Keshab Mehera vs State Of Orissa
2025 Latest Caselaw 10823 Ori

Orissa High Court

Keshab Mehera vs State Of Orissa on 9 December, 2025

        THE HIGH COURT OF ORISSA AT CUTTACK

                       CRA No.152 of 1992

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Keshab Mehera                          .......               Appellant

                                 -Versus-

State of Orissa                   .......                 Respondent

For the Appellant : Mr. Sougat Das, Amicus Curiae For the Respondent : Mr. A.K. Apat, Additional Government Advocate

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 25.09.2025 :: Date of Judgment: 09.12.2025

S.S. Mishra, J. The present Criminal Appeal is directed against

the judgment and order dated 27th March, 1992 passed by the learned

Special Judge -cum- Sessions Judge, Balangir, in II(C) C.C. No.13 of

1990/T.R.No.19 of 1990 for the offence punishable under Section

7(1)(a)(ii) of the Essential Commodities Act and sentenced the appellant to undergo rigorous imprisonment for a period of six

months and to pay a fine of Rs.1,000/-(One Thousand) in default to

further undergo rigorous imprisonment for one month.

2. The present appeal has been pending since 1992. When the

matter was called for hearing, consistently none appeared for the

appellant. Therefore, this Court requested Mr. Sougat Das, learned

counsel, who is present in Court to assist the Court as Amicus Curiae.

He has readily accepted the same and after obtaining entire record,

assisted the Court very effectively. This Court records appreciation

for the meaningful assistance rendered by Mr. Das.

3. Heard Mr. Sougat Das, learned Amicus Curiae, for the

appellant and Mr. A.K. Apat, learned Additional Government

Advocate for the State.

4. It is alleged that the accused was running a grocery shop at

village Tendapadar under Patnagarh Police Station. On 05.10.1990,

during the afternoon, officials of the Supply Department conducted a

search of the said shop. During inspection, the accused was found

storing 14 litres of kerosene oil, whereas possession of kerosene in

excess of 10 litres requires a valid dealership licence, which the

accused did not have.

Additionally, the accused was found storing 30 kilograms of

common salt. Since common salt is an essential commodity, its stock

and price must be displayed on a declaration board under the Orissa

Declaration of Stocks and Prices of Essential Commodities Order,

1973. No such declaration board was found in the shop. The accused

was, therefore, alleged to have contravened the 1973 Order. On these

two grounds unauthorised possession of kerosene beyond the

permissible limit and failure to display the mandatory stock and price

of common salt, the accused was prosecuted under Section 7 of the

Essential Commodities Act.

5. The prosecution examined only two witnesses in total. P.W.1

was the then Supply Supervisor and P.W.2 was the then Armed Police

Constable. As per the case of the prosecution the premises was

inspected by the supply staff in the presence of the armed forces to

maintain law and order.

6. The accused pleaded not guilty and refuted the allegation of

owning grocery shop at Tendapadar. On this stance of denial, he was

put to trial.

7. The learned Trial Court by relying on the statement of both the

P.Ws, and the circumstantial evidence held as under:

"7. The Supply Supervisor (P.W. 1) and the Police Constable (P.W.2) depose that the shop had a stock of 14 litres of kerosine. The oral evidence is corroborated by the documentary evidence of seizure list and the zimanama, Ext. 3. The seizure list speaks of seizure of 14 litres of kerosine. The zimanama-Ext. 3 reads that the seized kerosine measuring 14 litres was given in zima, As we find from the oral evidence, the accused himself measured the kerosine in presence of the inspecting party.

8. It is argued that the kerosine has not been scientifically tested. Commonly everybody is a acquainted with kerosine. It has a particular smell quite different from any other liquid. It does not require a scientific test. I, therefore, accept the oral evidence that the seized liquid was nothing but kerosine. Admittedly the accused did not have any dealership license. His possessing kerosine exceeding 14 litres is, therefore, a case of contravention of provision of the Orissa Kerosine Control Orders has been held in (1992)5 O.C.R. 158 Prabhas vrs, State possessing of kerosine exceeding the permissible quantity is punishable u/s 7(1)(a) of the Essential Commodities Act.

9. Coming to the possession of common salt, the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 (hereinafter referred to as 1973 Order) enumerates edible common salt as an item of essential commodity. According to the said 1973 Order a dealer carrying on business in edible common salt is required to display the stock and its price in his business premises. In the instant case, it is alleged that the accused did not display any such stock and price board. It is argued that the evidence is not specific if the common salt seized from the shop is edible or not. Common people refer edible salt as is edible or not. Common people refer edible salt as salt only. So, the seized salt could not be other than edible common salt. It is further urged

that the prosecution report does not reveal about non-display of the price board. Admittedly the prosecution report does not speak in so many words about the non-display of the price board. It, however, mentions that the accused possessed 30 Kgs, of common salt and that he has contravened the provision of the 1973 Order. This fact read with the seizure list wherein it is specifically mentioned that the seizure was made for non- display of declaration board clearly indicates that the prosecution was launched for non-display of the price board also.

