Orissa High Court
Ashok Kumar Sahoo vs State Of Orissa on 28 October, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.307 of 2000
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
Ashok Kumar Sahoo ....... Appellant
-Versus-
State of Orissa ....... Respondent
For the Appellant : Ms. Anwesha Mishra, Advocate
For the Respondent : Mr. Sarathi Jyoti Mohanty,
Additional Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 14.10.2025 :: Date of Judgment: 28.10.2025
S.S. Mishra, J. The present Criminal Appeal is directed against the
judgment and order dated 21.11.2000 passed by the learned Special
Judge under the Essential Commodities Act, Khurda, in T.R. No.103 of
1996 (arising out of Vigilance G.R. Case No.11 of 1996). By the said
judgment, the learned Special Judge convicted the appellant under
Section 7 of the Essential Commodities Act, 1955 for contravention of
Clauses II, III & IV of his licence bearing No.4/79 read with Sections 3
and 10 of the Essential Commodities Act, and sentenced him to undergo
rigorous imprisonment for a period of one year and to pay a fine of
Rs.1,000/-, in default to undergo further rigorous imprisonment for a
period of three months.
2. Heard Ms. Anwesha Mishra, learned counsel, for the appellant and
Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the
State.
3. The prosecution case, in brief, is that the appellant was running a
wholesale business of super kerosene oil under the name and style of
M/s. A.K. Sahoo at Balugaon and held a valid licence bearing No.4/79,
renewed up to 31.03.1996. On 26.02.1996 at about 4.30 P.M., a
vigilance team led by U. Rama Rao, Inspector of Vigilance, Khurda
(P.W.9) along with P.Ws.1, 2, 3, 7, and 8 conducted a surprise inspection
of the appellant's business premises situated over Plot No.55, Khata
No.113 of Mouza Samantarapur in Balugaon Bazar. The inspection
revealed that against a book balance of 3,700 litres of super kerosene oil,
2,685 litres were physically found inside the business premises. Further,
860 litres of super kerosene oil were found stored in a tanker located
near the appellant's house, which was situated about one kilometre away
from the licensed business premises. Even after taking the latter quantity
into account, there was still a shortage of 155 litres of super kerosene oil,
for which the appellant allegedly could not furnish a satisfactory
explanation.
4. Consequently, the stock of kerosene oil, together with the account
books and related documents, was seized under proper seizure lists, and
on completion of investigation, the appellant was charge-sheeted for the
aforesaid offence.
5. The appellant denied the allegations and claimed that the case was
foisted against him due to political rivalry. He pleaded that there was no
deliberate contravention of licence conditions and that the kerosene
stored at his residence belonged to the same stock, which was
temporarily shifted for convenience. One defence witness, D.W.1,
namely Satara Kalapahad, was examined in support of the appellant's
case.
6. The prosecution examined nine witnesses. P.W.1 Sarat Kumar
Paramguru, P.W.2 Nityananda Naik, P.W.3 Sk. Muktarul Hossain
Hozari, P.W.7 Kishore Chandra Moharana, and P.W.8 Sanatan Bari
corroborated the fact of the raid and the detection of the shortage. P.W.4
Lambodar Das, the R.I. of Balugaon Circle, proved that the business
premises and the residential premises of the appellant stood over
different plots and separate revenue khatas. P.W.5 Sudarshan Mishra,
Junior Clerk, proved the seizure of the duplicate licence (Ext.6), and
P.W.9 U. Rama Rao, the investigating officer, narrated the entire course
of investigation and lodged the F.I.R.
7. However, it is pertinent to note that P.W.6 Laxman Das, a worker
of the appellant's depot, turned hostile and did not support the
prosecution case. His evidence did not contribute to the prosecution's
version and was, therefore, of no assistance in proving the alleged
shortage.
8. On the other hand, D.W.1 Satara Kalapahad, who accompanied
the vigilance team during the raid, deposed that against the shortage of
1015 litres of super kerosene oil, the dealer, Ashok Kumar Sahoo,
explained that he had some quantity of kerosene oil stored at his
residence. Accordingly, the team proceeded to his residence, located at a
distance of about one kilometre from his business premises at Balugaon-
Banpur Road, where a tanker fitted with a motor was found containing
860 litres of kerosene oil. Thus, there was an effective shortage of only
155 litres, which the appellant could not reconcile on the spot. This
statement, in substance, corroborates the essential fact that the major
portion of the alleged shortage was duly explained during the inspection
itself.
9. The learned trial Court held that the appellant had stored kerosene
oil at a place not specified in his licence and had failed to account for the
shortage of 155 litres, thereby violating Clauses II, III & IV of the
licence conditions read with Sections 3 and 10 of the E.C. Act.
