Criminal Appeal No. 03 of 2010 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.196 of 2011 (In the matter of an application under Sections 401 read with Section- 397 of the Criminal Procedure Code, 1973) Neelo Kontho @ Neelakantha Sadangi & another ……. Petitioners -Versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. T.K. Mishra, Advocate For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 01.07.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision under Section 401 read with Section 397 Cr.P.C. is arising out of the judgment and order dated 03.01.2011 passed by the learned Additional Sessions Judge, Jeypore in Criminal Appeal No.03 of 2010, whereby the judgment of conviction and order of sentence dated 17.07.2009 passed by the learned J.M.F.C., Kotpad in 2(c) CC No.4 of 2001/T.R. No.543 of 2001 has been
Legal Reasoning
confirmed. 2. The prosecution alleged that on 16.02.2000 at about 5 P.M., when the Marketing Inspector Nityananda Padhi, P.W.4 apprehended the stock of kerosene being carried out in two bi-cycles, on demand, the carriers could not produce the valid documents in support of such possession of kerosene which was beyond the permissible limit. After measuring the kerosene stocks, he seized two plastic jerry canes containing 55 liters and 20 liters of kerosene respectively. One tin containing 15 liters of kerosene was recovered from the possession of accused Shyama Ghana Pujari and 215 liters of kerosene in toto was recovered from the possession of accused Sanjay Kumar Dian along with their bicycles in presence of the witnesses. He executed the seized articles in zima of the sub-wholesaler Nilakantha Patnaik in presence of the witnesses. Both the accused persons confessed their guilt before the Marketing Inspector and other witnesses. They confessed that they were carrying kerosene on behalf of the accused Nilakantha Sadangi of Kotpad. During further Page 2 of 11 investigation, the Marketing Inspector raided the shop-cum-residence of the accused Nilakantha Sadangi of Kotpad on 19.02.2000. The said accused confessed his guilt describing that the accused Manoj Kumar Khila cum R.C. holder of Camp No.7 being under S.B. Nuagaon G.P. lifted kerosene stock on 16.02.2000 and delivered those stocks to him. The Marketing Inspector proceeded to the fair price shop of R.C. holder
Legal Reasoning
Sri M.K. Khilla. The said accused confessed his guilt before the Marketing Inspector stating that his centre was being managed practically and financially by accused Nilakantha Sadangi of Kotpad. On 15.02.2000 he purchased 300 liters of kerosene from sub-wholesaler, Kotpad which was lifted by him on 16.02.2000 and the entire stock was handed over to the accused-petitioner No.1 Nilakantha Sadangi. Again on 22.02.2000 the Marketing Inspector proceeded to the house of the petitioner and seized the retail license bearing No.21 valid up to 31.03.2000 issued by the Sub-Collector, Jeypore in favour of M.K. Khila along with Cash Memo No.40 dated 15.02.2000, 220 liters of kerosene in a barrel container, one kerosene tally register of the accused M.K. Khila, one stock register, one sales register belonging to M.K. Khila in Page 3 of 11 presence of the witnesses. Soon after the seizure, he executed zima of seized kerosene in favour of sub-wholesaler N. Patnaik in presence of the witnesses. Since the accused persons Shyam Ghana Pujari and S.K. Dian violated Clause 8 of the Orissa Kerosene Control Order, 1962, the accused-petitioners Nilakantha Sadangi and M.K. Khila violated Clause No.7(1) and 8 of the Orisssa Kerosene Control Order, 1962 r/w S.R.O. No.264/82, dated 19.04.1982, the Marketing Inspector submitted Prosecution Report under Section 7 of the Essential Commodities Act. 3. Accordingly, a complaint bearing 2(c) CC No.04 of 2001 was filed against the petitioners and three other co-accused persons for the alleged offence punishable under Section-7 of the Essential Commodities Act, 1972 for alleged illegal possession of kerosene beyond permissible limit without any valid license. 4. The prosecution examined 4 witnesses to establish its case and exhibited 10 documents to prove its case. 5. P.Ws.1 & 3 were the independent witnesses. They had resiled from their earlier statements and did not support the prosecution. Therefore, the case of the prosecution solely rested on the shoulder of Page 4 of 11 P.W.4, who indeed was the informant as well as the investigator being the Marketing Inspector. P.W.2 was the Zimadar. 