Govinda Shaw; And vs State Of Orissa
2024 Latest Caselaw 10875 Ori

Citation : 2024 Latest Caselaw 10875 Ori
Judgement Date : 1 July, 2024

Orissa High Court

Govinda Shaw; And vs State Of Orissa on 1 July, 2024

Author: D.Dash

Bench: D.Dash

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRA No.361 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 23rd September, 1992 passed by the
    learned Special Judge, Sundergarh in G.R. Case No.1421 of 1991
    (T.R. No.9 of 1991).
                                   ----

        1 Govinda Shaw; and                ....        Appellants
        2. Jainandan Shaw

                                 -versus-
        State of Orissa                     ....      Respondent

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

For Appellants - Mr.Abhash Mohanty (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 Appellants, by filing this Appeal, have called in

question the judgment of conviction and order of sentence dated

23rd September, 1992 passed by the learned Special Judge,

Sundergarh in G.R. Case No.1421 of 1991 (T.R. No.9 of 1991).

By the impugned judgment of conviction and order of

sentence, the Appellants (accused persons) having been convicted

for commission of the offence under section 7 of the Essential

Commodities Act, 1955 (for short, 'the E.C. Act). Accordingly,

each of them has been sentenced to undergo rigorous

imprisonment for one (1) year and pay fine of Rs.5,000/- (Rupees

Fine Thousand) in default to undergo rigorous imprisonment for

three (3) months for commission of the said offence.

2. Prosecution Case:-

One Basanti Jena (since acquitted) was the retail dealer of

Kerosene at Tilkanagar 'C' Block under Bandomunda Police

Station. On 13.09.1991 and on 13.09.1991, she was supplied with

the Kerosene oil from the depot for their onward sale to the

consumers. It is alleged that around 10.30 p.m., these accused

persons were found by the villagers to be carrying Kerosene oil in

a rickshaw and on being asked, they confessed to have purchased

the same from the retail shop owner, Basanti Jena. The police was

informed on the next day by one of the villagers and case being

registered, on being apprised of the above facts in writing by the

villagers, the investigation commenced.

Finally, on completion of the investigation, these accused

the persons as well as that Basanti Jena (since acquitted) faced the

Trial.

The Trial Court, having acquitted that Basanti Jena, has

found these accused persons guilty for commission of the offence

under section 7 of the E.C. Act for being in possession of 80 liters

of Kerosene oil without any authority as required under law.

3. Mr.Abhash Mohanty, learned counsel for the Appellants

(accused persons) 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

06.05.1992 passed by the learned 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

persons, having been highly prejudiced, the outcome of the Trial

based on 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 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 06.05.1992 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 necessity 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 06.05.1992,

being gone through, it is found that the accused to have been

simply noted 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.

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, to be 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 Orissa 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, these accused persons were

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 persons are said to have

committed the offences under section 7 of the E.C. Act have not

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