The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.42 of 2001 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 2nd February, 2001 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.17/12 of 1994/92 Maheswar Panda …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. Bikram Pratap Das (Advocate) For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 01.07.2024 : Date of Judgment : 03.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 2nd February, 2001 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.17/12 of 1994/92. The Appellant having faced the trial for commission of offence under section 3 (2)(i) read with section 7 of the Essential CRA No.42 of 2001 Page 1 of 6 Commodities Act, 1955 (hereinafter referred to as ‘the E.C.Act’) and accordingly, he has been sentenced simple imprisonment for one year and pay fine of Rs.5,00/- in default to undergo simple imprisonment for three months. 2. Prosecution case is that on getting reliable information on 30.03.1990 in between 9 a.m. to 3 p.m., the P.W.2, the Inspector of Vigilance along with the P.W.1, the Supervisor of Food and Civil Supplies Department conducted surprise check of the business premises of Maheswar Panda, Proprietor of M/s.Tarini Store, who is carrying on business and dealer in controlled commodities. It is stated that at the time of search, the said dealer failed to produce the books of accounts except a sale register of different Commodities from 11.03.1990 to 28.03.1990. It was also found that he was keeping notes about sale of Controlled Commodities, names of the Consumers and Card Number etc. on a plain paper without obtaining any signature. A Board showing stock position of the controlled commodities was there in the shop on 28.03.1990. On physical check, stock of 3.85 kg 500 grams of Sugar, 6.87 kgs of Wheat, 8 tins of Palmolein Oil weighing 15 kgs each and loose tins containing 13 kg 50 grams and Kerosene Oil 30 liters were found. In course of the check, the nephew of the dealer, produced the tally register, sugar stock register, wheat stock register, rice, Atta and Palmolein oil stock register. It is said CRA No.42 of 2001 Page 2 of 6 that on going through the register, it was found that the stock register in respect of sugar, wheat and Palmolein were maintained for certain period. But he did not produce the Kerosene Oil stock register. It is alleged that dealer-Maheswar Panda could not explain the stock position at the time of check. So the stock of commodities, price board and books of accounts, tally register were seized. In view of that, the prosecution report was submitted against the Appellant to face the trial for commission of offence under sections 7 and 9 of the E.C. Act for violation of Kerosene Control Order, 1962, Orissa Wheat & Wheat Products Control Order, 1955 & Orissa Pulses, Edible Oil Dealer’s Licensing Order, 1977. 3. The Trial Court having gone through the evidence of P.W.1 and P.W.2 and relying upon the seizure list has held the Appellant to have acted in contravention of the aforesaid clauses of the Orders and thereby to have committed the offence under section 3(2)(i) of the E.C. Act 4. Mr. B.P. Das, learned counsel for the Appellant at the beginning submitted that the trial stands vitiated for non- compliance of the provision contained in section 251 read with section 261 of the Code of Criminal Procedure, 1973. In support of his submission, he has invited the attention of the Court to the CRA No.42 of 2001 Page 3 of 6 order dated 17.12.1999 passed by the Trial Court. He submitted that non-compliance of the aforesaid mandatory provision of law would be crystal clear when the order of the Trial Court is read and, therefore, when the prejudice to the accused is writ at large, the accused is entitled to be acquitted as the entire trial stands vitiated. 5. Learned counsel for the State refuting the above submission submitted that the relevant order dated 17.12.1999 would reveal that there has been substantial compliance of the said provisions of law and the matter should not be viewed from such a technical angle. 6. Keeping in view the submissions made, I have carefully read the order dated 17.12.1999 which is placed by the learned counsel for the Appellant in support of his submission as regards non-compliance of the provision contained in section 251 read with section 261 of the Code of Criminal Procedure. 7. The Special Court in the case at hand while holding the summary trial was ordained under the law to follow the procedures prescribed for trial of the summon cases. Section 251 of the Code mandates that in a summon-case when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused of shall be stated to him and then CRA No.42 of 2001 Page 4 of 6 he shall be asked as to whether he pleads guilty or has any defence to make, when it shall not be necessary to frame a charge. Keeping the provision in the backdrop, the relevant order dated - 17.12.1999 being gone through, it is found that the learned Trial Court while proceeding to comply the provision contained in section 251 of the Code has indicated as follows:- “substance of accusation against the accused is explained to the representing lawyer to which he pleads not guilty and claims trial” The order does not reflect as to what are the offences of whose particulars, the accused was explained of and that too even without indicating/stating the statutory provision and the allegations levelled against the accused. This order, according to my view, is not the one as required for compliance of the provision contained in section 251 of the Code. 8. In that view of the matter, the prejudice to the accused being writ large as he has been misled in the trial, the trial stands vitiated and, therefore, the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 9. In the result, the Appeal is allowed. The impugned judgment of conviction and order sentence dated 02.02.2001 passed by the learned Special Judge (Vigilance), Bhubaneswar are hereby set aside. CRA No.42 of 2001 Page 5 of 6 Since the Appellant (accused), namely, Maheswar Panda is on bail, his bail bonds shall stand discharged. Himansu (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 09-Jul-2024 15:44:18 CRA No.42 of 2001 Page 6 of 6