The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.253 of 1993 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973.). Sankhanada Khiti …. Appellant -versus- State of Orissa and another …. Respondents For Appellant : Mr. M.K. Mohanty, Advocate For Respondents : Mr. S.S. Pradhan, AGA CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT:20.01.2023 G. Satapathy, J. 1. This is an appeal U/S.374(2) of the Cr.P.C. read with Section 12AB of the Essential Commodities Act, 1995 (in short the E.C. Act) by the appellant against the judgment of conviction and order of sentence passed on 24.07.1993 by learned Special Judge, Koraput at Jeypore in T.R. Case No.17 of 1992 convicting the appellant for CRA No.253 of 1993 Page 1 of 14 commission of offence U/Ss.7(1)(a)(ii) of E.C. Act and sentencing him to Rigorous Imprisonment for two months and to pay a fine of Rs.500/- (Rupees Five Hundred) and in default to undergo Rigorous Imprisonment for further period of fifteen days. 2. Facts in precise are on 12.12.1991 evening, the IIC, Tentulikhunti P.S. detained the truck ORK-9405 loaded with 49 bags of CRM rice weighing about Ql.45.12 Kgs with convict the appellant, who was illegally transporting such rice with the help of acquitted co- accused without any relevant documents by showing duplicate issue orders No.096669 and 096670 dated 30.11.1991 of the Marketing Inspector, Tentulikhunti in favour of R.P. Padhi and Abhinash Govinda for Ql.30 and Ql.20 of rice respectively. On receipt of aforesaid information, being directed by Sub-Collector, Nabarangpur, the Marketing Inspector, Nabarangpur proceeded to the spot on 14.12.1991 at about 11.30 A.M. after contacting the BDO, Tentulikhunti and on verification of documents, the Marketing Inspector, CRA No.253 of 1993 Page 2 of 14 Nabarangpur-P.W.1 found that the convict-appellant had neither obtained the signature of the receiver of the truck on 12.12.1991 nor produced any relevant documents like tally register of the concerned dealer and the aforesaid
Legal Reasoning
rice truck was allegedly given delivery to Sri Jaykumar Jain of Tentulikhunti without any authority and, thereby, the convict-appellant was found to have violated of Clause-12(Distribution)/(b) of Orissa Rice and Paddy Control Order, 1965. After conducting interrogation of the truck driver and verifying the relevant records as well as making seizure of vehicle with aforesaid CRM rice on 14.12.1991, P.W.1 thereby, conducted investigation and submitted P.R. against the convict-appellant and acquitted accused on 15.06.1992 for commission of offence U/S.7/10 of E.C. Act. On receipt of P.R., cognizance of offence was taken and the convict-appellant along with another were sent to trial in which five witnesses were examined on behalf of prosecution as against one witness by the defense. The prosecution also relied upon eleven CRA No.253 of 1993 Page 3 of 14 documents vide Ex.1 to 11 whereas the defense has relied upon the seizure list indicating seizure of issue orders vide Ex.6 and 7. 3. After hearing the parties upon appreciating the evidence on record, the learned Special Judge, Koraput at Jeypore by way of impugned order convicted the appellant for commission of offence U/Ss.7(1)(a)(ii) of E.C. Act and sentenced him to Rigorous Imprisonment for two months and to pay a fine of Rs.500/- (Rupees Five Hundred) and in default to undergo Rigorous Imprisonment for further period of fifteen days, while acquitting co-accused Jaykumar Jain of the charge. Feeling aggrieved by the conviction and sentence, the appellant has preferred this appeal. 4. A written note of submission has been filed by Mr. M.K. Mohanty, learned counsel for the appellant, who has supplemented the same by advancing oral arguments in the matter. In assailing the impugned judgment of conviction and order of sentence, it has been advanced that the convict-appellant had taken steps for supply of CRA No.253 of 1993 Page 4 of 14 rice to P.W.3 and 4, who had authorized him to send the rice in a truck and, accordingly, the authorization letters issued by P.W.3 and 4 although had been seized by the prosecution, but the same were withheld by it and since the appellant had tried to supply the rice in the truck of co-accused to P.W.3 and 4 on their authorization, it cannot be said that the appellant had tried to transport 50 bags of rice in a truck violating the Orissa Rice and Paddy Control Order, 1965 and, thereby, the appellant cannot be held guilty of offences U/Ss.7(1)(a) (ii) of E.C. Act, but ignoring such facts, the learned trial Court had convicted the appellant without appreciating the evidence in proper prospective and, thereby, the conviction of the appellant is liable to be set-aside. It is also alternatively submitted that although the appellant had prayed for extending the benefit of provision of Section 360 of Cr.P.C. or appropriate provisions like Section 3 and 4 of the Probation of Offenders