The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.152 of 1992 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Keshab Mehera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Sougat Das, Amicus Curiae For the Respondent : Mr. A.K. Apat, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.09.2025 :: Date of Judgment: 09.12.2025 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 27th March, 1992 passed by the learned Special Judge -cum- Sessions Judge, Balangir, in II(C) C.C. No.13 of 1990/T.R.No.19 of 1990 for the offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act and sentenced the appellant to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/-(One Thousand) in default to further undergo rigorous imprisonment for one month. 2. The present appeal has been pending since 1992. When the matter was called for hearing, consistently none appeared for the
Legal Reasoning
appellant. Therefore, this Court requested Mr. Sougat Das, learned counsel, who is present in Court to assist the Court as Amicus Curiae. He has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Mr. Das. 3. Heard Mr. Sougat Das, learned Amicus Curiae, for the appellant and Mr. A.K. Apat, learned Additional Government Advocate for the State. 4. It is alleged that the accused was running a grocery shop at village Tendapadar under Patnagarh Police Station. On 05.10.1990, during the afternoon, officials of the Supply Department conducted a search of the said shop. During inspection, the accused was found storing 14 litres of kerosene oil, whereas possession of kerosene in Page 2 of 14 excess of 10 litres requires a valid dealership licence, which the accused did not have. Additionally, the accused was found storing 30 kilograms of common salt. Since common salt is an essential commodity, its stock and price must be displayed on a declaration board under the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. No such declaration board was found in the shop. The accused was, therefore, alleged to have contravened the 1973 Order. On these two grounds unauthorised possession of kerosene beyond the permissible limit and failure to display the mandatory stock and price of common salt, the accused was prosecuted under Section 7 of the Essential Commodities Act. 5. The prosecution examined only two witnesses in total. P.W.1 was the then Supply Supervisor and P.W.2 was the then Armed Police Constable. As per the case of the prosecution the premises was inspected by the supply staff in the presence of the armed forces to maintain law and order. Page 3 of 14 6. The accused pleaded not guilty and refuted the allegation of owning grocery shop at Tendapadar. On this stance of denial, he was put to trial. 7. The learned Trial Court by relying on the statement of both the P.Ws, and the circumstantial evidence held as under: is corroborated by “7. The Supply Supervisor (P.W. 1) and the Police Constable (P.W.2) depose that the shop had a stock of 14 litres of kerosine. The oral evidence the documentary evidence of seizure list and the zimanama, Ext. 3. The seizure list speaks of seizure of 14 litres of kerosine. The zimanama-Ext. 3 reads that the seized kerosine measuring 14 litres was given in zima, As we find from the oral evidence, the accused himself measured the kerosine in presence of the inspecting party. 8. It is argued that the kerosine has not been scientifically tested. Commonly everybody is a acquainted with kerosine. It has a particular smell quite different from any other liquid. It does not require a scientific test. I, therefore, accept the oral evidence that the seized liquid was nothing but kerosine. Admittedly the accused did not have any dealership license. His possessing kerosine exceeding 14 litres is, therefore, a case of contravention of provision of the Orissa Kerosine Control Orders has been held in (1992)5 O.C.R. 158 Prabhas vrs, State possessing of kerosine exceeding the permissible quantity is punishable u/s 7(1)(a) of the Essential Commodities Act. 9. Coming to the possession of common salt, the Orissa Declaration of Stocks and Prices of Essential Commodities to as 1973 Order) Order, 1973 enumerates edible common salt as an item of essential commodity. According to the said 1973 Order a dealer carrying on business in edible common salt is required to display the stock and its price in his business premises. In the instant case, it is alleged that the accused did not display any such stock and price board. It is argued that the evidence is not specific if the common salt seized from the shop is edible or not. Common people refer edible salt as is edible or not. Common people refer edible salt as salt only. So, the seized salt could not be other than edible common salt. It is further urged (hereinafter referred Page 4 of 14 that the prosecution report does not reveal about non-display of the price board. Admittedly the prosecution report does not speak in so many words about the non-display of the price board. It, however, mentions that the accused possessed 30 Kgs, of common salt and that he has contravened the provision of the 1973 Order. This fact read with the seizure list wherein it is specifically mentioned that the seizure was made for non- display of declaration board clearly the prosecution was launched for non-display of the price board also. I, therefore, accept the evidence of the Supply Supervisor that the accused in fact did not display the price board as required by the 1973 Order, He has contravened the provision and is liable under the Essential Commodities Act.” indicates that 8. Aggrieved by the aforementioned findings which led to the conviction and order of sentence, the appellant has filed the present appeal. 