I, therefore, accept the evidence of the Supply Supervisor that the accused in fact did not display the price board as required by the 1973 Order, He has contravened the provision and is liable under the Essential Commodities Act."

8. Aggrieved by the aforementioned findings which led to the

conviction and order of sentence, the appellant has filed the present

appeal.

9. The learned Amicus Curiae for the appellant has assailed the

impugned judgment on several grounds. It is contended, at the

threshold, that the essential ingredients of the alleged contravention

have not been established by the prosecution. PW-1, in his cross-

examination, admitted that the prosecution report does not indicate

non-maintenance of the declaration board, nor does the seizure list

reflect that the stock allegedly seized was recovered from the

possession of the appellant. In the absence of categorical proof of

contravention, it is submitted that the conviction is unsustainable.

It is next urged that the defence plea regarding non-requirement

and absence of scientific examination of the seized liquid has been

wrongly brushed aside. The liquid purported to be kerosene was never

subjected to a chemical or scientific test, and the Trial Court's

observation that "everybody is acquainted with kerosene" cannot, in

law, substitute the mandatory requirement of proof. In criminal

jurisprudence, suspicion or assumption, however strong, cannot take

the place of proof beyond reasonable doubt.

The learned Amicus Curiae further submitted that the alleged

quantity of kerosene in excess was a mere 4 litres above the

permissible limit of 10 litres. For a grocery shop owner catering to

local household needs, such marginal excess cannot, by itself,

constitute black-marketing or hoarding within the mischief sought to

be prevented by the Essential Commodities Act. It is argued that the

element of mens rea unless specifically excluded is a necessary

component for conviction under Section 7, and the same is

conspicuously absent in the present case.

Attention is also invited to the procedural lapses vitiating the

seizure and the prosecution case. No independent witness to the

seizure has been examined. PW-2, an armed constable, is a merely

formal witness with no relevance to the actual act of contravention.

The prosecution has also failed to produce any stock register or shop

record to substantiate the allegation of excess possession.

10. Reliance is placed on the judgment of this Court in

Champeswar Bastia v. State of Orissa & Others1, wherein, in similar

circumstances, the conviction under Section 7 of the Essential

Commodities Act was set aside.

It is further argued that the alleged offence dates back to the

year 1990, and the appellant has undergone the ordeal of criminal

prosecution for a period of 35 years. He is presently 67 years old and

has no criminal antecedents. The learned counsel draws support from

the consistent view of the Hon'ble Supreme Court that, in cases of

petty nature and where there has been an extraordinary lapse of time,

the ends of justice are adequately met by reducing the sentence to the

period already undergone.

An alternative plea on sentence is also advanced. Even assuming,

arguendo that a technical contravention stands proved, the alleged

violation pertains only to a trivial excess quantity of kerosene and

non-display of salt stock on the board, with no evidence whatsoever

of profiteering, black-marketing, or large-scale hoarding. The object

of the Essential Commodities Act is to prevent diversion of essential

commodities on a significant scale, and not to visit small shopkeepers

with penal consequences for minor procedural lapses.

On these premises, it is prayed that the conviction recorded

under Section 7(1)(a)(ii) of the Essential Commodities Act be set

aside and the appellant be acquitted of the charges. In the alternative,

considering the trivial nature of the alleged contravention, the absence

of mens rea, the long passage of 35 years, and the advanced age of the

appellant, it is prayed that the sentence be modified to that of fine

alone.

11. On the contrary, it is submitted by Mr. A.K. Apat, learned

A.G.A. for the State that the findings of the learned Trial Court are

well-reasoned and supported by the evidence on record, and,

therefore, call for no interference.

12. Having heard the learned counsel for the parties and with their

help, I have gone through the material on record so as to appreciate

the evidence to test the sustainability of the impugned order. The

criminal law was set into motion against the appellant on the basis of

the prosecution report dated 05.10.1990. The prosecution report reads

as under:-

"I demanded the accuse person Sri Meher to produce the valid documents before me for authencticacy on his selling of K.Oil and salt, but he failed to produced the same. Than I obtained statement from the accused person and ascertained that he was selling @Rs.4.00 per lr. of K.Oil and @Rs.1.75 per kg. of common salt. Also I enquired from the consumers of that locality and come to that they are purchasing the K.Oil and salt from Sri Meher at the aforesaid rate. Than I have seized the stocks from Sri Meher and kept under Zimanama of Sri Mohan Singh Nag, S/O Sri Dasmu Nag of Tendapadar for safe storage of the stocks i.e. 14 (forteen) lrs. of K.Oil and 30 (thirty) Kgs. of common salt along with the containers. Thereby the accused person contravained the Section of the control orders mentioned against Col.4."

