Orissa High Court
Gurucharan Mishra vs State Of Orissa on 1 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.160 of 1999
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 25th June, 1999 passed by the learned
Sessions Judge-cum-Special Judge, Sundargarh in T.R. Case
No.21 of 1996 (GR Case No.189 of 1996).
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Gurucharan Mishra .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - M/s.A. Mohanty,
(Advocate)
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM
MR. JUSTICE D.DASH
Date of Hearing : 25.06.2024 : 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 25th June,
1999 passed by the learned Sessions Judge-cum-Special Judge,
Sundargarh in T.R. Case No.21 of 1996 (G.R. Case No.198 of
1996).
The Appellant has been convicted for commission of
offence under section 7 of the Essential Commodities Act, 1962
(hereinafter referred to as 'the E.C.Act') and he has been
sentenced to undergo rigorous imprisonment for one year and
pay fine of Rs.1,000/- in default to undergo rigorous
imprisonment for two month.
2. Prosecution case is that the accused was a Sub-Whole Sale
Dealer of Kerosene Oil for the year 1995-96 and he was having
licensed shop at Kinjirkela. It is stated that on being asked by the
Sub-Collector, Sundargarh, the then Block Development Officer-
cum-Executive Magistrate Tangerpali had inspected the shop of
the accused on 06.04.1996. On verification of the stock, it was
found that he was having shortage of stock in hand to the extent
of 400 liters as against the stock at hand as reflected in the register
at 600 liters. Since the accused failed to explain the said shortage
of Kerosene Oil at hand, information in writing was submitted by
the Supply Inspector (P.W.4) with the Officer-in-Charge of
Kinjirkela Police Station (P.W.10). The case being registered, on
completion of investigation Final Form was submitted placing the
accused to face the trial for commission of offence under section 7
of the E.C. Act.
3. The Trial Court having examined the evidence on record
and on going through the documents admitted on behalf of the
prosecution, upon their analysis held the prosecution to have
proved its case that at the relevant time of checking, there was
stock of only 200 liters of Kerosene Oil with the accused as
against the required as per the register at 600 liters and thus a
shortage of 400 liters of kerosene oil. With the said finding, the
accused has been convicted under section 7 of the E.C. Act and
sentenced as afore-stated.
4. Mr. A. Mohanty, learned counsel for the Appellant
submitted that the charge framed in the case is wholly defective
and it is such that same is not curable for which grave prejudice
has been caused to the accused. He, therefore, submitted that the
final outcome of the trial on the basis of said charge cannot be
sustained. He next submitted that even the evidence on record do
not establish the fact beyond reasonable doubt that the accused
had acted in violation of the condition of the license in possessing
less stock of Kerosene Oil then what he was to possess.
5. Mr. P. Mohanty, learned Additional Standing Counsel
while supporting the finding of guilt against the accused as has
been returned by the Trial Court submitted that the evidence
being clear that the accused was to have 600 liters of kerosene oil
in his possession as Sub-Whole Sale Dealer and he was having
the stock of less by 400 liters, for such violation of the condition of
license, the Trial Court has rightly convicted the accused.
6. Keeping in view the submission made, I have carefully read
the impugned judgment of conviction. I have also travelled
through the deposition of the witnesses (P.W.1 to P.W.10) and
have perused the documents admitted on behalf of the
prosecution marked Ext.1 to Ext.9 as also the documents, i.e., the
stock register produced and proved from the side of the defence
(Ext.A).
7. P.W.4, the Inspector of Supplies having presented the
written report with the OIC, Kinjirkela Police Station (P.W.10)
vide Ext.B, the case has been registered against the accused and
the investigation has commenced. P.W.6 submitted the
verification report which was prepared by the Block
Development Officer (B.D.O.-P.W.9) during his visit to the Sub-
Whole Sale Depot of the Kerosene Oil of the accused. P.W.4 in his
report (Ext.3) does not mention as to for said shortage of stock,
what was the specific violation at the behest of this accused;
either referring to the Control Order or to the relevant condition
of the license whose photocopy has been marked as Ext.9.
8. The Trial Court by order dated 26.07.1996 has taken
cognizance of the offence under section 7 of the E.C. Act and then
instead of proceeding to summarily, try the offence by resorting
to the procedure prescribed for trial of summon cases has
resorted to the trial of the case following the procedure
prescribed for trial of warrant cases.
Be that as it may, the same has no impact as in case of trial
by following procedure for trial of warrant cases, the accused gets
wider scope and the question of prejudice does not arise.
But here in the case when one looks at the charge framed,
first of all it is found that it was so framed on 26.09.1996 wherein
the accused was charged for commission of offence under section
7 of the E.C. Act for contravention of Clause 7 and 8 of Orissa
Kerosene Control Order, 1962. The same has been recast on
03.09.1998 as it reveals from the charge with one head in the sheet
placed on record whereunder the accused was charged for
commission of offence under section 7 of the EC Act for violating
the condition of his license issued under Kerosene Control Order
read with Kerosene (Fixation of Selling Price Order), 1970. Such
sheet being there on record, the order sheet of the Trial Court
being traced, this Court is not in a position to find out any such
order to have been passed to that effect for recasting the charge.
In the said recasted charge even nothing is given as to which of
the condition of the license has been contravened so that in
invites the penal consequence provided under section 7 of the
E.C.Act.
In such state of affair on record, the charge when said to
have been recasted is not supported by any order to that effect
being passed and the accused is found to have not been asked to
explain the said charge on that day, simply relying on the sheet
placed on record; the final outcome of the trial on the basis of the
same cannot be sustained. Therefore, the judgment of conviction
and order of sentence impugned in this Appeal are liable to set
aside.
Having said so, when it is found that the incident dates
back to 06.04.1996 and there has been lapse of more than 28 years
by now, since the accused has also reached his sixties and has
undergone mental agony of criminal trial for all these years, as no
report is forthcoming as regards his adverse conduct, in my
considered opinion, remand of the case for retrial is not
warranted as it would not serve the ends of justice and meet its
end too.
7. Accordingly, the Appeal is allowed. The judgment of
conviction and order of sentence dated 25.06.1999 passed in T.R.
Case No.21 of 1996 (G.R. Case No.189 of 1996), are hereby set
aside.
Since the Appellant, namely, Gurucharan Mishra is on bail,
his bail bonds shall stand discharged.
(D. Dash),
Judge.
Himansu
Signed by: HIMANSU SEKHAR DASH
