Orissa High Court
Manoj Kumar Mohanty vs State Of Odisha on 14 December, 2023
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRA No.20 of 2001
From the judgment and order dated 21.12.2000/24.01.2001
passed by Special Judge, Rairangpur, Mayurbhanj in G.R. Case
no.306 of 1999 (T.C.No.01 of 2000).
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Manoj Kumar Mohanty ....... Appellant
-Versus-
State of Odisha ....... Respondent
CRA No.21 of 2001
Narendra Sethi ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Anshuman Ray
(Both the cases)
For Respondent: - Mr. Manoranjan Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 14.12.2023
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S.K. Sahoo, J. The appellant Manoj Kumar Mohanty in CRA No.20 of
2001 and the appellant Narendra Sethi in CRA No.21 of 2001
faced trial in the Court of learned Special Judge, Rairangpur,
Mayurbhanj in G.R. Case no.306 of 1999 (T.C.No.01 of 2000) for
the offence punishable under section 7 of the Essential
Commodities Act, 1955 (hereafter >E.C. Act?) for contravention of
the provisions under clause 3(1) of the E.C. Act and clause 8 of
the Orissa Rice and Paddy Control Order, 1965 (hereafter >1965
Order?).
The learned trial Court vide impugned judgment and
order dated 21.12.2000/24.01.2001 found both the appellants
guilty of the offence charged and sentenced each of them to
undergo rigorous imprisonment for a period of three months and
to pay a fine of Rs.500/- (rupees five hundred) each, in default,
to undergo further R.I. for a period of seven days.
Since both the appeals arise out of one common
judgment, with the consent of learned counsel for both the
parties, those were heard analogously and are disposed of by
this common judgment.
2. The case of the prosecution, as per the written report
(Ext.3) submitted by P.W.2 Swapneswar Mishra, the Marketing
Inspector, Bisoi on 01.09.1999 before the officer in-charge of
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Bisoi police station, in short, is that on 01.09.1999 at about 1.00
p.m. while he was moving in Bisoi market, the villagers of
Asansikal namely, Biswaswar Sethi, Chandra Mahakud (P.W.3)
and others of village Makhani Bahagida gave a petition to him at
about 1.00 p.m. to the effect that appellant Narendra Sethi of
village Asansikal was proceeding in his cycle by collecting rice
from the Secretary, Bisoi Gram Panchayat retail shop which was
located at the weekly hat padia of market complex shop no.7
without ration card. They detained the appellant Narendra Sethy
with his cycle and rice. When P.W.2 asked the appellant
Narendra Sethi about the authority of possession the rice, the
appellant could not produce any document in support of the
same except one A.P.L. card bearing No.229827 in which no
entry was made about the supply of rice on 01.09.1999. He also
verified the sale register of Bisoi Grama Panchayat and noticed
that the Secretary had issued one quintal of rice in five ration
cards vide nos.229999 of Rabindra Sethi (Ext.9), 229925 of Siba
Sethi (Ext.10), 229918 of Subasini Sethi (Ext.11), 229923 of the
appellant Narendra Sethi (Ext.12) and 229927 A.P.L. Card of
Gangadhara Sethi (Ext.5) @ 20 kgs. per card. In this way, the
Secretary had given one quintal of rice to the appellant Narenda
Sethi. P.W.2 also verified the sale register of the Secretary of
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Bisoi G.P. who had issued 20 Kgs. of rice of A.P.L. rice in card
no.229927. The appellant Narendra Sethi could not produce the
ration cards in support of the B.P.L. category for which P.W.2
seized one quintal of rice, one bi-cycle and one A.P.L. card
bearing no.229827 from the appellant. He also seized sale
registers on production by the appellant Manoj Kumar Mohanty,
Secretary of Bisoi Gram Panchayat.
On receipt of such written report, P.W.6 Dhiren
Chandra Nanda, the O.I.C., Bisoi police station registered Bisoi
P.S. Case No.62 dated 01.09.1999 under section 7 of the E.C.
Act for contravention of section 3(1) of the E.C. Act and Clause 8
of the 1965 Order and directed P.W.7 Golaka Behari Biswal to
take up investigation of the case. P.W.7 seized one quintal of
control B.P.L. rice with a gunny bag loaded on a bi-cycle, A.P.L.
card of Gangadhar Sethi, sale registers as per seizure list Ext.19
and examined other witnesses and again on 03.09.1999, P.W.6
took over charge of investigation from P.W.7. The B.P.L. cards
vide Exts.9, 10, 11 and 12 were seized by P.W.6 on being
produced by the appellant Narendra Sethi as per seizure list
Ext.17 on 11.09.1999 and the appellant was arrested and the
B.P.L. cards were left in the zima of the said appellant Narendra
Sethi as per zimanama Ext.18 and the appellant Narendra Sethi
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was forwarded to Court on 12.09.1999 and on 20.10.1999,
P.W.6 handed over the charge of investigation to his successor
P.W.5 Narendra Nath Das, who left the seized rice in the zima of
P.W.2 as per zimanama Ext.14. He also seized the tally register
on being produced by appellant Manoj Kumar Mohanty as per
seizure list Ext.15 and on completion of investigation, charge
sheet was submitted on 24.12.1999 under section 7 of the E.C.
