing Inspector (P.W.2). It was also contended that the seized articles did not belong to him, and no conclusive proof was furnished by the prosecution to establish his ownership or conscious possession over the premises or the articles. 6. The learned trial court held the appellant is guilty under Section 7 of the Essential Commodities Act and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs.500/-, in default to undergo further R.I. for 15 days. Aggrieved by the said judgment and order of conviction dated 29.04.2000 passed by the Page 4 of 10 Additional Sessions Judge-cum-Special Judge, Rairangpur in G.R. Case No.270 of 1999, the present appeal has been filed. 7. The trial Court, after credible analysis, has arrived at the following finding- “The accused has not cited any witness to the effect that he had no Dhaba at the spot on the date of occurrence. On the other hand. P. W.2 has that on 5.8.99 at the direction of the Sub-Collector, Rairangpur he went to the spot alongwith the A.C.S.O., Rairangpur and he seized the articles presence of P. Ws3&4. Further it is seen that the Collector and the Superintendent of Police, Mayurbhanj and Sub-Collector, Rairangpur and Tahasildar were present at the spot and at their direction P.Ws2,3, and 4 had entered into the Dhaba of the accused and they had recovered the seized articles. Hence I am clear that on the date of occurrence there was a Dhaba of the accused at Bhatachhatar. So the plea of the accused is not accepted. Hence I am clear that the accused had stored the seized articles without obtaining any licence from the competent authority and also he was not the authorised dealer of the kerosene oil. Soon his private capacity, without any authority he had stored to sell the kerosene oil and terpentine oil to the public in higher price. Hence the accused is found to have committed the offence U/S 3 E.C.Act.1955 and Clause 7 of Orissa Kerosene control Order, 1962 punishable U/S7 E.C.Act. 10. Heard the convict-Dhruba Charan Giri, Learned advocate for the convict and the Learned Special P.P. on the question of sentence. The Learned Special P.P. Page 5 of 10 contended that since the convict has committed an serious offence by storing huge quantity of Kerosene Oil in his Dhaba un-authorisedly, he may be punished severely. On the other hand the convict and the Learned counsel for the defence contended that the convict is a first offender and no previous conviction has been proved against the convict by the prosecution. Hence a lenient view may be facts and taken against him. Considering circumstances of the case, taking into account of the seized Kerosene oil and terpentine oil I am not inclined to release the convict under the provision of Probation Offenders Act. Hence on conviction I sentenced the convict-Dhruba Charan Giri to undergo R.I.for a period of 3 (three) months and to pay a fine of Rs.500/-(Rupees five hundred) only i.d.to undergo R.I. for a period of 15 (fifteen) days U/S 7 E.C. Act.” the 8. After having found the appellant guilty of the E.C. Act, awarded him to the sentence as mentioned above. The appellant is aggrieved by the same and has preferred the present appeal. 9. The appeal has been pending since 2000. When the matter was called up, none appeared on behalf of the appellant. Therefore, Ms. Rakhi Mishra, Advocate, has been appointed as Amicus Curiae to assist the Court. 10. Heard Ms. Mishra, learned Amicus Curiae for the appellant and Mr. Mohanty, learned Addl. Standing Counsel for the State. Page 6 of 10 11. The learned Amicus Curiae, Ms. Mishra, after arguing the matter on facts and law, chose to confine her submission to the quantum of sentence. It is submitted that the alleged incident dates back to 5th August 1999, and the appellant has since then undergone the rigors of the trial and appeal for more than two and a half decades. The trial concluded in the year 2000, and the appeal has remained pending since then. The long pendency of this matter has, in itself, been an agonizing ordeal for the appellant, who was barely in his 40s at the time of the alleged offence and is now around 70 years of age. 12. The learned Amicus Curiae 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. Page 7 of 10 13. Having heard learned counsel for the appellant at length on the
Decision
12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of Page 8 of 10 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.” 15. 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 1999, 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 the 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 above, I am inclined to grant the benefit of the Probation of Offenders Act so as to suffice the sentence part. 16. 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 Page 9 of 10 Act for a period of six 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 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. 17. This Court acknowledges the effective and meaningful assistance rendered by Ms. Rakhi Mishra, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation. 18. Accordingly, the Criminal Appeal is disposed of. (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: 21-Jul-2025 19:16:34 Page 10 of 10