The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.231 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Dulla Kisku ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. S. N. Sahoo, Advocate For the Respondent : Mr. A. K. Apat, AGA CORAM:
Legal Reasoning
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 09.08.1996 passed by the learned Special Court, Mayurbhanj, Baripada in G.R. Case No.23 of 1989/T.C. No.6 of 1990, whereby the learned trial Court has convicted the accused-appellant along with another accused for the offences punishable under Section 7 and 8 of the Essential Commodities Act, 1955 (herein after ‘E.C. Act’ for brevity) and, accordingly, sentenced them to undergo R.I. for three months each. 2. The prosecution has charged the appellant for the alleged commission of the offences under Sections 7 and 8 of the E.C. Act read with the provisions of the Orissa Rice and Paddy Control Order, 1965. 3. The prosecution case in brief and terse is that on 23.02.1989, the house of the appellant was raided by P.W.3, a Vigilance Inspector along with the then authorities from the Supply Department and it was found that a large quantity of rice and paddy have been stored. Two trucks bearing registration Nos.ORB-7037 and ORB-5415 were also detected at the very location. During enquiry, co-accused Shyam Sundar Jena admitted to be the owner of 140 bags of paddy and rice and co-accused Krushna Patra admitted to be the owner of 157 bags of Paddy. Following this, the rice and paddy bags were seized along with the trucks and the documents from the respective drivers. The accused persons faced the trial on the charges as mentioned above. Page 2 of 7 4. The prosecution in order to bring home charges against the accused examined three witnesses. Out of which, P.W.1 was the Supervisor of supplies at Baripada. P.W.2 was the then Inspector of Vigilance, Baripada who subsequently investigated the case. P.W.3, the then Inspector of Vigilance, Baripada was the informant in this case and he initially investigated the case. No independent witness was examined by the prosecution. 5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into consideration the defense plea eventually the learned trial Court arrived at the following conclusion that the accused are guilty of the charges under Sections 7 and 8 of the E.C. Act read with the provisions of the Orissa Rice and Paddy Control Order, 1965. The relevant findings read thus: - “Accused Krushna Patra has admitted that he could not show any permit or license for possessing such a large quantity of paddy at the time of detection. It has been simply suggested to P.W.3 that the said paddy was belonging to one of the relations of accused Krushna Patra. This accused has not examined any witness either to show himself to be cultivator or to show the ownership of the seized paddy belonging to some of his relations. Simply two records of Page 3 of 7 right have been filed (Exts- J and K) recorded in the name of one Asim Kumar Mohapatra of Bansada. There is nothing on record to show that the seized paddy from accused Krushna Patra was belonging to Asim Kumar Mohapatra. On the contrary the evidence of P.Ws. 1 and 3 already shows that the accused Krushna Patra admitted himself to be the owner of 100 quintals, 46 K.Gs. and 500 grammes of paddy seized from the house of Dulla Kisku on 22.2.89. Therefore, accused Krushna Patra and Dulla Kisku are clearly coming within the ambit of Orissa Rice and Paddy Control Order, 1965 and are liable to be punished U/s 7 and 8 of the Essential Commodities Act respectively. So I hold them guilty under the aforesaid sections and convict them thereunder for the vitiation of the Orissa Rice and Paddy Control Order, 1965. ” 6. Aggrieved by the judgment of conviction and order of sentence passed by the learned Special Court, Mayurbhanj, Baripada, the present Appeal has been preferred by the appellant alone. 7. Heard Mr. A. Das, learned Counsel appearing for the appellant and Mr. A.K. Apat, the learned Additional Government Advocate for the State. 8. Mr. Das, learned counsel for the appellant has strenuously argued the case on merit and taken me to the evidence on record in elaboration. After arguing for some time, he submitted that keeping in view the ordeal of procrastinated judicial process undergone by the appellant in this case, he would rather confine his argument to the quantum of Page 4 of 7 sentence. He has submitted that the incident pertains to the year 1989 (23.02.1989). The appellant has undergone the rigors of trial for about seven years and was convicted in the 1996. Thereafter, the appeal was preferred by the present appellant in the year 1996 (26.08.1996). The appeal has been prolonging to be heard for about 29 years. At the time of incident, the appellant was very young at his 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 judgement of Hon’ble Supreme Court in Tarak Nath Keshari V. State of West Bengal1, which is akin to the facts of the present case. It is 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 status, clean antecedents and the fact that the incident had taken place in the year 1989, 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