Purusottam Behera vs State Of Orissa
2025 Latest Caselaw 1401 Ori

Orissa High Court

Purusottam Behera vs State Of Orissa on 18 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.132 of 1994

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


Purusottam Behera                    .......                Appellant

                                -Versus-

State of Orissa                       .......                 Respondent

For the Appellant : Mr. Anup Mishra, Advocate On behalf of Mr. A.K. Mishra, Advocate

For the Respondent : Mr. Sarbeswar Behera, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 03.07.2025 :: Date of Judgment: 18.07.2025

S.S. Mishra, J. The present Criminal Appeal, filed by the appellant

under Sections 374(2) of the Cr. P.C. read with Section 12 AB of the

Essential Commodities Act, 1955 is directed against the judgment and

order dated 05.04.1994 passed by the learned Special Court, Mayurbhanj, Baripada in 2(c)C.C. No.06 of 1992/T.C. No.14 of 1992,

whereby the learned trial Court has convicted the accused-appellant for

the offence punishable under Section 7 of the Essential Commodities

Act, 1955 (herein after 'E.C. Act' for brevity) and, accordingly,

sentenced him to undergo R.I. for six months.

2. The appellant stood charged for offences under Section 7 of the

E.C. Act read with Clause 3(1)&(2) Orissa Rice and Paddy Control

Order, 1965 and claimed trial by denying the charges.

3. The prosecution alleged that on 19.04.1990, the rented shop of the

accused-appellant was raided by the B.D.O., G.B. Nagar and the supply

staff of Udala inspected this rented premises and found 25 bags of rice

which weighed around 24 Quintals and 77 KGs. However, the accused

had no license to store rice beyond permissible limits, as a result of

which the stock was seized and subsequently appellant was charged

under section 7 of the E.C. Act for violation of Clause 3(1)&(2) Orissa

Rice and Paddy Control Order, 1965.

4. The prosecution in order to bring home charges examined four

witnesses. Out of which, P.W.1 was the then Marketing Inspector of the

Khunta Block. P.W.2 was the then B.D.O. Khunta Block, P.W.3 was the

landlord of the house from where the commodities were seized, and

P.W.4 was the cultivator and shopkeeper. The defence examined one

witness D.W.1, who claims to be the owner of some part of the seized

stock.

5. The learned trial Court analysed the evidence on record in detail

and returned the following findings:-

"P.W.3 says that the accused had taken his house on rent and he used to keep rice in that house and transact business in rice in that house. He said that the accused was paying a monthly rent of Rs 70/- to him P.Ws. 1,2 and 4 say that on 19.4.90 the house of P.W.3, which the accused had taken on rent was inspected and 25 bags of rice were seized from that house. These witnesses say that after taking weighment of the rice of those bags seizure list was prepared and the rice stock was given in the Zima of one Iswar Mohanty, who executed a zimanama. The seizure list, Ext. 1, the weighment sheet Ext.2 and the Ext.3 clearly support the statements of P.Ws. 1,2 and 4. The accused also admitted that Q.24.77.K.Gs. of rice in 25 bags were recovered fro the house in question, his plea is that he and some othe persons had kept the rice in that house and that only 5 bags of rice belonged to him.D.W.1 says that he had kept 5 quintals of rice in the house of Gouraheri Berik and other persons namely Prasanna Kumar Ratha, Niranja Chowdhury and Dusasan Behera had also kept their rice in that house. Even P.W.4 says that accused, Prasanna Ratha, Dusasan Behera and Parikhita Behera used to store their rice in that house. P.W.4 and D.W.1 however gave sufficient indication in their statements that they are trying to protect the accused by giving untrue evidence. P.W.4 says that he can not say how

much rice was kept by which person and for what purpose the rice stock had been kept in that house. He does not know whether the accused alone used to pay rent or the other four persons used to contribute. D.W.1 is unable to say the name of the owner of the house where the rice stock was there, he says that he is not a relation of the house owner and has not explained why and how he had kept the ric in that house. D.W.1 further says that he reached the spo soon after the seizure, but there is no indication that he put forth his claim before the Supply staff. The house owner says that he gave his louse on rent to the accused alone. The accused says that he had taken the house on rent from P.W.3. The accused is not able to say why he allowed the other four persons to keep their rice stock in that house. At one point the accused indicates in his statement that his house was gutted in fire, so he had taken the house of P.W.3 on rent. If that was so, then there was no reason for four outsiders to keep their rice in that house. In every respect the defence plea seems highly improbable. There is no document or oral evidence to show that the other persons bought and kept their rice in the house of the accused. So from the evidence of the prosecution and from the very admission of the accused, it has become clear that the rice weighing Q.24. 77 .K.Gs. in 25 bags were the rice of the accused and it was in his exclusive possession."

