The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.258 of 2000 (In the matter of an appeal under Section 374 of the Code of Criminal Procedure, 1973) Belar Chouhan ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant Amicus Curiae : Mr. Satyabrata Mohanty-1, For the Respondent : Mrs. Shiva Mohanty, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. This appeal is directed against the judgment dated 30.09.2000 passed by the learned Additional Sessions Judge, Balangir in 2(c) C.C. Case No. 2/94 corresponding to T.R. No. 1/99, whereby the appellant has been convicted for the offence punishable under Section 7(1)(a)(i) of the Essential Commodities Act, 1955 for contravention of Clause 7(1) read with Clause 8 of the Orissa Kerosene Control Order, 1962 and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for one month further. 2. The case of the prosecution, in brief, is that on 12.08.1993, while the complainant, P.W.1 Gokulananda Badhei, Marketing Inspector, Khaprakhol, was on tour to Matiabhata village, he found the accused-appellant carrying a container hurriedly. Upon being intercepted and questioned, the accused allegedly disclosed that he was carrying kerosene for sale in Matiabhata. Upon verification, the container was found to be containing 18.850 litres of kerosene oil, for which the accused failed to produce any valid cash memo or licence authorizing such possession or sale. Consequently, the complainant seized the kerosene in the presence of witnesses (P.Ws.2 and 3), recorded the statement of the accused (Exhibit 3), and filed the prosecution report for contravention of the provisions of the Orissa Kerosene Control Order, 1962. 3. In the course of investigation, the seized kerosene oil and a 100 ml. measuring container were handed over to P.W.3 Upendra Panda for Page 2 of 9 safe custody under zimanama. A statement allegedly given by the accused was recorded by P.W.2 at the direction of P.W.1, wherein the accused admitted to the possession of kerosene intended for sale without a requisite licence. During the trial, however, P.Ws.2 and 3 turned hostile and did not support the prosecution's version regarding the seizure. Nevertheless, they admitted their signatures on the seizure list and zimanama, which were marked as Exts.1 and 2, respectively. The trial court relied primarily on the testimony of P.W.1 and the documentary evidence, including the accused’s statement, to convict him under the Essential Commodities Act. 4. The trial Court on the basis of the evidence placed before it, called out two issues mainly, i. Whether the accused, appellant, is found to be in possession of kerosene oil in excess of the quantity required to be possessed by a person without any license or permit. ii. Whether the accused was dealing with the same without any license therefor. Page 3 of 9 5. The prosecution examined three witnesses in total to prove its case. P.W. 1 is the prime witness to the prosecution, who is also the complainant in the case. P.Ws. 2 and 3 were witnesses to the seizure. Both the witnesses resiled from their earlier statements and have been declared hostile by the prosecution and were subjected to extensive cross-examination by the prosecution. The prosecution is, therefore, dependent on the sole testimony of P.W. 1. The hostile evidence of P.Ws. 2 and 3 were utilized for the purpose of drawing corroboration to the evidence of P.W. 1. 6. The trial Court, after credible analysis of the evidence of P.W. 1, has arrived at the following finding in regard to both the issues as mentioned in the preceding paragraph. “6. Clause7 (1) of the Kerosene Control Order envisage that no person shall carry on business as a retail dealer on kerosene without any permit granted to him thereon. Clause 8 of the order envisage that the licencing authority shall have the power to fix the price of rateat which kerosene may be sold by a dealer. SRO No. 264/82 of the control order says that no person other than a dealer shall store or have in his possession kerosene any quantity exceeding 10 litres at a time. So as the p.w.1 found the accused was in possession of 18.850 litres of kerosene with him without any licence or permit thereof, he seized Page 4 of 9 the same and kept in zima of p.w.3. As the accused had contravened the aforesaid order, he filed P.R. against him. In this case it is seen that except the p.w.1, the other witnesses have not whispered a single word incriminating the accused to have possessed the kerosene oil which was seized from his possession by p.w.1 and kept in zima of p.w.3. Now a question may arise for consideration if the sole testimony of p.w.1. can be relied upon and the accused would be made liable for the offence alleged. The law is well settled that the conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary, provided that the witness passes the test of reliability. In this case it is seen that though the p.w.1 was cross-examined by the defence at length, but nothing was elicited which would discredit his version. P.Ws. 2 and 3 are though the witnesses to the seizure and p.w.3 being the zimadar have denied their knowledge