6. The entire case of the petitioners rests upon the testimony of P.W.4 and the confessional statement of the co-accused persons. The Trial Court, after analyzing the evidence on record, had found that the co-accused Shyam Ghana Pujari and S.K. Dian were not found guilty for any offence as such they were acquitted. However, the present petitioners along with co-accused Manoj Kumar Khila were convicted for the offence under Section-7 of the Essential Commodities Act. 7. The petitioners were sentenced to undergo S.I. of six months each and to pay fine of Rs.5,000/- (Rupees five thousand) each in default, to undergo one month S.I. for the offence under Section 7 of the Essential Commodities Act. 8. The petitioner No.1 and the co-accused Manoj Kumar Khilla filed joint appeal before the Court of the learned Addl. Sessions Judge, Jeypore being Criminal Appeal No.3 of 2010. 9. The appellate Court vide impugned judgment dated 03.01.2011 confirmed the conviction and inter alia, recorded as under: Page 5 of 11 “4. Both sides argued their respective stand points. According to learned counsel for the appellants, the judgment of the learned lower court is contrary to law, weight of evidence and probabilities of the case and there has not been proper appreciation of evidence. His further contention is that the procedure adopted is summons procedure, where as the case ought to have been under warrant procedure. In reply to such contention learned Special P.P. submitted that there is no reason to discard the evidence of P.Ws. 2 and 4, who are the Zimadar and the I.O. of the case. No hostile animosity has been brought out so as to render their evidence inadmissible. On the other hand, the confessional statement recorded by the I.O. i.e. Marketing Inspector, vide Exts. 6, 7 and 8 are admissible in the eye of law, because the Marketing Inspector is not a police officer. Those three documents have not been challenged by the defence nor any rebuttal evidence has been put forth. In that case those three documents are admissible. No evidence has been led either before the learned lower court or before this court to show that such admission by the two appellants vide Exts-6, 7 and 8 have been obtained by inducement, threat, or promise. So as to render them inadmissible as per section-24 of the Indian Evidence Act. The statements of the two appellants vide Exts. 6, 7 and 8 are certainly their admission as defined U/S. 17 of the Indian Evidence Act. For ready reference section-17 of the Indian Evidence Act is quoted below: Admission defined – An admission is a statement, which suggest any inference as to any fact in issue or relevant facts, and which is made by any of the persons, and under the circumstances, here in after mentioned. Those admissions are relevant U/S. 11 of the Indian Evidence Act as against them. The learned Special P.P. drew my attention to the evidence of all the four prosecution witnesses. Perused the same and found that though the independent witnesses to the seizure have not supported the seizure of kerosene, but admitted their signatures on the seizure list and prosecution has not declared them as hostile. In that case, the seizure list is to be accepted as a genuine document. Similarly, the evidence of the zimadar examined as P.W.2 could not be shattered in cross-examination so as to disbelieve. He has not received in Zima the seized kerosene. If the Zimadar says to have received the kerosene under seizure from the Marketing Inspector then where is the question of suspecting the factum of seizure. Why should the Marketing Inspector purchase huge quantity of kerosene like 205 liters from different sources and falsely implicate the appellant Nos.1 and 2 for violation of Kerosene control Order, 1962. No hostile animus has been put forth by defence so as to disbelieve the Page 6 of 11 inference can be drawn against evidence of Marketing Inspector. When the appellant No.2 Manoj Kumar Khilla could not produce for inspection Books of Accounts and records relating to his kerosene business and satisfy about the distribution of 300 litres of kerosene lifted by him from Sub-whole Seller of Kotpad, he is certainly liable U/S. 7(1)(a)(i) of the E.C. Act, 1955. Admittedly, kerosene is a P.D.S. commodity which is an essential commodity. Similarly, the appellant No.1 had no authority to store 220 litres of kerosene at that point of time. He could not come up with any plausible explanation for storage of such huge quantity of kerosene i.e. beyond the permissible limit of 10 litres. Prosecution has discharged his duty by proving the seizure and zimanama. Thus, the onus shifts to the appellants to satisfy as to how NIL stock was found with appellant No.2 and 220 litres of kerosene was found with appellant No.1. When they could not discharge their duty certainly them. Under such adverse circumstances the conviction of the learned lower court appears to be just and proper. Now question arises about the procedural