The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.158 of 2000 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Amar Kumar Patra ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Ms. Soma Nanda, Amicus Curiae 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 arising out of the Judgment of conviction and order of sentence dated 29.06.2000 passed by the learned 1st Additional Sessions Judge-cum-Special Judge under the Essential Commodities Act, Berhampur in 2(c) C.C. No.1 of 93/T.R. No.18 of 96, whereby the learned Court below finding the appellant guilty of the offence punishable under Section 7(1)(a)(i) of the Essential Commodities Act has sentenced him to undergo Rigorous Imprisonment for three months and to pay fine of Rs.500/- (Rupees five hundred), in default, to further undergo Rigorous Imprisonment for another fifteen days. 2. This appeal was preferred by the appellant on 17.07.2000 and since then, the appeal is pending. When the matter was called for
Legal Reasoning
8. Under the above evidence, and the position of law, I find the accused guilty of not maintaining the stock and sales registers properly with malafide intention to make foul play with the kerosene oil with a culpable mentality.” 7. The appellant is aggrieved by the aforementioned finding resulted in the conviction and sentence and has filed the present appeal. 8. Ms. Nanda, learned Amicus Curiae appearing on behalf of the appellant submitted that the evidence of the prosecution witnesses are not trustworthy and being contradictory to each other is not reliable. He further submitted that the license granted to the appellant to deal with the kerosene oil was suspended by the Assistant Civil Supplies Officer during the intervening time. Therefore, there was no occasion for the appellant to have the possession of the kerosene oil as stated by P.W.8. It is also contended by the learned Amicus Curiae that at the time of the alleged incident, the appellant was about 36 years of age. The incident had taken place in the year 1990. 35 years has already elapsed in Page 5 of 11 between. At present, the appellant is in his late seventies. There is no record of any other offences, which suggests that the appellant has a clean antecedent. In that view of the matter, the learned Amicus Curiae submitted that in the event, this court declined to allow the appeal, at- least the appellant should be extended the benefit of the Probation of Offenders Act. 9. Learned counsel for the State, on the other hand, has read out the evidence of the witnesses in extenso and submitted that the unshaken testimony of all the witnesses, if read conjointly, the conclusion drawn by the learned trial Court is justified and no interference is called for. 10. I have carefully gone through the trial court records and also taken into consideration the contention of learned counsel for both the parties. It is evident from the record that on 09.04.1990, the Inspector of Supplies, the Assistant Civil Supplies Officer along with the Supervisor of the District Civil Supplies Office visited the premises of the appellant, who was the kerosene oil sub-wholesale dealer operating from Santoshpur in the district of Ganjam to verify the stock of accounts of the kerosene oil. On their visit, they found that, there was only five Page 6 of 11 numbers of empty barrels lying in the wholesale shop. Therefore, they immediately rushed to the residence of the appellant to verify the books of accounts. The appellant produced the Stock and Sale Register of the kerosene oil maintained from 01.04.1990. On verification of the stock Register, it was found that there was balance of 400 litres of kerosene oil as on 07.04.1990 closing, but they physically found no stock of kerosene oil at his depot at Santoshpur except five numbers of empty barrels. Therefore, there was shortage of 400 litres of kerosene oil at the depot. Necessary seizure was made and further verification was done. Eventually, it was found that the appellant has pilferaged 26,600 litres of kerosene oil. 11. P.Ws.8 and 9 have unequivocally deposed the aforementioned facts and the independent six retailers have also stated that they have not received any kerosene stock from the appellant. In so far as seizure of five empty barrels is concerned, P.W.5 has proved the same. All the witnesses have sustained extensive and elaborate cross-examination. But nothing could be elucidated to create a doubt on the prosecution version. Page 7 of 11 Hence, the learned trial Court has rightly recorded the finding as reproduced. 12. I am in complete agreement with the findings of the learned trial Court that the prosecution has proved its case beyond all reasonable doubt. Hence, the conviction recorded by the learned trial Court against the appellant on the charge under Section 7(1)(a)(i) of the E.C. Act stands confirmed. 13. Learned trial Court has sentenced the appellant to undergo R.I. for three months and to pay fine of Rs.500/- (Rupees five hundred), in default, to undergo R.I. of fifteen days. The learned Amicus Curiae is right in pointing out that the appellant is in his seventies. It is obvious that the appellant is settled in life with his family. The learned Amicus Curiae 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 Page 8 of 11 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, the appellant is entitled to the benefit of Probation of Offenders Act. 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: - “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
