Orissa High Court
973) vs State Of Orissa on 18 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.82 of 1998
(In the matter of an appeal under Section 374 of the Code of Criminal Procedure,
1973)
Kumar Swamy Kilaka ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Ms. Subhashree Sen, Amicus Curiae
For the Respondent : Mr. S.J. Mohanty, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 08.07.2025 : Date of Judgment: 18.07.2025
S.S. Mishra, J. The sole appellant in the present Criminal Appeal has
assailed the Judgment of conviction and order of sentence dated
04.04.1998 passed by the learned District Judge-cum-Special Judge,
Ganjam-Gajapati, Berhampur in 2(c) C.C. No.2/1997, thereby convicting
the appellant for the offence punishable under Section 7(1)(a) of the
Essential Commodities Act and accordingly, sentenced him to pay fine
of Rs.500/- (Rupees five hundred), in default, to undergo S.I. for a period
of fifteen days.
2. The appeal is pending since 1998. Nobody has been appearing in
this matter since last two hearings and when the matter is taken up today,
none has appeared for the appellant. Therefore, I appoint Ms. Subhashree
Sen, Advocate, Enrollment No.622 of 2016, who is present in Court as
Amicus Curiae to assist the Court in the matter. She has readily accepted
the same and very effectively rendered her assistance.
3. Heard Mr. S.J. Mohanty, learned Additional Standing Counsel
appearing on behalf of the Respondent-State.
4. The prosecution case in terse and brief is that the appellant was the
proprietor of M/s. Janaki Gas. On 10.08.1996 at about 10.30 A.M.,
P.Ws. 1, 2 & 3 inspected the establishment of the appellant and
discovered that the price and stock display board and stock of the filled
gas cylinder was shown as "NIL". On verification, it was found that four
numbers of filled gas cylinders were available in the go-down. However,
in the register maintained by the appellant, five numbers of filled gas
cylinders were shown in the stock as against four numbers of available
gas cylinders. Therefore, the prosecution report was prepared against the
appellant for violation of the Clauses-7, 8 and 9 of the Liquefied
Petroleum Gas (Regulation of Supply and Distribution) Order, 1993
(hereinafter referred to as "Order, 1993"). Accordingly, the appellant
was charged for commission of the offence under Section 7 of the
Essential Commodities Act and subjected to trial.
5. The prosecution examined three witnesses. P.W.1 was the then
Sub-Collector, Berhampur. P.Ws.2 and 3 were the officials of Supply
Department. The appellant also examined three witnesses on his defence.
6. The appellant took a stand that the authorities have inspected his
premises on 10.08.1996 at about 10.30 A.M. wherein four numbers of
filled gas cylinders were there in the go-down. But the stock position in
the Stock Register dated 08.08.1996 was showing six numbers of filled
gas cylinders available. The appellant took a stance that out of six
numbers of filled gas cylinders, one was a display in the show room and
one was sold on 09.08.1996 in the late hours. Due to the illness of the
Manager (D.W.3), he could not make the entry in the register on that
day. Before the entry could be made in the stock register on 10.08.1996
in the morning, the inspection was carried out. He further stated that the
allegation of the prosecution that in the display board, the cylinder stock
are shown as "NIL" is a misconception and a concocted story.
7. Learned trial Court dealt with the evidence of the prosecution as
well as the defence and arrived at a conclusion that non-maintaining of
the Stock Register is not believable. Therefore, the appellant was
acquitted of the allegation of violation of Clause-8 & 9 of the Order,
1993. However, the trial Court found the appellant guilty of violation of
Clause-7 of the Regulation Order, 1993. On the basis of the evidence on
record, the learned trial Court arrived at a conclusion that the stock and
price display board fixed to the wall was not detachable, which is
required under Clause-7 of the Regulation Order, 1993. Hence, the
appellant is guilty for the offence under Section 7 (1)(a) of the Essential
Commodities Act for having violated Clause-7 of the Order, 1993.
Relevant would be to reproduce paragraph-7 of the impugned judgment
which records the finding regarding the guilt of the appellant which
reads thus:
"7. The next allegation of the prosecution is that there was
a stock and Price Display Board fixed to the wall and
because it was not detachable, they prepared its extract,
Ext.2. The defence evidence is that the Price and Stock
Board is detachable, but it was deliberately not produced by
the prosecution, as it would have gone against their case. It
was also said by the defence witnesses that the writings in
the board was in the chalk and the officers misread it and
prepared a fake extract. Ext.2 shows that a detail extract of
the board was prepared. In this document the stock of other
articles, telephone number, weekly holidays, working hour
etc. have all been described and it has not only been signed
by the officials, but also by the accused. The manner in
which the signature of the accused is available on this Ext.2,
one can never infer that his signature was taken on blank
paper and the extract was prepared later on. So, this
document appears to be genuine and the entries appears to
be the true copy of the entries in the Price and Stock Board.
