The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.23 of 1997 (In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973) Nishamani Amat ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. P.K. Mallick, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing:17.07.2025 :: Date of Judgment:18.07.2025 S.S. Mishra, J. This appeal is directed against the judgment and order dated 29.01.1997 passed by the learned Judge (Special Court), Sambalpur in T.R. Case No. 10 of 1995 whereby the appellant, Nishamani Amat, was convicted under Section 7(1)(a) of the Essential Commodities Act, 1955 (hereinafter referred to as “E.C. Act”) for contravention of Clause 8(b) of the Orissa Kerosene Control Order, 1962 and sentenced to undergo rigorous imprisonment for a period of three months. 2. The prosecution case, in brief, is that on 12.04.1995 at around 9:00 A.M., the appellant was found in possession of a tin containing 20 litres of kerosene at village Kadaligarh. He was intercepted by some
Legal Reasoning
under the EC Act. The Court also relied on the decision of this Court in Pravash Chandra Bachar vrs. State of Orissa, reported in (1992) Cri LJ 1728, wherein it was held that possession of kerosene beyond the Page 3 of 9 permissible limit without a proper licence attracts penal liability under Section 7(1)(a) of the E.C. Act. 6. The learned trial Court further observed that since the tin had a 20-litre capacity and was stated to be full, the offence stood established. The absence of chemical examination was considered immaterial, as the Court found it sufficient that the substance had the characteristic smell of kerosene and was described as such by all prosecution witnesses. The court also declined to extend the benefit of Probation of Offenders Act, holding that the offence was one against public interest. The relevant portion of the aforesaid judgment is extracted herein below:- “5.It is next to be seen as to whether, as alleged, the accused was in possession of 20 litres of Kerosene. To begin with the evidence, P.W.1 is the informant who, being called by the villagers came to the spot and seeing the accused caught with Kerosene, went to the Police Station and gave the written report, Ext.1. P.W.2. and 3 are the witnesses to the seizure list (Ext.2) of the Kerosene. Though they have admitted that the Kerosene was not measured before them, according to them the capacity of the tin was of 20 litres. To the same effect is the evidence of P.W.4, who is the I.O. He has also admitted that the Kerosene was not sent for chemical test. I feel that in order to ascertain as to whether it was Kerosene or not, chemical test is not necessary. The Page 4 of 9 learned counsel for the defence contended vehemently by saying that the accused being not a dealer, he cannot be convicted U/s.7(1(a) of the E.C Act and also the material object having not been produced in the Court, there should be doubt with regard to the seizure of the some by the Police. It is true that the Kerosence was not measured but it reveals from the evidence that the Kerosence was kept in a tin of 20 Litres capacity and it was full. The record also further reveals that the cycle alongwith the tincontaining Kerosene was sent to court Malkhana by a Mal Chalan. This being so, no doubt should be entertained as to the seizure of the Kerosence from the possession of the accused. It is only to be seal as to whether he has contravened the rule as indicated above, As I have already said, mere possession of kerosene of more than 10 litres itself is an offence and there is no material to show that the accused was a dealer, he had committed the offence. Almost in a similar circumstnace, in the case of Pravash Chandra Bachar Vs. State of Orissa reported in (1992) 5 O.C.R. P-158, it is clearly held that possession of kerosene more than the limit prescribed in the aforesaid rule is an offence. This being so, the accused cannot avoid the accusation levelled against him. In the result, therefore, I found the accused guilty and convict him U/S.7(1)(a) of the Essential commodities Act for having the Orissa violated Clause-8(b) of KeroseneControl order, 1962. As the offence is an offence against the society, I do not feel it necessary to give the benefit of the probation of offenders Act to the accused. Taking into account therefore his age and status as well as the standard he maintains, in the society, I am of the view that a sentence of R.I. for three months would serve the ends of justice. Although sentence of fine is also Page 5 of 9 mandatory, it is not obligatory on the part of the court to impose it always, As said above, keeping in view the standard of the accused, I only sentence him to undergo R.I. for months with the provisions of set off U/S.423 Cr.P.C. With regard to the seized articles, those should have been confiscated as indicated in Sec.6-A of the E.C Act. Instead of passing any order, I feel it proper to bring this fact to the notice of the appropriate authority to take action for confiscation of the articles seized in this case. Accor- dingly, therefore, the extract of the relevant portion of this order be sent to the Sub-Collector, Sambalpur to take immediate action regarding disposal of the property.” 7. After having found the appellant guilty of the offence under the E.C. Act, awarded him the sentence on that count as mentioned above. The appellant is aggrieved by the same and has preferred the present appeal. 