hearing, Mr. Anshuman Roy, Advocate appeared for Mr. D.P. Dhal, learned Senior Advocate and submitted that this is a very old matter and there is no instruction on behalf of the appellant. In that scenario, he seeks discharge from the matter. However, this Court requested Ms. Soma Nanda, Advocate to assist the Court in the capacity of the Amicus Curiae to which she has readily agreed and rendered very effective assistance in disposal of the appeal. This Court records appreciation for the valuable assistance rendered by Ms. Soma Nanda, Amicus Curiae. 3. Heard Ms. Soma Nanda, learned Amicus Curiae appearing on behalf of the appellant and Mr. Sarathi Jyoto Mohanty, learned Page 2 of 11 Additional Standing Counsel appearing on behalf of the Respondent- State. 4. The prosecution case in terse and brief is that the appellant was the sub-wholesaler licensee from 31.12.1985 up till 31.12.1989 issued by the Collector, Ganjam. The Inspector of Supplies, P.W.8 the complainant on 09.04.1990 verified the Stock Register in the shop of the appellant and found that except five numbers of empty barrels, no kerosene oil stock was there. The appellant was supposed to have 400 litres of kerosene oil in his possession as per the Stock Register. It was also discovered by P.W.8 that the appellant had not maintained the Sales Register and Stock Register for the period from 01.04.1989 to 31.03.1990. It is, therefore, alleged on verification that the appellant had misappropriated 26,600 litres of kerosene oil between the period from 01.04.1989 till 09.04.1990. Since the appellant has violated the condition nos.4 and 8 of the license granted under the Odisha Kerosene Oil Control Order, 1962 issued to him by the Collector, he was subjected to prosecution under Section 7 of the Essential Commodities Act. Page 3 of 11 5. The prosecution examined nine witnesses besides relying upon numerous documents. P.Ws.1, 2, 3, 4, 6 and 7 were the witnesses who were the retailers under the appellant those who are supposed to receive the kerosene oil from the appellant to sell in the retail market to the consumers. P.W.5 was the seizure witness of the empty barrels. P.W.8 is the Supply Inspector, who is the complainant in the case whereas P.W.9 is the Supply Supervisor who accompanied P.W.8 at the time of verification of the stock. 6. The evidence of all the witnesses are consistent. They have deposed in unison to support the prosecution story against the appellant. The learned trial Court meticulously dealt with the material on record and arrived at the following findings: “6. Since there is clear finding that the accused violated Condition No.4 of the license, he is liable for punishment under Sec.7 of the E.C. Act as the order and the license are deemed to have been issued under Sec.3 thereof. Any violation of Sec.3 is made punishable under Sec.7 of the Act. So, the accused cannot have any escape. 7. It is of-course true that mere non-maintenance of the registers would not call-for any punishment if the same is duly and reasonably explained, otherwise by application of Sec.10-C of the Act, the culpable mental state of the accused is a matter of presumption. Unless explained properly and proved by supporting evidence, such mental culpability is a matter of Page 4 of 11 presumption. In the instant case, in addition to the above, I may say that by the evidence of the retailers, i.e., P.Ws. 1, 2, 3, 4, 6 and 7, it is transparently clear that they did not lift any kerosene oil from the accused though shown to have lifted the same on different dates. P.W.8, the Inspector of Supplies has taken the trouble of cross-checking the Log books of the retailers with that of the sub-wholesaler, the accused.
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.” 1 2023 SCC OnLine SC 605 Page 9 of 11 15. Besides the Judgment quoted above, regard being had to the age of the appellant, their societal status, clean antecedents and the fact that the incident had taken place in the year 1990, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act r/w Section 360 of Cr. P.C. Additionally, the case of the appellant is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2. 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 Act for a period of three 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 2 2012 (Supp-II) OLR 469 Page 10 of 11 Officer during the aforementioned period of three months. However, the sentence for payment of fine of Rs.500/- (Rupees five hundred) is upheld, which shall be paid in accordance with law. 17. This Court records appreciation for the effective and meaningful assistance rendered by Ms. Soma Nanda, learned Amicus Curiae. She is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid. 18. 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 Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2025 19:11:31 Page 11 of 11