Orissa High Court
From The Judgment Dated ... vs State Of Odisha on 6 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 309 of 1993
From the judgment dated 14.09.1993 passed by Sri P.K.
Tripathy, Special Judge, Puri convicting the appellant U/s. 7 of
the Essential Commodities Act.
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Bhubaneswar Sahu ...... Appellant
-Versus-
State of Odisha ....... Respondent
Advocate(s) appeared in this case :-
_______________________________________________________
For Appellant : Ms. Bini Mishra,
K. Bishoi, N. Jena
P.K. Mishra, D. Patnaik
D.P. Pradhan & S. Swain
Advocates
For Respondent : Mr. S.K. Mishra,
[Addl. Standing Counsel]
_______________________________________________________
CORAM:
MR. JUSTICE SASHIKANTA MISHRA
JUDGMENT
06.04.2023
SASHIKANTA MISHRA, J.
Learned State Counsel submits on instructions that
the appellant is alive. The appeal is therefore, taken up for
hearing.
2. The appellant calls in question the correctness of
judgment of conviction and sentence passed by learned
Special Judge, Puri on 14.09.1993 in T.R. Case No. 11 of
1991 whereby he was convicted under Section 7 of the
Essential Commodities Act and sentenced to undergo R.I.
for three months and to a fine of Rs. 1000/-, in default, to
undergo further R.I. for one month.
3. The prosecution case, briefly stated is as follows:-
One Bhramar Baral lodged written report before
Odagaon Police Station on 10.09.1990 alleging therein
that the Secretary and Peon of Goudaput Service Co-
operative Society, namely, Bhubaneswar Sahu and
Trinath Acharya respectively were carrying two tins of
Palmolein oil for the purpose of selling the same on black
market. One Dilip Kumar Partra was also accompanying
them and he was carrying the Palmolein tins on his head
and that time, one Upendra Kumar Prusty accosted them
whereupon Dilip Kumar Patra kept the tins on the ground
and ran away after pushing Upendra Kumar Prusty. This
incident was witnessed by other villagers, namely,
Chakradhar Pradhan and Aintha Pradhan etc. The
informant being the president of the village committee
reported the matter at the police station. Basing on such
report, Nayagarh P.S. No. 74 (6) 1990 was registered
under Section 7 of the E.C. act followed by investigation.
On completion of investigation charge sheet was
submitted against the present petitioner only.
4. The plea of the accused, apart from denial is of false
implication by police as he did not accede to their
requests for gratification.
5. To prove its case the prosecution examined six
witnesses out of whom P.W.1 is the Peon, Trinath
Acharya, P.W.3 is the informant, P.W.5 is the person who
is said to have detected the offence and P.W.6 is the I.O.
The prosecution also proved five documents. Defence did
not adduce any evidence, either oral or documentary.
6. On consideration of the evidence on record and rival
contentions raised, the trial Court found that the accused
had contravened the provision under Clause-3 of Orissa
Imported Edible Oil (Prohibition of Unauthorised Sale)
Order, 1989 and therefore, held him guilty. The accused
was thus convicted and sentenced as already stated
hereinbefore.
7. Heard Ms. Bini Mishra, learned counsel for the
appellant and Mr. S.K. Mishra, learned counsel for the
State
8. It is contended that by Ms. Mishra that the findings
of the trial court are entirely perverse and unacceptable
for the reason that the main witness who is said to have
detected the occurrence, namely, Upendra Kumar Prusty
being examined as P.W.5 did not whisper anything about
the occurrence in his evidence. Moreover, P.W.1, on whose
evidence the trial court relied upon heavily, gave a version
which is completely contrary to the FIR story as well as
the version of the informant P.W.3. Further, P.W. 3 also
deposed in a manner contrary to the FIR story. According
to Ms. Mishra, the case was not proved beyond reasonable
doubts and therefore, the impugned judgment warrants
interference.
9. Mr. S.K. Mishra, learned State Counsel, on the other
hand, submits that it was clearly proved that the accused
being the Secretary of the Service Co-Operative Society
was authorized to deal in Palmolein oil, but the same were
meant for distribution among the public. At the time of
the occurrence however, he was found to be in position of
two tins of Palmolein oil without any justified reason. The
evidence on record clearly proves the presence of the
accused and possession of the oil tins at the relevant time.
10. The FIR story being as narrated hereinbefore it would
be proper to first look at the evidence of the informant
who was examined as P.W. 3. He testified that on the date
of occurrence while he was in his house at about 7.30.
P.M. being informed by the co-villager, Prabhat Chhatoi
regarding detection of the case, he came to the spot where
he found that the villagers had detained the accused and
two tins of Palmolein oil with sealed packet kept in a
gunny bag. This statement of P.W. 3 is entirely contrary to
the FIR story inasmuch as the FIR does not contain any
reference to Prabhat Chhatoi at all. Moreover, there is
nothing in the FIR to show that the accused had been
detained by the villagers. On the contrary, the allegation
appears to be directed more against Dilip Kumar Patra.
Surprisingly, Dilip Kumar Patra was not charge sheeted. It
is also mentioned in the FIR that one Upendra Kumar
Prusty was the first person to detect the alleged offence.
He was examined as P.W.5. In his evidence he simply says
that he had seen the accused coming on a by-cycle and a
gunny bag being loaded in his carrier. He further stated
that Trinath Acharya (P.W.1) and Dilip Kumar Patra,
Salesman were with him. This is also contrary to the FIR
story as per which, Dilip Kumar Patra was carrying the
Palmolein oil tins on his head. That apart, the other
persons who was present at the spot, namely, Trinath
Acharya who was examined as P.W.1 deposed that one
Nanda Kishore Prusty and other villagers had caught the
accused and Dilip. What is even more surprising is that
while Dilip Kumar Patra was not charge sheeted yet, the
prosecution did not deem it proper to examine him as a
witness. The other persons named in the FIR, namely,
Chakdradhar Pradhan and Aintha Pradhan who
apparently saw the occurrence were not examined as
witnesses. P.W. 2 is a seizure witness not an eyewitness.
One Prabhat Chhatoi was examined as P.W.4. He gave a
completely different version inasmuch as according to him
while he was going to tuition on the road at about 100
cubits away from the society office, he saw two tins of
Palmolein oil in a gunny bag being kept on the road and
that scuffle was going on between Upendra Kumar Prusty
(PW.5) and the accused.
Having regard to the nature of the accusations it is
not possible to reconcile all these apparently different
accounts given by the different witnesses about the same
occurrence.
11. A reading of the impugned judgment reveals that the
trial court has placed undue reliance on the evidence of
PW.1 without taking note of the above referred material
contradictions. In short, it can be said that this is a case
where the prosecution story is not free from reasonable
doubts, the benefit of which ought to have gone to the
accused. Under such circumstances, the order of
conviction passed against the accused becomes vulnerable
and unsustainable.
12. For the foregoing reasons therefore, this Court finds
merit in the contentions raised on behalf of the appellant
and holds that the impugned judgment of conviction and
sentence cannot be sustained in the eye of law.
Resultantly, the appeal is allowed. The impugned
judgment of conviction and sentence is hereby set aside.
The appellant being on bail, his bail bond be discharged.
(Sashikanta Mishra)
Judge
Orissa High Court, Cuttack,
Dated the 6th April. 2023, B.C. Tudu, Sr. Steno