8. Heard Mr. P.K. Mallick, learned Counsel on behalf of the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 9. At the outset, it may be noted that the relevant notification dated 19.04.1982 prohibits possession of kerosene exceeding ten litres at a time by any person who is not a dealer. The accused admittedly was not Page 6 of 9 a licensed dealer. However, a mere technical breach of the Control Order without mens rea or proof of willful contravention may not always warrant penal consequences. The Hon’ble Supreme Court in the case of Nathulal vrs. State of Madhya Pradesh reported in AIR 1966 SC 43 has held that mens rea is an essential ingredient of the offence under the E.C. Act unless specifically excluded. 10. In the present case, the prosecution has failed to prove that the accused was storing the kerosene for commercial purposes or that he was engaged in any unauthorized sale or distribution. The failure to trace the source, coupled with the absence of concrete evidence regarding the accused’s intention, weakens the prosecution's case. 11. The trial Court failed to provide any rationale for denying probation. The appellant was a first-time offender, relatively young (32 years), and there is no allegation of any profit-making motive or public harm. In the absence of aggravating factors, the rejection of probation under Section 360 Cr.P.C. or the Probation of Offenders Act appears to be mechanical. Page 7 of 9 12. More significantly, the seized tin allegedly containing 20 litres of kerosene was not produced during the trial. No marking as a material exhibit was made. The Courts have consistently held that non- production of seized material, especially when the entire case hinges on the nature and quantity of the contraband, creates a serious dent in the prosecution’s credibility. In Jitendra v. State of M.P. reported in [(2004) 10 SCC 562], the Hon’ble Supreme Court held that failure to produce the seized articles creates a missing link in the chain of evidence and is fatal to the prosecution. 13. It is also pertinent to note that the alleged incident took place as far back as12.04.1995, and more than 30 years have passed since then. The appellant has endured the ordeal of a prolonged criminal process hanging over his head for nearly three decades. Such an inordinate delay in the final resolution of the case further tilts the balance in favour of the appellant. Continuing the stigma of conviction under these circumstances would not serve the ends of justice. 14. After having arrived at the aforementioned findings, the trial Court appears to have gone wrong while recording the guilt of the Page 8 of 9 appellant. The kerosene was admittedly not measured in the presence of independent witnesses. While P.Ws.2 and 3 stated the tin had a 20-litre capacity, no scientific evidence supports the claim. There was no chemical examination done or other evidence brought on record. Without measurement or chemical examination, it is hazardous to conclusively presume that the seized substance was kerosene and that it exceeded the prescribed limit. In the face of the aforementioned nature of evidence sustaining the conviction of the appellant, the charge under Section 7(1)(a) of the Essential Commodities Act, 1955 is not safe. Hence, I acquit the appellant of the charges under the Essential Commodities Act, 1955. The bail bond stands discharged. 15. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th July, 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2025 17:09:18 Page 9 of 9
Arguments
villagers and detained. Upon receipt of written intimation from one Sri Golekh Chandra Behera (P.W.1), the local police reached the spot and seized the tin containing kerosene along with the cycle used for transportation. Subsequently, the accused was arrested and a charge- sheet was filed after investigation, alleging violation of Clause 8(b) of the Orissa Kerosene Control Order, punishable under Section 7(1)(a) of the E.C. Act. 3. During the trial, the prosecution examined four witnesses. P.W.1 was the informant who claimed that upon being called by villagers, he found the accused in possession of kerosene and informed the police by submitting a written report marked as Ext.1. P.Ws.2 and 3 were seizure witnesses who confirmed their signatures on the seizure list (Ext.2), though they admitted in cross-examination that the kerosene was not Page 2 of 9 measured in their presence. P.W.4 was the investigating officer who also admitted that the kerosene was not subjected to chemical analysis. No material object (the tin or the seized kerosene) was produced during the trial for identification or marking. 4. The defence plea was one of complete denial. No evidence was adduced on behalf of the defence. It was argued before the trial Court that in the absence of chemical examination and proper production of the seized articles in Court, the appellant could not be conclusively linked to the alleged contravention. 5. The learned trial Court, however, found the evidence of P.Ws.1 to 4 sufficient to establish possession of 20 litres of kerosene by the accused. Relying on a notification dated 19.04.1982 issued under Clause 3(b) of the Orissa Kerosene Control Order, 1962 (S.R.O. No. 264/82), the learned trial Court held that possession of more than 10 litres of kerosene by a person who is not a licensed dealer amounts to an offence