Orissa High Court
Gafar Khan vs State Of Orissa on 19 August, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.71 of 1996
(In the matter of an application under Section 374 (2) of the Criminal
Procedure Code, 1973)
Gafar Khan ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Mr. D.P. Dhal, Senior Advocate
For the Respondent : Ms. Suvalaxmi Devi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 31.07.2025 :: Date of Judgment: 19.08.2025
S.S. Mishra, J. The present Criminal Appeal, is filed by the appellant
under Sections 374 (2) of the Cr. P.C., assailing the judgment of
conviction and order of sentence dated 16.02.1996 passed by the learned
Sessions Judge-cum- Judge, Special Court, Kandhamal, Boudh, Phulbani
in 2 (c) C.C. No. 1 of 1992, whereby the learned trial Court has
convicted the accused-appellant under Section 7(1) (a) (ii) of the
Essential Commodities Act and sentenced him to undergo R.I. for six
months and to pay a fine of Rs.2,000/-, in default, to undergo further R.I.
for two months.
2. The prosecution case in tersely stated is that on 05.01.1988 at
about 10.30 P.M. when the Supervisor of Supplies along with the
Inspector of Supplies and Marketing Intelligence Inspector G. Udayagiri
were patrolling in Government Jeep, found that a truck bearing
Registration No. O.R.P. 9639 loaded with bags at Kuchilaguda. On
suspicion, they checked the bags and found that the bags contained
groundnut seeds with shells and they also found that the groundnut seeds
with shells were packed in 117 bags. Being questioned to show the
permit, the appellant produced four vouchers and way bills showing
transshipment of groundnut seeds with shells. When it was found that the
appellant had possessed and was transporting groundnut seeds with
shells of more than 40 quintals without having obtained license to store/
transport groundnut seeds, the spurious way bills and purchased
vouchers were seized and prosecution report was submitted against him
for contravention of Clause-3 of the Orissa Pulses, Edible Oil Seeds,
Edible Oil Dealers (Licensing) Order, 1977, which is punishable under
Section 7 (1) (a) (ii) of the Essential Commodities Act.
3. Heard Mr. D.P. Dhal, learned Senior Counsel for the appellants
and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the
State.
4. The prosecution in order to bring home the charges examined as
many as six witnesses, whereas the defence took a stand of complete
denial of the charges and claimed trial.
5. P.W.1, was the Marketing Intelligence Inspector; P.W.2 was the
Inspector of Supplies; P.W.3 was the Depot Manager In-Charge of
Raikia R.C.M.S at G. Udayagiri, who took the seized groundnut shells in
zima; P.W.4 was the driver of the involved truck; P.W.5, Basista
Dehury, who submitted the P.R.; and P.W.6 was the Supervisor of
Supplies and the leader of the raiding party.
6. The trial court after thorough analysis of all the evidence on
record arrived at the following conclusion:-
"On the premises of the set forth above, this court is of the firm view
that accused have contravened clause 3 of the Orissa Pulses, Edible
Olis, seeds, Edible Oils (Dealers) Licensing Order,1977 punishable
U/s.7(1)(a)(ii) of the Essential Commodities Act for having
possessed 40.62 quintals of ground nut shells with seed without any
authority to possess."
7. Mr. Dhal, learned Senior Counsel for the appellant, instead of
challenging the conviction by assailing the judgment of the court below
has limited his arguments to the quantum of sentence. He submitted that
the accused at the stage of arguing on sentence before the learned Trial
Court had also prayed for grant of the benefits under Section 4 of the
Probation of Offenders Act, which was turned down by the learned Trial
Court. The Trial Court while denying the benefit under the P.O. Act held
thus:
"Heard the accused (Convict) and the learned advocate for the
accused(convict). Accused had urged upon the court to pass a linient
sentence while imparting sentence to the accused. Offence under
Essential Commodities Act has been attributed to be economic
offence. Accused (Convict) it would be given benefits of P.O. Act,
would be a misplaced leniency."
8. Learned Senior Counsel for the appellant further submitted that
the incident pertains to the year 1988 (05.01.1988). The appellant has
already undergone the rigors of trial for about eight years. Thereafter, the
appeal was preferred in the year 1996 (11.03.1996). The appeal has been
prolonging to be heard for about 29 years. At the time of incident, the
appellant was 53 years old. At present he is octogenarian, about 82 years
old, leading a respectful life along with his family. The learned Counsel
additionally submitted that the appellant has no criminal antecedents and
no other case of a similar nature or otherwise is stated to be pending
against him. Over the years, he has led a dignified life, integrated well
into society, and is presently leading a settled family life. Incarcerating
him after such a long delay, it is argued, would serve little penological
purpose and may in fact be counter-productive, casting a needless stigma
not only upon him but also upon his family members, especially when
there is no suggestion of any repeat violation or ongoing non-compliance
with regulatory norms. Therefore, in the fitness of situation, the appellant
may be extended the benefit of the Probation of Offenders Act read with
Section 360 Cr. P.C.
9. Taking into consideration the entire conspectus of the matter, it
would be apt to rely on the judgment of the Hon'ble Supreme Court in
Tarak Nath Keshari V. State of West Bengal1 , in which it was held
thus: -
"11. Even if there is minimum sentence provided in Section 7 of
the EC Act, in our opinion, the appellant is entitled to the benefit of
probation, the EC Act, being of the year 1955 and the Probation of
Offenders Act, 1958 being later. Even if minimum sentence is
provided in the EC Act, 1955 the same will not be a hurdle for
invoking the applicability of provisions of the Probation of Offenders
Act, 1958. Reference can be made to a judgment of this Court
in Lakhvir Singh v. The State of Punjab.
12. The appeal is accordingly disposed of. The appellant is directed
to be released on probation under Section 4 of the Probation of
Offenders Act, 1958 on entering into bond and two sureties each to
ensure that he will maintain peace and good behaviour for the
remaining part of his sentence, failing which he can be called upon
to serve the sentence."
10. Besides the Judgment quoted above, regard being had to the
procrastinated judicial process undergone, his societal position, clean
antecedents and the fact that the incident had taken place in the year
1996, I am of the considered view that the appellant is entitled to the
benefit of the Probation of Offenders Act and Section 360 of Cr.P.C.
Additionally, the case of the appellant is also squarely covered by ratio
2023 SCC OnLine SC 605
of the judgment of this Court in the case of Pathani Parida & another
vs. Abhaya Kumar Jagdevmohapatra2.
11. In such view of the matter, the present Criminal Appeal in so far
as the conviction is concerned is turned down. But instead of sentencing
the appellant to suffer imprisonment, this Court directs the appellant to
be released under Section 4 of the Probation of Offenders Act for a
period of six months on his executing bond of Rs.5,000/- (Rupees Five
Thousand) within one month with one surety for the like amount to
appear and receive the sentence when called upon during such period
and in the meantime, the appellant shall keep peace and good behavior
and he shall remain under the supervision of the concerned Probation
Officer during the aforementioned period of six months.
12. With the above observation, the Criminal Appeal is partly
allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 19th August, 2025/ Ashok
2012 (Supp-II) OLR 469
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