irregularity if any committed by the learned lower court. Since there is violation of the Kerosene Control Order, 1962 by the appellants, certainly it comes under the ambit of section 7(1)(a)(i) of the Essential Commodities Act, 1955, which provides punishment with imprisonment for a term which may extend to one year and fine. Therefore, the case has been rightly tried under Summons procedure. Learned Special P.P. submitted that if for the sake of argument it is presumed that a procedural irregularity has been crept in; either side has not raised any objection before the learned lower court. If at all the case has been tried under Summons procedure, no prejudice has been caused to the appellants and there has not occasioned miscarriage of justice. Such irregularity cannot vitiate the proceeding U/s. 461 of the CrPC. Hence, the finding and conviction of the learned lower court cannot be set aside.” 10. Heard Mr. T.K. Mishra, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 11. Mr. Mishra, learned counsel for the petitioners at the outset submitted that one of the petitioners namely M.K. Khilla has expired. Page 7 of 11 Therefore, his revision petition stands abated. He is pressing this Revision Petition qua the petitioner No.1 . Mr. Mishra, learned counsel for petitioners submitted that the judgment of conviction recorded against the petitioners was against the settled principles of law because in the instant case, P.W.4 was the informant and he had only investigated the case. Barring his evidence, there is nothing on record to prove the case against the petitioners for the alleged offence. 12. The independent witnesses namely P.Ws.1 & 3 have not supported the case of the petitioners. The prosecution attempted to derive corroboration from the testimony of P.W.4 with the alleged confession made by the co-accused persons. The subject commodity alleged to have been seized from one Shyam Ghana Pujari and S.K. Dian while they were carrying in the bi-cycle. Those two people were subjected to trial along with the present petitioner. However, the Trial Court found them not guilty of the offence. Therefore, after acquittal of those two accused persons, it was inevitable on the part of the Trial Court to let off the Page 8 of 11 present petitioner as well. However, the judgments of the Courts below are contrary. 13. Mr. Ragada, learned Addl. Government Advocate appearing for the State submitted that this was a prosecution case under the Essential Commodities Act. P.W.4 was the Marketing Inspector, who had apprehended the accused persons illegally carrying the kerosene stock beyond the permissible limit. It was seized and from the investigation, it was found that it was the present petitioner and the deceased petitioner who were responsible for possessing the commodity beyond the permissible limit. Although, P.Ws.1 & 3 had not fully supported the case of the prosecution, they had admitted the signatures in the seizure list. Therefore, the prosecution could prove the seizure as well. It is contended that, the testimony of P.W.4, the confession of the accused persons lends support to the seizure made by the prosecution. Therefore, the prosecution had proved the case beyond all reasonable doubts. 14. I have perused the evidence on record and analyzed the impugned judgments of both the Courts below. I am unable to disagree with the Page 9 of 11 reasoning recorded by the Courts below while convicting the petitioner No.1 and the deceased co-accused. Since the co-accused has already died and his revision petition is abated, I am not making any observation regarding the said petitioner. However, I am of the view that the conviction recorded by the Courts below in so far as the present petitioner is concerned, is apt in view of the unimpeachable evidence brought on record by the prosecution. 15. Having held as above, the sentence imposed against the petitioner needs to be varied in view of the fact that the incident had taken place in the year 2000. The petitioner No.1 is an elderly person. Sending him to the custody at this stage would serve no purpose. Therefore, I am inclined to extend the benefit of Probation of Offenders Act to the petitioner No.1 in the peculiar facts of this case. The Petitioner can also derive advantage of the ratio laid down by this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 16. Accordingly, instead of sentencing the petitioner No.1 to suffer imprisonment, this Court directs the petitioner No.1 to be released under Page 10 of 11 Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner No.1 shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Decision
17. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 18-Jul-2024 10:06:47 Page 11 of 11