13. The prosecution tried to establish its report through only two

witnesses, namely, the Supply Officer and one Armed Constable, who

happens to be present at the time of the search and seizure. The

prosecution has emphatically relied upon the statement of the accused

recorded in the spot, which was exhibited as Ext.2. Although the

Supervisor, who conducted the search and seizure, has deposed that

he had enquired from the customers of that locality and came to know

that they were purchasing the Kerosene oil and salt from the appellant

at Rs.4 per liter and Rs.1.75 per kg. respectively, but surprisingly

none of the consumers were examined by the prosecution. Rather, the

prosecution is strongly relied upon the statement of the accused Ext.2

already made before P.W.1. The learned trial court while dealing with

such situation has observed as under:-

"6. Then we have the statement of the accused (Ext.2) wherein he has admitted his ownership over the inspected grocery shop. It is said that Ext.2 is not admissible in evidence for the fact that it was confessional in nature and that police people were present. Admittedly the police officer was present to maintain law and order. It has, however, no thing to do with the inspection and detection. I would, therefore, not agree that the statement is not admissible. Taking all these facts oral and documentary into consideration and even ignoring the statement Ext.2, I would hold that the accused did own a grocery shop at Tendapadar and that the same was inspected on the date mentioned above."

14. The aforementioned analogy applied by the learned trial court

to place reliance upon Ext.2, which is self-incriminatory, is not

permissible under law. The prosecution is obliged under law to

establish its case independently beyond all reasonable doubt, but not

to establish its case by extracting the confession from the accused.

The defence plea raised by the accused is also blissfully ignored by

the learned trial court. The learned trial court so as to convict the

appellant has assumed many things rather than relying upon the

material evidence. The assumption could be reflected from one of the

observations made by the learned trial court, which read as under:-

"The supply Supervisor (P.W.1) is the local officer. By nature of his official duty it is expected that he knew about the ownership of the shop prior to the detection. His evidence that he inspected the shop of the accused, therefore, cannot be doubted."

In the face of the defence plea that the shop is not belonging to

him, the onus was on the prosecution to establish that the shop

belongs to the accused. However, the learned trial court presumed that

the sole witness, i.e., the Supervisor knew that the shop belongs to the

appellant although from the evidence of Supervisor (P.W.1) nothing

of that sort is illuminating. The reading of the impugned order does

not inspire confidence to sustain the conviction.

15. Upon an overall re-appraisal of the evidence on record and the

submissions advanced, this Court finds that the prosecution has failed

to establish the essential ingredients of the alleged contravention

under Section 7(1)(a)(ii) of the Essential Commodities Act with the

degree of certainty required in a criminal trial. The testimony of PW-1

itself reveals that neither the prosecution report nor the seizure list

discloses that the seized stock was recovered from the conscious

possession of the appellant, nor is there material to show non-

maintenance of the declaration board. The absence of such

foundational facts strikes at the root of the prosecution case.

The Court further notes that the seized liquid, purported to be

kerosene, was never subjected to scientific or chemical examination.

In the absence of such proof, the identity of the commodity remains

unestablished. The Trial Court's reliance on general familiarity with

kerosene cannot substitute the legal requirement of proof beyond

reasonable doubt. The criminal justice system does not permit

conviction on conjecture or assumption when precise scientific

evidence is readily obtainable but not produced.

16. Additionally, the quantity of the alleged excess kerosene is a

mere 4 litres over the permissible limit. Such a marginal deviation,

particularly in the case of a small grocery shop catering to local

households, does not, by itself, indicate hoarding, profiteering, or any

conduct inimical to the objectives of the Essential Commodities Act.

In the absence of any evidence of dishonest intent, the element of

mens rea cannot be presumed.

17. Significant procedural lapses further weaken the prosecution

case. No independent witness to the seizure has been examined;

P.W.1 is an official witness and P.W.2, the armed constable is only a

formal witness. The prosecution has also failed to produce stock

registers or shop records to substantiate the allegation of excess

possession. Such omissions create material doubts as to the manner

and legality of the seizure.

18. This Court is also mindful of the fact that the alleged offence

pertains to the year 1990. The appellant, now aged about 67 years, has

remained embroiled in criminal proceedings for nearly 35 years. He

has no criminal antecedents, and the prolonged pendency of a matter

of such petty nature weighs significantly in the scales of justice.

19. In view of the above observation and discussion, this Court is

of the considered view that the conviction of the appellant cannot be

sustained.

20. Hence, the conviction and sentence of the appellant under

Section 7(1)(a)(ii) of the Essential Commodities Act are hereby set

aside. The appellant is acquitted of all charges. His bail bonds stand

discharged.

21. Accordingly, the Criminal Appeal is allowed.

22. This Court records the appreciation for the effective and

meaningful assistance rendered by Mr. Sougat Das, learned Amicus

Curiae. He is entitled to an honorarium of Rs.7,500/- (Rupees seven

thousand five hundred) to be paid as token of appreciation.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 9th of December, 2025/ Ashok

Signed by: ASHOK KUMAR JAGADEB MOHAPATRA

Location: High Court of Orissa Date: 12-Dec-2025 16:18:03