The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.160 of 1999 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 25th June, 1999 passed by the learned Sessions Judge-cum-Special Judge, Sundargarh in T.R. Case No.21 of 1996 (GR Case No.189 of 1996). Gurucharan Mishra ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.A. Mohanty, (Advocate)
Legal Reasoning
For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 25.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 25th June, 1999 passed by the learned Sessions Judge-cum-Special Judge, Sundargarh in T.R. Case No.21 of 1996 (G.R. Case No.198 of 1996). CRA No.160 of 1999 Page 1 of 7 The Appellant has been convicted for commission of offence under section 7 of the Essential Commodities Act, 1962 (hereinafter referred to as ‘the E.C.Act’) and he has been sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for two month. 2. Prosecution case is that the accused was a Sub-Whole Sale Dealer of Kerosene Oil for the year 1995-96 and he was having licensed shop at Kinjirkela. It is stated that on being asked by the Sub-Collector, Sundargarh, the then Block Development Officer- cum-Executive Magistrate Tangerpali had inspected the shop of the accused on 06.04.1996. On verification of the stock, it was found that he was having shortage of stock in hand to the extent of 400 liters as against the stock at hand as reflected in the register at 600 liters. Since the accused failed to explain the said shortage of Kerosene Oil at hand, information in writing was submitted by the Supply Inspector (P.W.4) with the Officer-in-Charge of Kinjirkela Police Station (P.W.10). The case being registered, on completion of investigation Final Form was submitted placing the accused to face the trial for commission of offence under section 7 of the E.C. Act. CRA No.160 of 1999 Page 2 of 7 3. The Trial Court having examined the evidence on record and on going through the documents admitted on behalf of the prosecution, upon their analysis held the prosecution to have proved its case that at the relevant time of checking, there was stock of only 200 liters of Kerosene Oil with the accused as against the required as per the register at 600 liters and thus a shortage of 400 liters of kerosene oil. With the said finding, the accused has been convicted under section 7 of the E.C. Act and sentenced as afore-stated. 4. Mr. A. Mohanty, learned counsel for the Appellant submitted that the charge framed in the case is wholly defective and it is such that same is not curable for which grave prejudice has been caused to the accused. He, therefore, submitted that the final outcome of the trial on the basis of said charge cannot be sustained. He next submitted that even the evidence on record do not establish the fact beyond reasonable doubt that the accused had acted in violation of the condition of the license in possessing less stock of Kerosene Oil then what he was to possess. 5. Mr. P. Mohanty, learned Additional Standing Counsel while supporting the finding of guilt against the accused as has been returned by the Trial Court submitted that the evidence being clear that the accused was to have 600 liters of kerosene oil CRA No.160 of 1999 Page 3 of 7 in his possession as Sub-Whole Sale Dealer and he was having the stock of less by 400 liters, for such violation of the condition of license, the Trial Court has rightly convicted the accused. 6. Keeping in view the submission made, I have carefully read the impugned judgment of conviction. I have also travelled through the deposition of the witnesses (P.W.1 to P.W.10) and have perused the documents admitted on behalf of the prosecution marked Ext.1 to Ext.9 as also the documents, i.e., the stock register produced and proved from the side of the defence (Ext.A). 7. P.W.4, the Inspector of Supplies having presented the written report with the OIC, Kinjirkela Police Station (P.W.10) vide Ext.B, the case has been registered against the accused and the investigation has commenced. P.W.6 submitted the verification report which was prepared by the Block Development Officer (B.D.O.-P.W.9) during his visit to the Sub- Whole Sale Depot of the Kerosene Oil of the accused. P.W.4 in his report (Ext.3) does not mention as to for said shortage of stock, what was the specific violation at the behest of this accused; either referring to the Control Order or to the relevant condition of the license whose photocopy has been marked as Ext.9. CRA No.160 of 1999 Page 4 of 7 8. The Trial Court by order dated 26.07.1996 has taken cognizance of the offence under section 7 of the E.C. Act and then instead of proceeding to summarily, try the offence by resorting to the procedure prescribed for trial of summon cases has resorted to the trial of the case following the procedure prescribed for trial of warrant cases. Be that as it may, the same has no impact as in case of trial by following procedure for trial of warrant cases, the accused gets wider scope and the question of prejudice does not arise. But here in the case when one looks at the charge framed, first of all it is found that it was so framed on 26.09.1996 wherein the accused was charged for commission of offence under section 7 of the E.C. Act for contravention of Clause 7 and 8 of Orissa Kerosene Control Order, 1962. The same has been recast on 03.09.1998 as it reveals from the charge with one head in the sheet placed on record whereunder the accused was charged for commission of offence under section 7 of the EC Act for violating the condition of his license issued under Kerosene Control Order read with Kerosene (Fixation of Selling Price Order), 1970. Such sheet being there on record, the order sheet of the Trial Court being traced, this Court is not in a position to find out any such order to have been passed to that effect for recasting the charge. CRA No.160 of 1999 Page 5 of 7 In the said recasted charge even nothing is given as to which of the condition of the license has been contravened so that in invites the penal consequence provided under section 7 of the E.C.Act. In such state of affair on record, the charge when said to have been recasted is not supported by any order to that effect being passed and the accused is found to have not been asked to explain the said charge on that day, simply relying on the sheet placed on record; the final outcome of the trial on the basis of the same cannot be sustained. Therefore, the judgment of conviction and order of sentence impugned in this Appeal are liable to set aside. Having said so, when it is found that the incident dates back to 06.04.1996 and there has been lapse of more than 28 years by now, since the accused has also reached his sixties and has undergone mental agony of criminal trial for all these years, as no report is forthcoming as regards his adverse conduct, in my considered opinion, remand of the case for retrial is not warranted as it would not serve the ends of justice and meet its end too. 7. Accordingly, the Appeal is allowed. The judgment of conviction and order of sentence dated 25.06.1999 passed in T.R. CRA No.160 of 1999 Page 6 of 7 Case No.21 of 1996 (G.R. Case No.189 of 1996), are hereby set aside. Since the Appellant, namely, Gurucharan Mishra is on bail, his bail bonds shall stand discharged. (D. Dash), Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 09-Jul-2024 15:42:09 CRA No.160 of 1999 Page 7 of 7