Act against both the appellants.
3. The defence plea of the appellant Manoj Kumar
Mohanty is that the appellant had taken one quintal of B.P.L. rice
from him for five persons, who were the B.P.L. card holders. The
defence plea of appellant Narendra Sethi is that he had taken
one quintal of B.P.L. rice from the appellant Manoj Kumar
Mohanty for the B.P.L. card holders.
4. In order to prove its case, the prosecution examined
seven witnesses.
P.W.1 Birsing Nayak did not support the prosecution
case for which he was declared hostile.
P.W.2 Swapneswar Mishra was the Marketing
Inspector, Bisoi, who is also the informant in the case and he
had seized the rice and some documents from the possession of
the appellants.
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P.W.3 Chandra Mahakud stated about the seizure of
one quintal of rice, one cycle and some consumer cards by P.W.2
from the possession of appellant Narendra Sethi as per seizure
list Ext.2.
P.W.4 Chandra Sekhar Mohanty was the B.D.O., Bisoi
Block, who stated that appellant Manoj Kumar Mohanty had
given one quintal of rice to appellant Narendra Sethi in five
numbers of consumer cards and further stated that P.W.2 seized
the sale register from appellant Manoj Kumar Mohanty as per
seizure list Ext.1.
P.W.5 Narendra Nath Das, P.W.6 Dhiren Kumar
Nanda and P.W.7 Golakh Bihari Biswal are the three
Investigating Officers of the case.
One Naran Naik was examined as D.W.1 to
substantiate the plea taken by the appellants and he stated that
P.W.2 had falsely implicated the appellants in the case. He
further stated that five B.P.L. card holders with their consumer
cards had come to Panchayat on 01.09.1999, received the B.P.L.
rice from the Panchayat and then they kept all the rice in one
bag and stitched the bag and loaded the bag in the cycle of
appellant Narendra Sethi and at that time, P.W.2 came, detained
the bag and even though the B.P.L. card holders showed their
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respective cards to P.W.2, but the same was not accepted and
P.W.2 took the full bag of rice and appellant Narendra Sethi to
his office. He further stated that each of the B.P.L. card holders
took 20 kgs. of rice for two months as they had not received any
rice in the previous month.
5. The learned trial Court after analysing the evidence
of P.Ws.2, 3 and 4 came to hold that appellant Manoj Kumar
Mohanty had misappropriated 20 kgs. of rice of one Gangadhar
Sethi and though he had entered the rice in the sale register on
01.09.1999 but in the A.P.L. card of Gangadhar Sethi, no entry
was made in that respect. It was further held that the appellant
Narendra Sethi had brought the cards of the B.P.L. card holders
and received 80 kgs. of rice from the appellant Manoj Kumar
Mohanty with his connivance and while he was transporting the
same, he was detained by the villagers. The learned trial Court
further held that in view of the evidence of P.W.4 that one
person could not take one quintal of rice of five consumer card
holders, the accusation against the appellants have been proved
not only through the evidence of P.Ws.2 and 3 but also P.W.4.
The learned trial Court further held that without entering the sale
of rice in five consumer cards, appellant Manoj Kumar Mohanty
entered the sale in the sale register and had given the rice in
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question to the appellant Narendra Sethi and therefore, violating
the term and condition of section 3(1) of the E.C. Act and clause
8 of 1965 Order, the appellant Narendra Sethi had taken one
quintal of rice and appellant Manoj Kumar Mohanty had given the
said rice to appellant Narendra Sethi on 01.09.1999. The learned
trial Court disbelieved the evidence of D.W.1 and came to the
conclusion that the prosecution established its case against the
appellants beyond all reasonable doubt as the appellant Manoj
Kumar Mohanty sold one quintal of rice illegally to appellant
Narendra Sethi with malafide intention and accordingly, found
both the appellants guilty under section 7 of the E.C. Act.
6. Mr. Anshuman Ray, learned counsel for the
appellants contended that not only the charge is defective but
also there is no clinching evidence that any illegality has been
committed by appellant Manoj Kumar Mohanty in selling the rice
in question and appellant Narendra Sethi receiving the rice for
five B.P.L. card holders and when the prosecution has not
examined any of the B.P.L. card holders and D.W.1, the B.P.L.
card holder stated not only about the receipt of the rice by B.P.L.
card holders but also keeping the same in one bag and then
loading it in the cycle of appellant Narendra Sethi, it cannot be
said that merely because the appellant Narendra Sethi was found
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transporting the same, the ingredients of offence are attracted
against him so also against the appellant Manoj Kumar Mohanty
and therefore, it is fit case where benefit of doubt should be
extended in favour of the appellants.
Mr. Manoranjan Mishra, learned Additional Standing
Counsel, on the other hand, supported the impugned judgment
and contended that in view of the oral as well as documentary
evidence, the learned trial Court has rightly come to conclusion
that the prosecution has established the charge under section 7
of the E.C. Act against the appellants and therefore, the appeals
should be dismissed.
7. Adverting to the contention raised by the learned
counsel for the respective parties, let me now deal with the
framing of the charge against the appellants.
The charge framed against the appellants reads as
follows:-
<That, you on or about 1st day of September,
1999 at about 1.00 p.m. at Bisoi market
building, room no.7 have misappropriated 100
kgs. of B.P.L. rice in contravention of clause 3(1)
of E.C. Act and clause 8 of Orissa Rice and
Paddy Control Order, 1965 and thereby
committed an offence punishable under section
7 of the E.C. Act within my cognizance.=
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The charge was framed on 28.02.2000 and it was
read over and explained to the appellants to which they pleaded
not guilty and claimed for trial.
Section 212 of Cr.P.C. states about the particulars as
to the time and place of the alleged offence, and the person (if
any) against whom or the thing in respect of which, the offence
was committed are to be reflected in the charge, which are
reasonably sufficient to give the accused notice on the matter
with which he is charged. It further states, inter alia, that if the
accused is charged with dishonest misappropriation of movable
property, it shall be sufficient to describe the movable property
in respect of which the offence is alleged to have been
committed and the dates between which the offence is alleged to
have been committed, without specifying particular items or
exact dates.
The object in framing the charge is to give notice of
the essential fact which the prosecution proposes to establish to
bring home charge to the accused so that he may not be
prejudiced in his defence. Section 464 Cr.P.C. states, inter alia,
that no finding, sentence or order by a Court of competent
jurisdiction shall be deemed invalid merely on the ground of any
error, omission or irregularity in the charge unless in the opinion
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of the Court of appeal, a failure of justice has in fact been
occasioned thereby. In a criminal trial, a defective charge did not
necessarily vitiate a criminal trial and result in the acquittal of
the accused unless it was shown that any such defect had
prejudiced him. Omission to give particulars in the charge will be
cured by section 465 Cr.P.C. unless the defect occasions a failure
of justice. The question of prejudice is ultimately one of the
inference from all the facts and circumstances of each case. The
reasonableness of the notice is the criterion by which the validity
of the charge must be judged and this much depends in each
case on the circumstances.
After going through the framing of the charge, it
appears that not only the date and time and place of commission
of offence has been mentioned but the quantity of the
misappropriated B.P.L. rice has also been mentioned. It is also
mentioned as to what provisions of E.C. Act and 1965 Order
have been contravened and what offence is stated to have been
committed by the appellants. A fair trial to the accused is a sine
quo non in the criminal justice system, but at the same time,
procedural law contained in the Code of Criminal Procedure is
designed to further the ends of justice and not to frustrate them
by introduction of hyper-technicalities. In my humble view, there
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is no illegality or irregularity in framing of the charge by the
learned trial Court and the manner in which the charge has been
framed, the appellants have got sufficient notice of the matter
with which they are charged and therefore, the contention raised
by the learned counsel for the appellants on this score is not
acceptable.
8. In the case in hand, in view of the stand taken by the
appellants in the accused statement, it is apparent that the
appellant Manoj Kumar Mohanty, the Secretary of Bisoi Gram
Panchayat had sold one quintal of rice and the appellant
Narendra Sethi was taking the said rice for five B.P.L. card
holders.
P.W.2, the informant has stated that he has checked
the sale centre and found that the appellant Narendra Sethi had
given an endorsement that he was carrying one quintal of rice in
four B.P.L. cards and one A.P.L. card and on his enquiry, he also
found that the appellant Manoj Kumar Mohanty had given one
quintal of rice in four B.P.L. cards and one A.P.L. card to
appellant Narendra Sethi and appellant Manoj Kumar Mohanty
had entered this in his sale register. The cards of the B.P.L. card
holders were also seized as per seizure list Ext.17 and the
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consumer card numbers are 229999 (Ext.9), 229925 (Ext.10),
229918 (Ext.11) and 229923 (Ext.12).
P.W.3 has stated that if any old person or any person
is unable to bring rice, one man can take rice from the sale
centre for other persons. He further stated that there was no bus
communication from Asansikala to Bisoi and they were going by
cycle or foot.
P.W.4, the B.D.O. of Bisoi Block has stated that
though at the spot the appellant Narendra Sethi could not
produce the B.P.L. cards in support of the possession of rice but
subsequently, he produced the cards after getting the same from
appellant Manoj Kumar Mohanty and the B.P.L. cards stood in
the name of Rabindra Sethi, Narendra Sethi, Siba Sethi and
Subasini Sethi. He has further stated that five persons were
coming in one time and while taking one quintal of rice in one
bag for their convenience, they were distributing the said
quantity of rice in their village in five shares. He further stated
that the appellant Narendra Sethi had taken one quintal of rice
from appellant Manoj Kumar Mohanty of his villagers for better
movement of the rice.
The prosecution has not examined any of the B.P.L.
card holders. It was the duty of the prosecution to examine them
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to show whether they had authorized the appellant Narendra
Sethi to receive rice on their behalf from the appellant Manoj
Kumar Mohanty or that the said appellant Narendra Sethi had
illegally taken away their B.P.L. cards and in connivance with the
appellant Manoj Kumar Mohanty, received the rice for illegal sale
and thereby the offence of misappropriation has been
committed.
D.W.1 Naren Naik has stated that on 01.09.1999, he
had been to bring his B.P.L. rice from the Panchayat and at that
time, Narendra Sethi, Siba Sethi, Subasini Sethi, Rabi Sethi and
Narayan had come with him to Bisoi to take B.P.L. rice and then
they all kept the rice in one bag and the bag was loaded in the
cycle of appellant Narendra Sethi and all the B.P.L. card holders
were present and they had shown their respective cards to
P.W.2, which were not accepted and P.W.2 took the full bag rice
and the appellant Narendra Sethi to his office. He specifically
stated that since in the previous month, they had not received
any rice, for two months at a time 20 kgs. rice was given to one
consumer card holder. Except putting one question in the cross-
examination by the learned Special Public Prosecutor that he was
deposing falsely at the instance of the appellant Narendra Sethi,
nothing has been elicited further to disbelieve the evidence of
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D.W.1. Law is well settled that while judging the veracity of
witnesses, there cannot be any different yardstick for judging the
prosecution witnesses or defence witnesses and the defence
witnesses are to be given equal treatment with the prosecution
witnesses. The Courts must overcome their traditional and
instinctive disbelief of the defence witnesses. Equal weight is to
be attached to the prosecution witness so also defence witness
and merely because a witness is examined on behalf of the
defence, he cannot be said to be an unreliable and untruthful
witness.
No question has been put in the accused statement
to any of the appellants as to whose consumer cards were
utilized for taking one quintal of rice for misappropriation of the
same. It was the duty of the learned trial Court to put questions
to the appellants as to in respect of which B.P.L. cards/A.P.L.
card the rice was received/misappropriated. No question has also
been put to any of the appellants that the consumer cards which
were used in taking the seized rice were not containing any entry
relating to the sale of rice.
Law is well settled that the examination of the
accused under section 313 Cr.P.C. is not a mere formality, the
questions put and the answers given have great use and the
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accused must be given opportunity to explain each and every
circumstance appearing in evidence against him. If a particular
incriminating material is not put to the accused calling upon him
either to admit or to deny or to explain the same, it can be never
be used against the accused. Any circumstance in respect of
which an accused was not examined under section 313 Cr.P.C., it
cannot be used against him as omission is likely to cause serious
prejudice to the accused.
In view of the foregoing discussions, I am of the
humble view that when material witnesses on behalf of the
prosecution have been withheld and the defence plea seems to
be more acceptable, which also gets corroboration from the
prosecution witnesses like P.W.3 and P.W.4 and there is no
clinching evidence that the appellant Narendra Sethi while
carrying the rice of five B.P.L. card holders has committed the
act of misappropriation in connivance with the appellant Manoj
Kumar Mohanty and when material questions have not been put
in the accused statement, it cannot be said that the prosecution
has successfully established the charge under section 7 of the
E.C. Act against the appellants.
In the result, the Criminal Appeals are allowed. The
impugned judgment and order of conviction of the appellants
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under section 7 of the E.C. Act is hereby set aside. The
appellants are on bail by virtue of the order of this Court. They
are discharged from the liability of their bail bonds. The personal
bonds and the surety bonds stand cancelled.
..........................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 14th December 2023/RKMishra
Signed by: RABINDRA KUMAR MISHRA
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 14-Dec-2023 14:39:27
