Orissa High Court
Kotini Someswar Rao vs State Of Orissa on 1 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.385 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 13th November, 1992 passed by the
learned Session Judge-Cum-Special Judge, Ganjam, Berhampur in
G.R. No.9 of 1990 (V) (T.R. No.6 of 1990).
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Kotini Someswar Rao .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.A.K. Mishra, B. Sahoo,
A.K. Sahoo & P.K. Mishra
(Advocate)
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 21.06.2024 : 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 13th
November, 1992 passed by the learned Session Judge-Cum-
Special Judge, Ganjam, Berhampur in G.R. No.9 of 1990 (V) (T.R.
No.6 of 1990).
By the impugned judgment, the Appellant (accused) has
been convicted for commission of the offence under section
7(1)(a)(ii) of the Essential Commodities Act, 1955 (for short, 'the
E.C. Act). Accordingly, he has been sentenced to undergo simple
imprisonment for one (1) year and pay fine of Rs.1,000/- (Rupees
One Thousand) in default to undergo simple imprisonment for
two (2) months for commission of the said offence.
2. Prosecution Case:-
The accused is the sole proprietor of M/s.Somasekhar
Traders, Marthapeta Street, Berhampur. He has to godowns; one
situated in Beeraka Sahi, Berhampur and the other at Jaura Street,
Berhampur. It is alleged that during raid made by the Inspector
of Vigilance, Berhampur (P.W.8) with his other staff as also the
staff of Civil Supplies Department, the accused was found to have
stored 2116 quintals of Pulses including Grams, 105 quintals of
Soda Ash and 171.75 quintals of Edible Oils in the business
premises and the godowns of the accused. Thus, it is stated that
the accused had stored the said quantity of Pulses including
Grams in contravention of 4 (i) of Pulses, Edible Oil Seeds and
Edible Oils (Storage Control) Order, 1977 (for short, 'the Central
Order) and clause 3 of the Odisha Declaration of Stocks and
Prices of Essential Commodities Act, 1973 (for short, 'the State
Control Order')
Finally, on completion of the investigation, the faced the
Trial.
The Trial Court has found the accused guilty for
commission of the offence under section 7(1)(a)(ii) of the E.C. Act
for violating Clause-3 of the Central Order Control Order and
Clause 3 (2) of the State Control Order.
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 25.04.1991 passed by the learned Session
Judge-Cum-Special Judge, he contended that the same is not in
compliance of 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 proceeding with such
order cannot be sustained.
4. Mr.P.K.Mohanty, learned Additional Standing Counsel for
the Respondent-State submitted that the order when is read as a
whole would amount to substantial compliance of the provision
contained in section 251 read with section 262 of the Code and the
Court should refrain from making 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 25.04.1991 which is projected to be not in
compliance of the provision of Section 251 read with section 262
of the Code, vitiating the Trial.
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 with the rider that in that case the Special Court can lawfully
sentence the accused for imprisonment for a term up to two
years. The provision contained in Sub-section 1 of Section 262 of
the Code says that in such trial in summary way, the procedure
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, he/she is accused of accused are required
to be stated to him/her and then he/she is required to be asked
whether he/she pleads guilty or has any defence to make.
7. In the backdrop of the above, the order dated 25.04.1991,
being gone through, it is seen to have been noted therein that
particulars of the offences under section 7 of the E.C. Act are read
over and explained to the accused, who pleaded not guilty.
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
clause of Control Orders; one is in relation to Central Control
order and the other one refers to the State Control Orders.
"Particular of offences are read over and explained to
the accused, who plead not guilty and claims for trial."
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 and State Control Order for whose violation the accused is
said to have committed the offence under section 7 of the E.C. Act
have not been mentioned nor the facts, which constitute such
violations are indicated.
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 wherein the Trial Court has passed the judgment of
conviction and order of sentence cannot be sustained as the Trial
stands vitiated.
8. For the said reason, in my view the judgment of conviction
and order of sentence challenged in this Appeal cannot be
sustained. Since in the given case, it is found that the offence,
being said to have been committed on 06.04.1990, the trial stood
concluded on 13.11.1992 and as by now, there has been lapse of
more than 31 years and 6 months, in my considered opinion, it
would not be in the interest of justice, at this distance of time to
pass an order for retrial.
9. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 13th November, 1992
passed by the learned Session Judge-Cum-Special Judge, Ganjam,
Berhampur in G.R. No.9 of 1990 (V) (T.R. No.6 of 1990)., are
hereby set aside.
(D. Dash),
Judge.
Basu
Location: HIGH COURT OF ORISSA : CUTTACK