Act, (In short, “P.O. Act”) but learned trial Court without assigning any cogent reasons had sentenced the appellant at once and, therefore, the CRA No.253 of 1993 Page 5 of 14 appeal having been taken up after 29 years of the impugned judgment of conviction, the appellant may kindly be released at least under the beneficial provisions of P.O. Act. 5. On the other hand, learned AGA has vehemently submitted that the evidence on record clearly establishes a case against the accused for commission of offence U/Ss.7(1)(a)(ii) of E.C. Act beyond all reasonable doubts and, thereby, the learned trial Court has not committed any illegality in convicting and sentencing the appellant in the aforesaid offence and, thereby, the appeal being unmerited may kindly be dismissed. 6. In view of above, this Court now proceeds to examine the legality of the impugned judgment of conviction and order of sentence by appreciating the evidence in the light of rival submissions. A careful perusal of evidence on record together with impugned judgment, it appears from the evidence of P.W.1 and P.W.2 that the O.I.C., Tentulikhunti had detected the truck ORK-9405 loaded with rice in the premises of CRA No.253 of 1993 Page 6 of 14 LAMPS-Cum-Godown at Tentulikhunti and the appellant being the Sales Assistant–cum-Godown keeper of Tentulikhunti LAMPS had issued the aforesaid rice to the retailers in the above truck, which evidence was squarely admitted by the appellant in his statement U/S.313 Cr.P.C., but the appellant had taken a plea that the aforesaid rice was being issued by him to dealers A. Gobinda Rao and R.P. Padhi which fact was never been established by the defence and on the other hand, the prosecution had established that 30 Quintals of rice was issued to A. Gobinda Rao and 20 Quintals of rice to R.P. Padhi vide Ext.5 and in support of issuance of rice to the aforesaid dealers, the issue orders were proved by the prosecution under Ext. 6 & 7 which were never disputed by the appellant. A legal scrutiny of evidence of P.W.3 Abinash Gobinda and P.W.4 R.P. Padhi would go to disclose that they had never authorized the co-accused J.K. Jain to lift the rice stock on their behalf, which was a plea set up by the appellant to account for the rice detected with the truck in question to have been received CRA No.253 of 1993 Page 7 of 14 by the co-accused on behalf of the aforesaid dealers, but on the other hand, it appears from the evidence of P.W.3 and P.W.4 that they had requested the appellant to give the rice to them personally and not to anybody else. Above narration of evidence would clearly go to disclose that the learned Trial Court had not committed any illegality in appreciating the evidence while finding the guilt of the appellant for the offence. 7. In the ultimate appraisal of totality of evidence on record, this Court does not find any error apparent in the judgment to reverse/modify or set-aside the conviction of the appellant and thereby, the judgment of conviction as recorded against the appellant by the learned Trial Court cannot be interfered with and the same is, accordingly, confirmed in this appeal. 8. In coming back to address the alternative argument advanced for the appellant to give the benefit of P.O. Act instead of sentencing him at once, the prime objective behind imposing punishment is to finish the crime, but not the criminals. Sentencing the guilty to CRA No.253 of 1993 Page 8 of 14 appropriate punishment is the last and most important job as well as difficult task for a criminal Court in a criminal trial and at the same time, undue sympathy and inadequate punishment to the guilty is some time counterproductive for the society. Albeit there are different theories of punishment, but deterrent as well as preventive theories with reformative approach should be the focus of criminal Courts while sentencing the guilty, nonetheless, the object of P.O. Act is more to reform the offender than to punish him. 9. In Harivallabha and another Vrs. State of M.P.; (2005) 10 SCC 330, upon noticing the conviction of the appellant for Sec.7 of the E.C. Act and High Court reducing the sentence of imprisonment to three months, the Apex Court in Paragraph 3 has held that:- “A Court can refuse to release a person on probation of good conduct U/S.360 of the Cr.P.C., but in the facts and circumstances of the case, the appellants should have been dealt with under the provisions of Sec.360 of the Cr.P.C.” CRA No.253 of 1993 Page 9 of 14 10. In Som Dutt and others Vrs. State of Himachal Pradesh; (2022) 6 SCC 722, the Apex Court in Paragraph-6 has held as under:- “Having regard to sentence imposed by the Courts below on the appellants for the offence U/S.379 r/w Section-34 of IPC, and having regard to the fact that there are no criminal antecedents against the appellants, the Court is inclined to give them the benefit of releasing them on probation of good conduct.” 