Jagannath Padhi And Others vs State Of Orissa
2025 Latest Caselaw 1402 Ori

Orissa High Court

Jagannath Padhi And Others vs State Of Orissa on 18 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.22 of 1996

(In the matter of an application under Section 374(2) and 375 of the
Criminal Procedure Code, 1973)


Jagannath Padhi and others              .......               Appellants

                                 -Versus-

State of Orissa                        .......                 Respondent

For the Appellants : Mr. S. N. Sahoo, Advocate

For the Respondent : Mr. A. K. Apat, 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 appellants

under Sections 374(2) of the Cr. P.C., is directed against the judgment

and order dated 22.12.1995 passed by the learned District Judge-cum-

Judge, Special Court, Phulbani in G.R. Case No.82 of 1994, whereby the

learned trial Court has convicted the accused-appellants for the offences punishable under Section 7 of the Essential Commodities Act, 1955

(herein after 'E.C. Act' for brevity) and, accordingly, sentenced them to

undergo R.I. for four months each besides fine of Rs.300/-, in default, to

further undergo R.I. for one month.

2. The prosecution has charged the appellant Nos.1 & 2 for offences

under Section 7(1)(a)(ii) of the E.C. Act read with Rule 10 of the Orissa

Kerosene Control Order, 1962. However, in so far as the other appellants

are concerned, they stood charged for alleged offences punishable under

Sections 6 & 7 of the E.C. Act.

3. The prosecution alleged that on 02.03.1994 at about 7.00 P.M., the

appellant No.2 on behalf of appellant No.1 illegally sold 35 liters of

kerosene oil to appellant Nos.3 & 4. The allegations are essentially

regarding the pilferage of stock of kerosene of the retail shop situated at

Sarangagada, which was made for consumption of public. The detailed

prosecution story which eventually reflected in F.I.R. and the

prosecution went to prove the same is tersely and briefly narrated

hereunder:-

a) As per the F.I.R. lodged by one Sahadev Patra on 02.03.1994 at 8:00

PM at Sarangada Police Station, is that on the same day at around

7:00 PM, one Bagha @ Ananta Padhi, elder brother of Jagannath

Padhi, opened the control shop and handed over a plastic jerry can

(Jarkin) to the accused persons, Ramakrushna Padhi and Rajendra

Panda. Thereafter, Ramakrushna Padhi held a bicycle while Rajendra

Panda carried the jerry can behind him, and both proceeded towards

Patarasahi.

b) Suspicious of their actions, the informant along with his friends,

Prafulla Kumar Bissoi and Jasobanta Bissoi, followed them. Upon

intercepting the accused persons, they inquired about the contents of

the jerry can. On opening it, they found that it contained 35 litres of

kerosene. The informant and his companions then took possession of

the jerry can and kept it in the custody of one Pindika Patra.

c) Subsequently, Sahadev Patra lodged the FIR, based on which the

police registered Sarangada P.S. Case No. 9 dated 02.03.1994, and

seized the jerry can from the house of Pindika Patra. The matter

culminated in the registration of G.R. Case No. 82 of 1994 before the

Court of the Special Judge, Phulbani.

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

witnesses. Out of which, P.W.1 is a seizure witness. P.W.2 is the F.I.R.

named witness, P.W.3 is the informant in this case, P.W.4 is the ex-

mutha head (unclear), P.W.5 is the wholesale dealer of the kerosene,

P.W.6 is the initial I.O. and P.W.7 is the subsequent I.O.

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

and returned the following findings:-

"7. It is the cardinal principle of criminal jurisprudence that the prosecution is required to prove it's case against the accused persons beyond any reasonable doubt. It is the case of the prosecution that accused No.1 is the retail dealer of Kerosene oil for Sarangagada. According to P.Ws. 2 and 3 accused No.1 was not present or parted with this 35 liters of kerosene oil to accused Nos. 2, 3 and 4. Thus, accused No.1 has not associated himself in parting 35 liters of kerosene oil by accused no.2 in favour of accused Nos. 3 and 4.

P.W.5 has said that he had issued 200 liters of kerosene oil on 26.2.94 to accused No.1 vide Ext. 6. According to P.W.6 on 2.3.94 at 8.30 P.M. he weighed the balance stock of Kerosene Oil available at the retail shop of accused No.1 and ascertained that the balance stock of Kerosene available at hands of accused no.1 was 23 liters. The evidence of P.W.3 that they collected 27 ration cards of ward no. II of villager sarangada(Ext.7) and came to know that 70 liters of kerosene has been issued to the consumers from the total stock available has not been braathed by

either P.W.6 or P.W. 7. But, nevertheless, this fact is suggestive that, accused No.1 issued Kerosene oil to at least to 27 persons to the knowledge of P.W.3.