9. The learned Amicus Curiae for the appellant has assailed the impugned judgment on several grounds. It is contended, at the threshold, that the essential ingredients of the alleged contravention have not been established by the prosecution. PW-1, in his cross- examination, admitted that the prosecution report does not indicate non-maintenance of the declaration board, nor does the seizure list reflect that the stock allegedly seized was recovered from the possession of the appellant. In the absence of categorical proof of contravention, it is submitted that the conviction is unsustainable. Page 5 of 14 It is next urged that the defence plea regarding non-requirement and absence of scientific examination of the seized liquid has been wrongly brushed aside. The liquid purported to be kerosene was never subjected to a chemical or scientific test, and the Trial Court’s observation that “everybody is acquainted with kerosene” cannot, in law, substitute the mandatory requirement of proof. In criminal jurisprudence, suspicion or assumption, however strong, cannot take the place of proof beyond reasonable doubt. The learned Amicus Curiae further submitted that the alleged quantity of kerosene in excess was a mere 4 litres above the permissible limit of 10 litres. For a grocery shop owner catering to local household needs, such marginal excess cannot, by itself, constitute black-marketing or hoarding within the mischief sought to be prevented by the Essential Commodities Act. It is argued that the element of mens rea unless specifically excluded is a necessary component for conviction under Section 7, and the same is conspicuously absent in the present case. Attention is also invited to the procedural lapses vitiating the seizure and the prosecution case. No independent witness to the Page 6 of 14 seizure has been examined. PW-2, an armed constable, is a merely formal witness with no relevance to the actual act of contravention. The prosecution has also failed to produce any stock register or shop record to substantiate the allegation of excess possession. 10. Reliance is placed on the judgment of this Court in Champeswar Bastia v. State of Orissa & Others1, wherein, in similar circumstances, the conviction under Section 7 of the Essential Commodities Act was set aside. It is further argued that the alleged offence dates back to the year 1990, and the appellant has undergone the ordeal of criminal prosecution for a period of 35 years. He is presently 67 years old and has no criminal antecedents. The learned counsel draws support from the consistent view of the Hon’ble Supreme Court that, in cases of petty nature and where there has been an extraordinary lapse of time, the ends of justice are adequately met by reducing the sentence to the period already undergone. 1 CRA No. 66 of 1992 Page 7 of 14 An alternative plea on sentence is also advanced. Even assuming, arguendo that a technical contravention stands proved, the alleged violation pertains only to a trivial excess quantity of kerosene and non-display of salt stock on the board, with no evidence whatsoever of profiteering, black-marketing, or large-scale hoarding. The object of the Essential Commodities Act is to prevent diversion of essential commodities on a significant scale, and not to visit small shopkeepers with penal consequences for minor procedural lapses. On these premises, it is prayed that the conviction recorded under Section 7(1)(a)(ii) of the Essential Commodities Act be set aside and the appellant be acquitted of the charges. In the alternative, considering the trivial nature of the alleged contravention, the absence of mens rea, the long passage of 35 years, and the advanced age of the appellant, it is prayed that the sentence be modified to that of fine alone. 11. On the contrary, it is submitted by Mr. A.K. Apat, learned A.G.A. for the State that the findings of the learned Trial Court are well-reasoned and supported by the evidence on record, and, therefore, call for no interference. Page 8 of 14 12. Having heard the learned counsel for the parties and with their help, I have gone through the material on record so as to appreciate the evidence to test the sustainability of the impugned order. The criminal law was set into motion against the appellant on the basis of the prosecution report dated 05.10.1990. The prosecution report reads as under:- “I demanded the accuse person Sri Meher to produce the valid documents before me for authencticacy on his selling of K.Oil and salt, but he failed to produced the same. Than I obtained statement from the accused person and ascertained that he was selling @Rs.4.00 per lr. of K.Oil and @Rs.1.75 per kg. of common salt. Also I enquired from the consumers of that locality and come to that they are purchasing the K.Oil and salt from Sri Meher at the aforesaid rate. Than I have seized the stocks from Sri Meher and kept under Zimanama of Sri Mohan Singh Nag, S/O Sri Dasmu Nag of Tendapadar for safe storage of the stocks i.e. 14 (forteen) lrs. of K.Oil and 30 (thirty) Kgs. of common salt along with the containers. Thereby the accused person contravained the Section of the control orders mentioned against Col.4.” 