Accordingly, convicted the appellant under Section 7 of the Essential
Commodities Act and imposed the sentence noted above. The relevant
portion of the aforesaid judgment is extracted herein below for ready
reference:-
"12. Learned defence counsel has argued that
cognizance of the offence has not been taken. But, it is
disclosed from the record that on 20.9.96, this Court
has taken cognizance of the offence under section 7 of
the E.C. Act. It is further argued by the learned
defence counsel that when section 3 of the E.C. Act is
violated, then cognizance of offence will be taken
under section 7 of the E.C. Act and that section 3
relates to the commodities specified in sections 2 & 3
of the said Act. It is argued by the learned defence
counsel that the word "oil" means "edible oil" and
kerosene is not an oil and is not coming under the
definition of sections 2 & 3 of the E. C. Act, which has
been held in a case reported in 1986 (I) OLR at page
415. So it is the plea of the defence that the accused is
not liable under section 7of the E.C. Act for violation
of sections 2 & 3 of the said Act in view of the above
decision.
13. In the result, I find that the prosecution has
proved beyond reasonable doubt that the accused has
contravened clauses II, III & IV of his licence bearing
No.4/79 read with sections 3 & 10 of the E.C. and I
hold him guilty under section 7 of the E.C. Act and
convict him thereunder.
14. Heard the convict on the question of quantum of
sentence to be imposed upon him. The convict is aged
about 54 years. Learned counsel for the convict
submitted that there is no previous conviction at the
credit of the convict and if the convict would have
sold 155 litres of kerosene oil in black market @
Rs.10/- per litre, then at best he would have earned a
profit of Rs.750/-, for which a lenient sentence may be
passed against the convict. Considering the age of the
convict and nature of the offence, I am not inclined to
extend the benefit of the Probation of Offenders Act to
the convict. I think R.I. for a term of one year and fine
of Rs.1,000/-, I.D. to undergo R.I. for a further period
of three months shall meet the ends of justice.
Hence, I sentence the convict to undergo rigorous
imprisonment for a period of 1 (one) year and to pay
a fine of Rs.1,000/- (Rupees one thousand), in default,
to undergo rigorous imprisonment for a further
period of 3 (three) months for the offence punishable
under section 7 of the E.C. Act, 1955. The period
which the convict has undergone as U.T.P. shall be
set off as per the provisions under section 428,
Cr.P.C. against the substantive sentence passed
against him."
10. I have carefully considered the submissions advanced by the
learned counsel for the appellant as well as the learned counsel for the
State, and perused the entire lower Court records, including the
depositions of the prosecution witnesses and the reasoning assigned by
the learned trial Court.
11. It is undisputed that the raid was conducted on 26.02.1996 at
about 4.15 P.M. and that 2,685 litres of kerosene oil were found in the
licensed premises, while 860 litres were discovered at the appellant's
residence. The shortage of 155 litres was thus established by the
prosecution.
12. However, the evidence on record clearly indicates that the entire
stock of kerosene oil belonged to the same business entity, M/s A.K.
Sahoo, and was not shown to have been sold clandestinely or diverted
for black marketing. No evidence was adduced by the prosecution to
establish that the appellant had any dishonest intention to contravene the
provisions of the E.C. Act. D.W.1's deposition, corroborated by the
prosecution witnesses themselves shows that the appellant immediately
disclosed the presence of the additional stock at his residence, and the
same was duly verified by the vigilance officials.
13. Further, P.W.6 turning hostile also weakens the prosecution's
case, as he was the only worker present during the raid who could have
supported the allegation of manipulation or concealment. The mere
shortage of 155 litres, without evidence of mens rea or deliberate
violation, in a bulk stock exceeding 3,000 litres, cannot be said to
constitute an intentional contravention warranting harsh penal
consequences.
14. It is also relevant that the appellant was 54 years old at the time of
conviction and had no prior criminal antecedents. The total value of the
alleged shortage, even as per the trial Court's finding, was around
Rs.750/-, which further demonstrates the trivial nature of the alleged
irregularity.
15. Taking into consideration the entire conspectus of the matter, it
would be apt to rely on the judgment 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: -
"12. 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.
13. 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."
16. Having regard to the facts and circumstances of the case, it is seen
that the appellant has already undergone a period of about three months
as an undertrial prisoner and there is no previous conviction standing
against him. The alleged contravention, on a close scrutiny, appears to be
more technical in nature rather than intentional. Furthermore, nearly
three decades have elapsed since the date of occurrence and the appellant
has faced the ordeal of trial and appeal throughout this prolonged period.
17. In view of these mitigating factors, I am of the considered view
that the appellant is entitled to the benefit of the Probation of Offenders
Act. Additionally, the case of the appellant is also covered by the ratio of
the judgment of this Court in the case of Pathani Parida & another vs.
Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR
469. Therefore, while not interfering with the judgment of conviction
recorded against the appellant for the offence as stated above, I am
inclined to grant the benefit of the Probation of Offenders Act so as to
suffice the sentence part.
18. In such view of the matter, the present Criminal Appeal in so far
as the conviction is concerned, is turned down. The period of custody
already undergone by the appellant (three months) shall be deemed
sufficient for the purposes of Section 428 Cr.P.C. and this Court directs
the appellant to be released under Section 4 of the Probation of
Offenders Act for a period of six months on his executing bond of
Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount
within a month 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 he shall remain under the supervision of the
concerned Probation Officer during the aforementioned period of six
months. Bail bonds, if any, stand discharged.
19. Accordingly, the Criminal Appeal is allowed and disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 28th October, 2025/ Subhasis Mohanty
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 28-Oct-2025 17:15:59