The prosecution claim is that the Board was not detachable
from the wall and so the board was not produced. When the
defence claimed that the board is detachable, they could
have produced the same in the court to disprove the plea of
the prosecution. Under such condition, the ratio of the case
of State of Orissa vrs. K. Jagannath Senapati, reported in
1983 C.L.T. (S.N.)-99 is not applicable to the present case.
Admittedly, there were five Gas cylinders in the stock, but
the stock position was not correctly displayed on the Price
and Stock Board. The accused is, therefore, guilty of
violation of Clause 7 of the Liquefied Petroleum Gas
(Regulation of Supply and Distribution), Order 1993."
8. On the basis of the aforementioned findings, the learned trial
Court while recording the conviction under Section 7(1)(a) of the
Essential Commodities Act, the appellant has been sentenced to pay fine
of Rs.500/- (Rupees five hundred), in default, to undergo S.I. of fifteen
days.
9. Learned Amicus Curiae and the learned counsel for the State
have extensively read out the evidence of the prosecution, the defence
and exhibited documents. Learned Amicus Curiae has contended that the
plea taken by the appellant to explain the default through the defence
witnesses has not been appreciated by the learned trial Court. The
learned trial Court has simply brushed aside those evidence, therefore,
the conviction recorded against the appellants is not substantive.
10. In contrast, the learned State counsel submitted that three
witnesses are the official witnesses and their testimonies are unshaken
and unimpeachable. P.W.1, being the Sub-Collector of the area, has
deposed against the appellant and his testimony is being supported by
P.Ws. 2 and 3. There is no scope to disbelieve these responsible officers
those who have conducted the inspection and found the discrepancy in
the Stock Register and the Display Board.
11. I have carefully gone through the evidence led by both the
parties and analysed the judgment of the learned trial Court. The
conviction of the appellant for the offence under Section 7 of the
Essential Commodities Act is only because of the alleged violation of
Clause-7 of the Regulation Order, 1993.
12. It is admitted on record by the prosecution witnesses that there
was a Stock and Display Board. However, the learned trial Court found
that the Display Board was showing "NIL stock" and the display was
also not detachable. To establish the same, the extract of the Board was
exhibited as Ext.2. There was no photograph or any other kind of
evidence produced before the Court to establish that in the Display
Board, stock was shown as NIL. The learned trial Court drew an
inference that since the Display Board was not produced before the
Court, therefore, it is obvious that the Display Board was not attached to
the premises nor it was detachable.
13. Clause-7 of the Regulation Order, 1993 requires the Distributor
to display a Board indicating the opening balance of the stock etc.
Clause-7 is not mandated either to have a attached Display Board or a
detachable Display Board from the premises. From the evidence of
P.Ws., it has come on record that there was a Display Board in the
premises. However, the learned trial Court drew an inference that the
Board was attached to the premises, hence came to the conclusion that
since the Board was not detachable, the appellant has violated Clause-7
of the Regulation Order, 1993 and found the appellant guilty.
14. I have perused the Regulation Order, 1993. Clause-7, in fact,
requires a Distributor to have a Display Board. However, it is not
provided that the Display Board should be detachable one. Therefore, the
findings recorded by the learned trial Court is completely perverse and a
culmination of misreading of Clause-7 of the Regulation Order, 1993
and the evidence on record in that regard. Hence, the finding recorded in
paragraph-7 as reproduced above in the impugned judgment is not
sustainable under law.
15. In that view of the matter, the impugned order is liable to be set
aside and the appellant is entitled to acquittal.
16. The appellant is acquitted from all the charges and the bail bond
stands discharged.
17. This Court records appreciation for the effective and meaningful
assistance rendered by Ms. Subhashree Sen, learned Amicus Curiae. She
is entitled to the honourarium of Rs.7,500/- (Rupees seven thousand five
hundred) to be paid.
18. The Criminal Appeal stands allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 18th of July, 2025. Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 18-Jul-2025 18:55:59