13. The prosecution tried to establish its report through only two witnesses, namely, the Supply Officer and one Armed Constable, who happens to be present at the time of the search and seizure. The prosecution has emphatically relied upon the statement of the accused recorded in the spot, which was exhibited as Ext.2. Although the Supervisor, who conducted the search and seizure, has deposed that Page 9 of 14 he had enquired from the customers of that locality and came to know that they were purchasing the Kerosene oil and salt from the appellant at Rs.4 per liter and Rs.1.75 per kg. respectively, but surprisingly none of the consumers were examined by the prosecution. Rather, the prosecution is strongly relied upon the statement of the accused Ext.2 already made before P.W.1. The learned trial court while dealing with such situation has observed as under:- “6. Then we have the statement of the accused (Ext.2) wherein he has admitted his ownership over the inspected grocery shop. It is said that Ext.2 is not admissible in evidence for the fact that it was confessional in nature and that police people were present. Admittedly the police officer was present to maintain law and order. It has, however, no thing to do with the inspection and detection. I would, therefore, not agree that the statement is not admissible. into Taking all consideration and even ignoring the statement Ext.2, I would hold that the accused did own a grocery shop at Tendapadar and that the same was inspected on the date mentioned above.” facts oral and documentary these 14. The aforementioned analogy applied by the learned trial court to place reliance upon Ext.2, which is self-incriminatory, is not permissible under law. The prosecution is obliged under law to establish its case independently beyond all reasonable doubt, but not to establish its case by extracting the confession from the accused. The defence plea raised by the accused is also blissfully ignored by Page 10 of 14 the learned trial court. The learned trial court so as to convict the appellant has assumed many things rather than relying upon the material evidence. The assumption could be reflected from one of the observations made by the learned trial court, which read as under:- “The supply Supervisor (P.W.1) is the local officer. By nature of his official duty it is expected that he knew about the ownership of the shop prior to the detection. His evidence that he inspected the shop of the accused, therefore, cannot be doubted.” In the face of the defence plea that the shop is not belonging to him, the onus was on the prosecution to establish that the shop belongs to the accused. However, the learned trial court presumed that the sole witness, i.e., the Supervisor knew that the shop belongs to the appellant although from the evidence of Supervisor (P.W.1) nothing of that sort is illuminating. The reading of the impugned order does not inspire confidence to sustain the conviction. 15. Upon an overall re-appraisal of the evidence on record and the submissions advanced, this Court finds that the prosecution has failed to establish the essential ingredients of the alleged contravention under Section 7(1)(a)(ii) of the Essential Commodities Act with the degree of certainty required in a criminal trial. The testimony of PW-1 Page 11 of 14 itself reveals that neither the prosecution report nor the seizure list discloses that the seized stock was recovered from the conscious possession of the appellant, nor is there material to show non- maintenance of the declaration board. The absence of such foundational facts strikes at the root of the prosecution case. The Court further notes that the seized liquid, purported to be kerosene, was never subjected to scientific or chemical examination. In the absence of such proof, the identity of the commodity remains unestablished. The Trial Court’s reliance on general familiarity with kerosene cannot substitute the legal requirement of proof beyond reasonable doubt. The criminal justice system does not permit conviction on conjecture or assumption when precise scientific evidence is readily obtainable but not produced. 16. Additionally, the quantity of the alleged excess kerosene is a mere 4 litres over the permissible limit. Such a marginal deviation, particularly in the case of a small grocery shop catering to local households, does not, by itself, indicate hoarding, profiteering, or any conduct inimical to the objectives of the Essential Commodities Act. Page 12 of 14 In the absence of any evidence of dishonest intent, the element of mens rea cannot be presumed. 17. Significant procedural lapses further weaken the prosecution case. No independent witness to the seizure has been examined; P.W.1 is an official witness and P.W.2, the armed constable is only a formal witness. The prosecution has also failed to produce stock registers or shop records to substantiate the allegation of excess possession. Such omissions create material doubts as to the manner and legality of the seizure. 18. This Court is also mindful of the fact that the alleged offence pertains to the year 1990. The appellant, now aged about 67 years, has remained embroiled in criminal proceedings for nearly 35 years. He has no criminal antecedents, and the prolonged pendency of a matter of such petty nature weighs significantly in the scales of justice. 19.
Decision
In view of the above observation and discussion, this Court is of the considered view that the conviction of the appellant cannot be sustained. Page 13 of 14 20. Hence, the conviction and sentence of the appellant under Section 7(1)(a)(ii) of the Essential Commodities Act are hereby set aside. The appellant is acquitted of all charges. His bail bonds stand discharged. 21. Accordingly, the Criminal Appeal is allowed. 22. This Court records the appreciation for the effective and meaningful assistance rendered by Mr. Sougat Das, learned Amicus Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th of December, 2025/ Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 12-Dec-2025 16:18:03 Page 14 of 14