11. In Lakhvir Singh Vrs. State of Punjab; (2021) 2 SCC 763, while extending the benefit of Sec. 4 of P.O. Act to the convict, the Apex Court has held the following in Para-6:- for the and enactment “We may notice that the Statement of Objects and Reasons of the said Act explains the rationale its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self- reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved.” 12. In Vipul Vrs. State of Uttar Pradesh; (2022) SCC Online SC 1686, the Apex Court at Paragraph-30 has held as under:- CRA No.253 of 1993 Page 10 of 14 “Section 360 pertains to an order after conviction, to be passed by the Court after facilitating a release and also admonition, probation of good conduct. It is to be exercised on two categories of persons. The first category consists of persons attaining 21 years and above with the proposed punishment for a term of 7 years or less. While the other for a larger term except punishable with death or imprisonment for life. This is made applicable to a convict aged under 21 years or any woman. The Court has to weigh the age, character and antecedent of the convict with the circumstances leading to the offence committed. If satisfied, it can release the convict entering into a bond while a direction to keep the peace and maintain good behavior can be ordered during the said period. As discussed, this provision can be pressed into service while dealing with chapter-XXIA other than convicting a person after trial. Like the other two provisions involving plea bargaining and compounding, Sec. 360 of the Code is also a forgotten one.” 13. In T. Sushila Patra Vrs. State; (1987) SCC Online Ori 144, while extending the benefit of Sec. 360 of the Cr.P.C. to the convict-petitioner after confirming her conviction in a case where she was sentenced to undergo RI for six months with payment of fine of Rs.1,000/- (Rupees One Thousand) in default whereof to undergo further RI for one month for offence U/S.7(1)(a) of the E.C. Act, this Court has held in Paragraph-8 as under:- “There is no doubt that the provisions of the certain Essential Commodities Act in CRA No.253 of 1993 Page 11 of 14 circumstances prescribed imposition of a minimum sentence and it is undoubtedly a special statute, but neither of those two conditions totally bars the discretion of the Court to grant probation to the convict either under the criminal procedure code or even under the relevant Sections of the Probation of Offenders Act.” 14. In scrutinizing the facts of the case in the backgrounds of the scope and object of P.O. Act and authoritative pronouncements in the cases referred to above, it appears that the appellant was convicted in this case for commission of offence U/Ss.7(1)(a)(ii) of E.C. Act which is punishable with minimum imprisonment of three months, but which may extend to seven years and fine and, therefore, the benefit of Sec.3 of P.O. Act cannot be extended to the convict-appellant. However, the convict is a first time offender and no previous conviction of the appellant has been proved and more than 29 years has been elapsed in the mean time after conviction of the appellant and the convict was aged about 33 years as on the date of his conviction and now he would be more than 60 years. This Court, therefore, considers it unnecessary to send the convict-appellant to CRA No.253 of 1993 Page 12 of 14 jail custody to suffer his sentence at this point of time. The State, however, has not come up with any convincing materials to show that the convict is incorrigible and cannot be reformed and as has already been discussed that the object of punishment is also reformative. Hence, in the above circumstances, this Court considers it proper to give the benefit of Sec.4 of P.O. Act to the convict- appellant inasmuch as the offence with which the appellant is convicted does not prescribe punishment for life or death, and having regard to the circumstances of the cases including the nature of offence and the character of the appellant, it is considered expedient to release the appellant on probation of good conduct. 15. In the result, the appeal is dismissed on contest, but in the circumstance, there is no order as to cost and, accordingly, the conviction of the appellant is maintained, but instead of sentencing him to suffer any punishment, it is directed that the appellant be released U/S.4 of the P.O. Act for a period of one year upon his entering into a bond of Rs.10,000/- (Rupees Ten CRA No.253 of 1993 Page 13 of 14 Thousand) without any surety to appear and receive sentence, when called upon during such period and in the meantime, to keep the peace and be of good behavior. The appellant shall remain under the supervision of the concerned Probation Officer during the aforesaid period. The sentence is, accordingly, modified. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 20th day of January, 2023/Subhasmita CRA No.253 of 1993 Page 14 of 14