The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.167 of 1998 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Ramesh Kumar Agarwalla ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. B.N. Tripathy, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the Judgment of conviction and order of sentence dated 18.07.1998 passed by the learned Special Judge, Rairangpur in G.R. Case No.148 of 1992, whereby the appellant has been found guilty of the offence punishable under Section 7 of the Essential Commodities Act. On the said count, he has been sentenced to undergo R.I. for six months and to pay fine of Rs.5,000/- (Rupees five thousand), in default, to further undergo R.I. for one month.
Legal Reasoning
the appellant is also covered by the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2. 2 2012 (Supp-II) OLR 469 Page 10 of 11 16. Taking into consideration the submissions made by Mr. Tripathy, learned counsel for the appellant and the authorities cited above, this Court is inclined to modify the sentence of custody while maintaining the sentence of the imposition of fine of Rs.5,000/- (Rupees five thousand) and extend the benefit of the Probation of Offenders Act. 17. Regarding the sentence of imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on their 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 shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 18.
Arguments
2. Heard Mr. Tripathy, learned counsel for the appellant and Mr. Mohanty, learned Additional Standing Counsel appearing for the Respondent-State. 3. The facts portrayed by the prosecution in terse and brief is that on 15.03.1992 at about 6 A.M., accused Ramesh Kumar Agarwalla was found transporting 90 bags of rice in a Truck bearing Registration No.ORM-2035 being driven by accused Ananta Khilar and another 90 bags in a truck bearing Registration No.OSM-3315 being driven by accused Sudarsan Muduli from Balasore, State of Odisha to the State of Bihar without any valid permit on Tata-Bahalada P.W.D. Road and was caught by S.I. Mr. P.K. Nayak of Tiring Police Station who drew a plain paper F.I.R. at the spot, took up preliminary investigation, seized those two trucks with documents and 180 bags of rice loaded on the same and caused production of the accused persons and seized articles before the O.I.C., Tiring Police Station where after Tiring P.S. Case No.26 of 2992 was registered and investigation was carried out. After completion of the Page 2 of 11 investigation, the charge sheet was filed against the appellant and others for the alleged commission of offences punishable under Sections 7 and 8 of the Essential Commodities Act. 4. In order to establish the case, the prosecution examined as many as four witnesses. P.W.4, the then S.I. of Police attached to Jharadihi Out Post under Tiring Police Station is the Reporting Officer. P.W.1, the then A.S.I. of Police, Tiring Police Station is an eye-witness. P.W.3, a local resident is a witness to the seizure. P.W.2 the then O.I.C. of Tiring Police Station is the Investigating Officer, who has submitted the Charge Sheet. The defence has also examined six witnesses out of whom D.W.1 is the accused Ramesh Kumar Agarwalla himself D.W.2, C.S.O., Sambalpur is a witness to the issuance of permit to transport rice, D.W.3 and D.W.6, two Clerks of supplying agencies are witnesses to supply of rice, D.W.4 a villager of Nimdihi is a witness to loading of rice from damaged trucks to the seized trucks and D.W.5 is the proprietor of the farm to which the seized rice was consigned. 5. Learned Trial Court, by threadbare analysing the evidence of the prosecution as well as the defence, has arrived at the following finding: Page 3 of 11 “6. F.I.R. story is that on 15.3.92 at about 6 A.m. near village Nimdihi on Bihar-Orissa border, on Bahalda-Tata P.W.D.. road accused Ramesh Agarwalla was transporting 180 bags of Orua and Ushna (boiled and raw) rice in truck Nos ORM 2035 and OSM 3315 each loaded with 90 bags from Balasore to Jamshedpur without valid permit, and after, detection of this crime the informant, S.I. of Jharadihi Out Post under Tiring P.S. made seizure of the trucks with the loaded rice bags when on demand no permit for transportation was produced. This F.I.R. story has been echoed by the informant, P.W.4 in his evidence with addition that accused Ramesh did not disclose the name of person from whom he had purchased that rice, with the accused persons and the seized trucks and rice, seized under Exts. 1 and 2 he approached 0.I.C, Tiring P.S. and submitted his written report Ext.3 before him and arranged weighment of the seized rice which came to 163 quintals as per weighment sheet Ext.6. on deduction and seizure his evidence has received corroboration from that of P.W.1 and 3 and on lodging of F.I,R, from that of P.W.2. There is little to discredit the testimony of any of these 4P.Ws. However, it is not required to spend more line on the evidence of the P.Ws when seizure of truck nos ORM 2035 & OSM 3315 each loaded with 90bags of rice on Orissa-Bihar boarder while transportation same from Orissa to Bihar at about 6 A.M. on 15.3.92 by the Accd. Ananta with the help of the other two accused persons, drivers of these trucks by P.W.4 has been admitted by the defence. From the office of C.S.O. Sambalpur the issuance of Ext.A, Permit No.222 dated 11.3.92 for transportation of 89.10 quintals of rice from Mill head of Arun Trading Co, Sambalpur to Singbhum, Bihar by road with valid of from 11.3.92 to 14.3.92 and Ext. B, another permit No.231 dated 12.3.92 for transportation of same quantity of rice from Mill Head Mittal Rice Mills Pvt. Ltd. Baijamuda of Sambalpur to Singbhum, Bihar by road with valid it from 12.3.92 to 15.3.92 has been breathed by D.W.2 C.S.O., Sambalpur. But it is not to be taken that the seized rice was covered under those two seized permits, one of which was only valid on the relevant date, when those permits were silent on validity of transportation of rice, on weighment vide Ext.6 seized rice came to less than the rice covered under those permits, against defence suggestion to P.W.4 that accused Ramesh was carrying rice in the seized Page 4 of 11 trucks by re-loading at Nimdihi because of break down of the truck bearing registration no. 0S-15-A/1755 which was carrying entire 180 bags of rice as per permit it is the contradicting evidence of accused Ramesh examined as D.W.1 that in two trucks carrying 90 bags each he was transporting rice from Sambalpur to Tata which went out of order near Nimdihi simultaneously whereafter hiring the two seized trucks he re-loaded the rice in those trucks for transportation and of D.W.4 that both the trucks had capsized near his village Nimdihi abnormally truck OR-15-A/1755 despatched from Mill head at 7.50 P.M. on 11.3.92 and truck No. MOT 8948 from Moll head at 7.45 A.M. on 12.3.92 reached village Nimdihi at the same time on the night of 14.3.92 covering less than 400 K.M. and it is in the evidence of P.W.4 that after seizure of Cash memos in respect of the consigned rice on 15.3.92 at 3.45 P.M. near Dalima vide Ext.7 he proceeded to Nimdihi but did not find truck numbers OR-A 1755 and MOT 8948 which were expected there as per claim of P.W.4 that the defendants of these two trucks which met with the accident guarded their respective trucks. In view of above observation evidence of D.W.3 and 6 on issuance of cash memos Ext. C and D in respect of the consigned rice and evidence on consignment of rice of D.W.5 proprietor of the farm to which the seized rice was consigned and of which accused was the representative is not that material in this case.” 6. Aggrieved by the aforementioned finding culminated into the conviction of the appellant under Sections 7 and 8 of the Essential Commodities Act and the sentence in order of that count, the appellant has filed the present appeal. 7. Mr. Tripathy, learned counsel appearing for the appellant has contended that the entire case of the prosecution is an outcome of the Page 5 of 11 concoction and fabrication and without the support of any material evidence. He further submitted that the learned trial Court has completely failed to take into account the defence evidence recorded on the defence of the appellant. The appellant has examined D.W.2, who was the Civil Supplies Officer of Sambalpur. D.W.3 and D.W.6 were the Clerks of the supplying agency. In fact, the defence witnesses have deposed before the Court in their official capacity. Therefore, brushing aside the evidence of the defence witnesses and convicting the appellant is unsustainable. 8. The prosecution could not bring home the cogent, convincing and un-impeccable evidence to establish its case beyond all reasonable doubt. If the defence evidence could have been appreciated in the right prospective, the story of the prosecution would definitely be concluded to be a tainted story. However, ignoring the evidence adduced by the defence and by relying upon the story of P.W.4, the learned trial Court went on to record the conviction against the appellant. 9. Mr. Tripathy, learned counsel for the appellant further submitted that the entire allegation of the prosecution that the appellant, with the Page 6 of 11 help of the truck driver, Ananta and Sudarsan Muduli was attempting to transport rice from the State of Orissa to the State of Bihar without there being any permit falsifies from the fact that the appellant could bring on record two valid permits issued by the Civil Supplies Department, which were exhibited as Ext.A and Ext.B. Ignorance of such documentary evidence became fatal to the defence. Hence, he submitted that the appellant is entitled to an acquittal of all the charges. 10. I have carefully gone through the evidence brought on record and the arguments advanced by Mr. Tripathy, learned counsel for the appellant and Mr. Mohanty, learned Additional Standing Counsel appearing on behalf of the Respondent-State. 11. Learned trial Court has aptly appreciated the evidence brought on record and arrived at the conclusion at para-6 as reproduced above. No doubt, the defence, through the evidence of D.W.2, the Civil Supplies Officer, Sambalpur, has brought on record two permits being Ext.A and Ext.B on record. However, perusal of those two permits reveals that the first permit was valid up till 14.03.1992 whereas the appellant was apprehended transporting rice on 15.03.1992. Even the Page 7 of 11 permits were granted by the Civil Supplies Department to transport the rice from Sambalpur to Singhbhum, Bihar. The destination, the validity and the mode of transport everything is different from the seizure of the rice on the basis of which the prosecution has built up its case. 12. Learned trial Court has very carefully dissected the story put- forth by the defence through the evidence from that of the prosecution version. The findings recorded by the learned trial Court as reproduced above, is unimpeachable and an outcome of the appropriate appreciation of the evidence. 13. This Court is in complete agreement with the learned trial Court in so far as the reasoning recorded by the learned trial Court while appreciating the evidence of both prosecution and the defence, therefore, not inclined to interfere with the conviction recorded thereon. At this stage, Mr. Tripathy, learned counsel for the appellant submitted that, if this Court is not inclined to interfere with the conviction against the appellant recorded by the learned trial Court, the benefit of Probation of Offenders Act may be extended in favour of the appellant. Mr. Tripathy, learned counsel submitted that at the time of the incident, i.e. in the year Page 8 of 11 1989, the appellant was 27 years of age. Therefore, the appellant is around 60 years of age by now. 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. Hence, he submitted that the benefit of the Probation of Offenders Act may be extended in his favour. 14. Taking into consideration the entire conspectus of the matter, it would be apt to rely on the judgment 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: - 1 2023 SCC OnLine SC 605 Page 9 of 11 if there is minimum sentence provided “11. Even 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. 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.” 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 1989, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. Additionally, the case of
Decision
With the above observation, the CRA is accordingly disposed of. The High Court of Orissa, Cuttack Dated the 18th of July, 2025. Subhasis Mohanty (S.S. Mishra) Judge 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 11 of 11