6. By appreciating and analyzing the evidence brought on record by

the prosecution and taking into consideration the defence plea eventually

the learned trial Court recorded the guilt of the appellant by concluding

as under:

"6.Clause 3(1) of the Orissa Rice & Peddy Control Order, 1965 says that no person would take up trade in rice as dealer without having a licence. Clause 3(2) of the said Control order says that any person who is found to be in possession of more than 10 quintals of rice will be

automatically presumed to be a dealer. The accused was in possession Q 24.77K.Gs of rice and as per the statements of P.Ws.1 to 4, he was carrying on trade in rice, but on demand could not produce any licence. The accused also admits that he has no licence. By storing more than 10 quintals of rice, the accused becomes a dealer, but he had no licence to act as a dealer. So he contravened the provisions of Clause 3(1) & (2) of the Orissa Rice & Paddy Control Order, 1965. Violation of such clause is punishable U/S 7 of the E.C. Act. Therefore, I hold the accused guilty U/S 7 of the E.C. Act. Section 7 of the E.C. Act provides punishment up to seven years, but Section 12 AA of the said Act, the period of imprisonment has been restricted to two years. Considering the quantity of rice seized, the status of the accused as a petty trader and the surrounding circumstances, I am inclined to take a lenient view and sentence the accused to undergo R.I. for a period of six months,"

7. Aggrieved by the aforementioned judgment of conviction and

order of sentence passed by the learned Special Court, Mayurbhanj, the

present Appeal has been preferred by the appellant.

8. Heard Mr. Anup Mishra, learned Counsel appearing for the

appellant on behalf of Mr. A.K. Mishra, learned counsel and Mr. A.K.

Apat, the learned Additional Government Advocate for the State.

9. Mr. Mishra, learned counsel for the appellant has strenuously

argued the case on merit and taken me to the evidence on record in

elaboration. After arguing for some time, he submitted that keeping in

view the procrastinated judicial process undergone by the appellant in

this case and the ordeal of trial faced by the appellant, he would rather

confine his argument to the quantum of sentence. He submitted that the

incident pertains to the year 1990 (19.04.1990). The appellant has

undergone the rigors of trial for about four years. Thereafter, the appeal

was preferred in the year 1994 (19.04.1994). The appeal has been

prolonging to be heard for about 31 years. At the time of incident, the

appellant was at his fifties. At present is an octogenarian and, leading a

respectful retired life along with his family. He does not have any

criminal antecedents. Therefore, sending him to custody at this belated

stage would serve no purpose, rather it would be harsh owing to his age.

A stigma would be attached to the entire family if the appellant is

incarcerated at this stage. Therefore, in the fitness of situation, the

appellant may be extended the benefit of Probation of Offenders Act

read with Section 360 Cr.P.C.

10. Taking into consideration the entire conspectus of the matter, it

would be apt to rely upon the judgment of Hon'ble Supreme Court in the

case of 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."

11. Besides the Judgment quoted above, regard being had to the age of

the appellant, his societal position, clean antecedents and the fact that the

incident had taken place in the year 1990, 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

2023 SCC OnLine SC 605

also covered by ratio of the judgment of this Court in the case of Pathani

Parida & another vs. Abhaya Kumar Jagdevmohapatra2.

12. 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 three months on his executing bond of Rs.5,000/- (Rupees Five

Thousand) 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 shall remain under the

supervision of the concerned Probation Officer during the

aforementioned period of three months.

13. With the above observation, the CRA is accordingly disposed of.

(S.S. Mishra) Judge The High Court of Orissa, Cuttack.

Dated the 18th of July 2025/ Swarna

2012 (Supp-II) OLR 469 Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa