Orissa High Court

Baikuntha Nath Choudhury vs State Of Odisha on 31 July, 2025

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.116 of 2001
(In the matter of an appeal under Section 374 of the Code of Criminal
Procedure, 1973)

Baikuntha Nath Choudhury                  .......           Appellant

                                   -Versus-

State of Odisha                         .......           Respondent

For the Appellant : Mr. Biswa Kumar Mishra, Advocate

For the Respondent : Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 22.07.2025 : Date of Judgment: 31.07.2025

S.S. Mishra, J. This appeal is directed against the judgment and order

dated 03.05.2001 passed by the learned Additional Sessions Judge-cum-

Special Judge, Jeypore in T.R. Case No. 21 of 2000 (arising out of T.R.

Case No. 137 of 1997), whereby the appellant Baikuntha Nath

Choudhury was convicted under Section 7(1)(b)(ii) of the Essential

Commodities Act, 1955 (hereinafter referred to as 'the Act') for contravening Clause 3 of the Orissa High Speed Diesel (Dealers'

Licensing) Order, 1979 and sentenced him to undergo rigorous

imprisonment for one year and to pay a fine of Rs. 1,000/- (Rupees one

thousand), in default, to undergo further rigorous imprisonment for one

month.

2. Heard Mr. Biswa Kumar Mishra, learned counsel appearing for

the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional

Standing Counsel appearing for the Respondent-State.

3. The prosecution case originates from an incident dated

05.03.1997 at about 11:45 A.M., the Marketing Inspector, Boipariguda,

along with the Assistant Civil Supplies Officer (A.C.S.O.), Jeypore and

another Marketing Inspector visited the grocery shop of the appellant

situated at Boipariguda. The raiding officials found the appellant present

in his shop and allegedly selling high speed diesel to customers, without

possessing any valid permit or licence for such sale.

4. Upon demand, the appellant failed to produce any valid licence.

Consequently, 160 litres of high speed diesel, contained in a drum, were

seized from the spot. A written statement allegedly made by the

appellant confessing to selling diesel for the past month was also

recorded. The seized diesel was then handed over in zima to one

Biranchi Narayan Patra (P.W.1). A prosecution report was submitted

against the appellant under the relevant provisions of the Essential

Commodities Act.

5. During trial, the prosecution examined five witnesses to establish

the seizure and the alleged unauthorized dealing in diesel. P.W.2

(Rabindranath Suaro) and P.W.3 (Monoj Kumar Das), the Marketing

Inspectors, and P.W.5 (Padmalochan Nayak), the A.C.S.O., formed the

raiding team and supported the prosecution case in material particulars.

P.W.1 and P.W.4 were cited as seizure witnesses.

6. The appellant, in his statement under Section 313 Cr.P.C., took

the plea of complete denial. He contended that he neither owned nor

operated any Dhaba at the spot and that he had been falsely implicated

by the Marketing Inspector (P.W.2). It was also contended that the

seized articles did not belong to him, and no conclusive proof was

furnished by the prosecution to establish his ownership or conscious

possession over the premises or the articles.

7. The defence plea was one of total denial. The appellant contended

that though he ran a grocery shop at Boipariguda, he was not dealing in

diesel. It was the case of the defence that the seized diesel belonged to

D.W.1, Nrusingha Charan Sahu, a truck driver, who had temporarily

kept the drum containing diesel near the appellant's shop and asked the

appellant to keep an eye on it. D.W.1 was examined to corroborate this

version but failed to produce any documentary proof (such as a

purchase receipt) to substantiate his claim.

8. On evaluation of the evidence, the learned trial court relied on the

alleged confessional statement (Exhibit 3) made by the appellant to the

Supply officials and found the prosecution version to be trustworthy and

consistent. The learned trial Court disbelieved the defence version, held

the appellant guilty of contravening the licensing order, and imposed the

sentence mentioned above.

9. The trial Court, after credible analysis, has arrived at the

following finding-

"(7) It is in nutshell the evidence led on behalf of the prosecution regarding the seizure of diesel from the accused. The plea of the accused in this case is that

though he owns and runs a grocery shop at Boipariguda he was not selling diesel. Rather the diesel was kept in front of his shop by another person. This being the case there appears to be no impediment in coming to the conclusion that on 5.3.97 diesel was in fact seized from in front of the shop of the accused under seizure list Ext.1.

The question now remains to be seen whether the accused had purchased the same or it belong to Nursingha Charan Sahu. In this regard the prosecution relies on the statement made by the accused before the Marketing Inspector. Ext.3 is the written confessional statement duly signed by the accused. Ext3 reads that the accused have a grocery shop at the main road which was opened since last one month and that he is selling diesel in his shop in retail which he was bringing from Jeypore. He had no authority/permit/licence for sale of diesel. The accused has signed his name in English on Ext.3 which is marked as Ext.3/1. In order to prove that the diesel belong to Nrushinga Charan Sahu he has been examined as a witness for the defence. The witness has stated that he knows the accused who has a Kirana shop at Boipariguda. The witness was managing the affairs of the truck of one Umashankar and in course of such management on 5.3.97 he has purchased diesel from Jeypore and taken it to Boipariguda. He further stated that at Boipariguda as his house is at a distance he kept the diesel by the side of the shop of the accused and then went to fetch some labourers to carry it. The witness has further stated that on his return to that place he found that Supply officials had already started a case against the accused. The witness went to the Supply Inspector and stated him that he has purchased the seized diesel, but the Inspector did not listen to him. He further stated that as there was no authorised dealer of diesel at Boipariguda he had to purchase the same from Jeypore to carry it to

Boipariguda. The witness has been cross-examined by the prosecution and in the cross-examination he has stated that on that he had purchased 200 litres of diesel from Kodi pump which was transported to Boipariguda in a drum in their own truck. But as the truck could not approach his house the drum was kept by the side of the shop of the accused. Though the witness has stated that he purchased the diesel under a money receipt no such receipt was filed on behalf of the defence to show that the seized diesel was in fact purchased by D.W.1. Thus from the entirety of the evidence led by both the sides, it is evident that the accused is running a grocery shop at Boipariguda and from the premises of his shop high speed diesel measuring 160 litres were by the Supply Authorities. The accused has stated before the Supply authorities that he was selling the diesel in retail for the past one month. Such statement of the accused before the Supply officials shall be admissible in evidence as Supply officials cannot be termed as police officers to attract the bar of Section 25 of the Indian Evidence Act. No material has been brought out in the cross-examination to show that such written confession was caused by inducement, threat or promise. Hence, I am inclined to hold that the confession made by the accused as evident from Ext.3 is true and voluntary. This is because three responsible public officials have stated that the accused had made a voluntary statement about the retail business he was carrying on. Accordingly, it is held that the prosecution has proved that the accused was carrying on business of dealing in high speed diesel without any proper licence."

10. Assailing the impugned judgment, learned counsel for the

appellant, after arguing the matter on merits and law, chose to confine

his submission to the quantum of sentence. It is submitted that the

alleged incident dates back to 05.03.1997 and the appellant has since

then undergone the rigors of the criminal justice system for nearly three

decades. The trial concluded in the year 2001, and the appeal has

remained pending since then. The long pendency of this matter has, in

itself, been an agonizing ordeal for the appellant, who was barely in his

50s at the time of the alleged offence and is now around 75 years of age.

11. Having heard both sides and on careful examination of the

evidence and materials available on record, this Court is of the view that

the prosecution has succeeded in establishing that the appellant was in

possession of 160 litres of high speed diesel outside his grocery shop

and had no valid licence to sell or store such petroleum product.

12. However, the Court cannot be unmindful of the surrounding

mitigating factors. The quantity of diesel involved was not beyond the

non-licensable limit under the Petroleum Act, 1934 (i.e., below 250

litres), and there was no evidence of commercial scale storage or trade.

No independent purchaser was examined to establish the existence of a

regular business. The seizure was made in 1997, and the appellant, now

significantly older, has faced proceedings for nearly three decades. He

appears to be a first-time offender, with no previous criminal record,

and no subsequent incident has been reported against him.

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

would be apt to rely on the judgement of the Hon'ble Supreme Court in

Tarak Nath Keshari V. State of West Bengal, reported in (2023) SCC

OnLine SC 605, 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."

14. In light of the above considerations, this Court is of the

considered view that while the conviction of the appellant under Section

7(1)(b)(ii) of the Essential Commodities Act may not warrant

interference, the sentence imposed by the learned trial court is liable to

be modified. The object of criminal law is not only to punish but also to

reform. Section 4 of the Probation of Offenders Act, 1958, empowers

the court to release a convict on probation of good conduct instead of

sentencing him to imprisonment, having regard to the nature of the

offence and the character of the offender.

15. Considering the age of the appellant at the time of conviction, the

prolonged pendency of the matter, the absence of criminal antecedents,

and the relatively minor nature of the infraction, this Court deems it just