about the factum of search and seizure, but at the same time they have admitted their signatures on the seizure list and zimanama marked Exts. 1 and 2 and their signatures to be Exts.1/2, 1/3, 2/2 and 2/3 respectively. P.W.2 has also recorded the statement of the accused which has been proved to be Ext. 3. The accused gave such statement to p.w.1 in presence of p.w.2 and 3 and the p.w.2 got the same scribed to his dictation where the accused has admitted to his possessing 18.850 litres of kerosene on 12.8.93 and he was bringing the same to Matiabhata for the purpose of sale. He has also admitted that he had no licence in support of such possession, so it is found that the evidence of p.w.1 is corroborated through the own statement of the accused recorded through p.w.2 which has been marked Ext.3 and p.ws. 2 and 3 having admitted their signatures on the seizure list and zimanama clearly established such seizure of kerosene oil to which the accused had possessed Page 5 of 9 without any licence or permit thereof in contravention of SRO 264/82 dt:19.4.82 and thereby he had contravened clauses 7 and 8 read with SRO 264/82 and thereby he is liable to be convicted U/s. 7(1) (a) (i) of the E.C. Act 1955. Accordingly, the accused is held guilty under section 7(1) (a) (i) of the E.C. Act and he is convicted thereunder.” 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. The appeal has been pending since 2000. When the matter was called up, none appeared on behalf of the appellant. Therefore, Mr. Satyabrata Mohanty-1 has been appointed as Amicus Curiae to assist the Court. 9. Heard Mr. Satyabrata Mohanty-1, learned Amicus Curiae for the appellant, and Mrs. Mohanty, Addl. Standing Counsel for the State. 10. Mr. Mohanty-1, the learned Amicus Curiae, at the outset drew my attention to the order dated 06.02.2001. The order indicates that pursuant to the judgment dated 30.09.2000 passed by the learned Additional Sessions Judge, Balangir in 2(c) C.C. Case No. 2/1994, the Page 6 of 9 appellant was taken into custody on 11.12.2000. This Court, by order dated 06.02.2001, has been pleased to enlarge the appellant on bail. Therefore, the appellant has already undergone custody for a period of 1 month and 26 days. 11. The learned Amicus Curiae further argued that the prosecution's case hinges only upon the testimony of P.W. 1. No other witnesses have supported the prosecution. He submitted that although there is an allegation of violation of clause 8 of the Orissa Kerosene Control Order, 1962, as such alleged to have contravened under Section 7(1)(a)(i) of the Essential Commodities Act, 1955 but there was no chemical examination conducted in the present case to ascertain whether the alleged seized articles were kerosene or not. 12. The Marketing Instructor, P.W. 1, the complainant, has only stated that the seized articles were kerosene. The trial Court has believed it to be so without there being any expert opinion or chemical examination report. 13. He further submitted that the seizure of kerosene itself has come under serious doubt. Both the seizure witnesses have denied having any Page 7 of 9 knowledge about the seizure. Therefore, essentially the conviction is based only on the evidence of P.W. 1 without any corroborating evidence either in the form of oral or documentary evidence brought on record. 14. I have carefully gone through the evidence on record, submission made by the parties and the findings recorded by the trial Court. 15. True it is the case that the prosecution’s case rests only on the shoulders of P.W. 1. However, not a single witness supported the narratives of P.W. 1 in his testimony. The seizure of kerosene itself has gone into a cloud of doubt because P.Ws. 2 and 3 have bluntly denied having any knowledge. This aspect of the matter has been appreciated by the trial Court and recorded as under- “In this case it is seen that except the p.w.1, the other witnesses have not whispered a single word incriminating the accused to have possessed the kerosene oil which was seized from his possession by p.w.1 and kept in zima of p.w.3.” 16. After having arrived at the aforementioned findings, the trial Court appears to have gone wrong while recording the guilt of the appellant. It is also appearing large on record that the prosecution has Page 8 of 9 not made an attempt to establish whether the seized oil is kerosene oil or not, as there was no chemical examination done or other evidence brought on record. Apart from that, not an iota of evidence has come on record to establish the quantity of kerosene oil alleged to have been seized. In the face of the aforementioned nature of evidence sustaining the conviction of the appellant on the basis of solidary oral testimony of P.W.1, the charge under Section 7(1)(a)(i) 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. 17. This Court acknowledges the effective and meaningful assistance rendered by Mr. Satyabrata Mohanty-1, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation. 18. Accordingly, the Criminal Appeal is allowed. (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: 21-Jul-2025 19:16:34 Page 9 of 9