By this testimony of P.W. 3, it cannot be said conclusively that accused No.1 had not issued Kerosene to any other persons other than the 27 persons as per list in Ext.7. If might have so happen, the accused no.1 might have sold Kerosene oil to other consumers of village Sarangada after 26.2.94. Neither P.W.6 nor P.W.7 has seized the sale register of Kerosene oil of the retail shop of accused no.1 to ascertain the quantity sold to the consumers to come to the conclusion that accused No.2 parted with 35 liters of Kerosene oil from the stock of Kerosene meant for the consumers of village Sarangagada kept in store by accused no.1 being purchased from P.W.5 under Public Distribution system. It might be a fact that accused No. 2 might have kept the stock of 35 liters of kerosene oil separately inside that retail shop of accused no.1 to part with that stock of Kerosene oil to accused no.1 to part with that stock of kerosene oil to accused nos. 3 and 4, as has been witnessed by P.Ws. 2 and 3. Thus culpability of accused Nos. 2, 3 and 4 can be said to have been well brought home."

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

the prosecution and taking into consideration the defense plea eventually

the learned trial Court arrived at the following conclusion:-

"On the evidence on record, this quote is of the view that prosecution has not been able to establish Nexus of accused No. 1 with accused No. 2, 3 and 4 to attribute abatement of any offence committed by accused No. 1, this Court is of the view that offence U/s. 8 of Essential Commodities Act has not been brought home against any of the accused persons.

On the evidence on record, the criminal culpability of accused No.1 that accused No.1 contravened Rule 10 of Orissa Kerosene Control Order 1962 independent to the Criminal overtact of accused Nos. 2, 3 and 4 have been amply brought home by the prosecution. Accordingly,

accused No.1 can be fastened with the Criminal liability punishable U/s.7 of the Essential Commodities Act. Similarly, the Criminal liability of accused Nos. 2, 3 and 4 have been amply brought home by the prosecution that accused nos. 2, 3 and 4 contravened S. R.264/82 dated 19.4.1982 of Food & Civil Supplies Department. Government of Orissa read with the Orissa Kerosene Control Order 1961. Accordingly their criminal liability can well be fastened within the scope of Section 7(1)(a) (ii)of the Essential Commodities Act.

Thus, in the result, all the accused persons are found guilty for the offence Under Sec. 7 of the Essential Commodities Act and are convicted there under. But, however accused Nos. 2, 3 and 4 are found not guilty for the offence under Sec. 8 of the Essential Commodities Act and are acquitted thereunder by virtue of section 248(1) Cr. P. C."

7. Aggrieved by the aforementioned judgment of conviction and

order of sentence passed by the learned District Judge cum Judge,

Special Court, Phulbani, the present Appeal has been preferred by the

appellants.

8. Heard Mr. S.N. Sahoo, learned Counsel appearing for the

appellants and Mr. A.K. Apat, the learned Additional Government

Advocate for the State.

9. Mr. S.N. Sahoo, learned counsel for the appellants has strenuously

argued the case on merit and taken me to the evidence on record. After

arguing for some time, he submitted that keeping in view the

procrastinated judicial process undergone by the appellants in this case

and the ordeal of trial faced by the appellants, he would rather confine

his argument to the quantum of sentence instead of arguing the matter on

merits questioning the conviction. He submitted that the incident pertains

to the year 1994 (2.3.1994). The appellants have undergone the rigors of

trial for about two year. Thereafter, the appeal was preferred in the year

1996 (18.1.1996). The appeal has been prolonging to be heard for about

29 years. At the time of incident, the appellants were very young at their

20s. At present all of them are at their late 50s, leading a respectful life

along with their families. None of them have any criminal antecedents.

Therefore, sending them to serve out the custody period at this belated

stage would serve no purpose, rather it would be harsh and would have a

cascading effect on the entire family. A stigma would be attached to the

entire family if the appellants are incarcerated. Therefore, in the fitness

of situation, the appellants may be extended the benefit of Probation of

Offenders read with Section 360 Cr.P.C.

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

would be apt to rely on the judgement of 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."

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

the appellants, their societal position, clean antecedents and the fact that

the incident had taken place in the year 1994, I am of the considered

view that all these appellants are entitled to the benefit of the Probation

of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the

appellants are also covered by ratio of the judgment of this Court in the

2023 SCC OnLine SC 605

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 appellants to suffer imprisonment, this Court directs the appellants to

be released under Section 4 of the Probation of Offenders Act for a

period of six months on their executing bond of Rs.5,000/- (Rupees Five

Thousand) each with one surety each for the like amount to appear and

receive the sentence when called upon during such period and in the

meantime, the appellants shall keep peace and good behavior and they

shall remain under the supervision of the concerned Probation Officer

during the aforementioned period of six 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