Rabindra Kumar Das vs State Of Orissa
2024 Latest Caselaw 10868 Ori

Citation : 2024 Latest Caselaw 10868 Ori
Judgement Date : 1 July, 2024

Orissa High Court

Rabindra Kumar Das vs State Of Orissa on 1 July, 2024

Author: D.Dash

Bench: D.Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRA No.359 of 1992

          In the matter of an Appeal under Section 374(2) of the Code
    of Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 1st October, 1992 passed by the
    learned Sessions Judge-Cum-Special Judge, Balangir in II (C) C.C.
    No.4 of 1991 (T.R. No.18 of 1991).
                                    ----

        1 Rabindra Kumar Das               ....        Appellant

                                  -versus-
        State of Orissa                      ....        Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

For Appellants - Mr.J.K. Bastia (Advocate)

For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel

CORAM MR. JUSTICE D.DASH

Date of Hearing : 24.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 1st

October, 1992 passed by the learned Sessions Judge-Cum-Special

Judge, Balangir in II (C) C.C. No.4 of 1991 (T.R. No.18 of 1991).

By the impugned judgment of conviction and order of

sentence, the Appellant (accused) having been convicted for

commission of the offence under section 7 (1)(a) of the Essential

Commodities Act, 1955 (for short, 'the E.C. Act), he has been

sentenced to undergo rigorous imprisonment for three (3)

months.

2. Prosecution Case:-

On 05.12.1990, in course of checking, the Inspector of

Supplies, Balangir Sadar (P.W.1) found the Appellant (accused)

selling Kerosene Oil at Collectorate Square, Balangir. It is stated

that on demand, the Appellant could not produce the license for

selling the said Kerosene Oil. P.W.1 had weighed the said

Kerosene Oil and found that the Appellant (accused) was

possessing sixteen (16) liters of Kerosene, which was seized.

P.W.2 then submitted the Prosecution Report (P.R.) and prayed

that the Appellant be tried. That is how the trial commenced.

The Trial Court on analysis of the evidence let in by the

prosecution and the defence and on examination of the

documents admitted in evidence, has found this accused guilty

for commission of the offence under section 7 (1)(a) of the E.C.

Act for being in possession of 16 liters of Kerosene oil without

any authority as required under law and sentenced as afore-

stated.

3. Learned counsel for the Appellant (accused) submitted that

the Trial is vitiated for non-compliance of the provision contained

in section 251 of the Code of Criminal Procedure, 1973 (for short,

'the Code') read with section 262 of the Code in its letter and

spirit as mandated under law. Inviting the attention of this Court

to the order dated 09.10.1991 passed by the learned Sessions

Judge-Cum-Special Judge, he stated that the same is not in

compliance with the provision contained in section 251 read with

section 262 of the Code and, therefore, the accused, having been

highly prejudiced, the outcome of the Trial based on such order

cannot be sustained.

4. Learned Additional Standing Counsel for the Respondent-

State submitted that the order when is read as a whole would

show substantial compliance of the provision contained in section

251 read with section 262 of the Code and the Court should

refrain from taking a hyper technical approach in arriving at the

conclusion as regards the compliance of the provision contained

in section 251 of the Code.

5. Keeping in view the submissions made; I have carefully

read the order dated 09.10.1991 which has been passed by the

Trial Court as in adherence to the provisions of Section 251 & 262

of the Code.

6. As provided in Clause-f of Sub-section 1 of section 12-AA of

E.C. Act, all the offences under the Act are to be tried in a

summary way and the provisions contained in section 262 to 265

(both inclusive) of the Code shall as far as may be, apply to such

trial, when there shall not be the requirement to frame charge.

The provision contained in Sub-section 1 of Section 262 of the

Code says that the procedures for trial of the summons-case shall

be followed. Therefore, the legal need stands for compliance of

the provision of section 251 of the Code for commencement of the

Trial. It reads that the accused when appears or is brought before

the Magistrate, the particulars of the offence of which, the

accused are accused of required to be stated to him/there and

then he/they is/are required to be asked whether he/they

pleads/plead guilty or has/have any defence to make.

In the backdrop of the above, the order dated 09.10.1991,

being gone through, simple the noting that the particulars of the

offences under section 7 of the E.C. Act are read over and

explained to the accused persons, who pleaded not guilty, the

Trial was proceeded.

Section 7 of the E.C. Act provides the penalty for

contravention of any order made under section 3 of the E.C. Act.

In the case at hand, the contravention, as alleged, is in relation to

the Orissa Kerosene Control Order, 1962, which provides in

Clause-3 that no person other than a wholesale dealer and a sub-

wholesale dealer under parallel marketing system shall carry on

business as a wholesale dealer or a sub-wholesale dealer within

the State of Odisha except under and in accordance with the

terms and conditions of a licence granted in that behalf by the

licensing authority.

So, as per the prosecution case, this accused was in

possession of the Kerosene Oil without having the required

license. The order in question reads as under:-

"Hence, particular of offences under section 7 of the E.C. Act read over and explained to the accused Basanti Jena and the representation lawyer to which they pleaded not guilty and claim to be tried."

A bare reading of the aforesaid order would reveal that the

provision of section 251 of the Code has not at all been complied

with in as much as the relevant clause of the relevant Control

Order for whose violation the accused is said to have committed

the offence under section 7 of the E.C. Act have neither been

mentioned nor even the facts, which constitute such violation are

stated therein.

In that view of the matter, for non-compliance of the

provision of section 251 read with section 262 of the Code, the

prejudice to the accused persons is writ large and thus, the

outcome in the Trial wherein the Trial Court has passed the

judgment of conviction and order of sentence cannot be sustained