Orissa High Court

Kameswar Nahak vs State Of Orissa on 25 September, 2025

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No.164 of 2001

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


Kameswar Nahak                        .......                  Appellant

                                 -Versus-

State of Orissa                       .......                 Respondent

For the Appellant : Ms. Monalisa Mohanty, Advocate

For the Respondent : Mrs. Sarita Maharana, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 09.09.2025 : Date of Judgment: 25.09.2025

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

under Section 374 of the Cr. P.C., is directed against the judgment and

order dated 03.08.2001 passed by the learned Special Judge, Koraput at

Jeypore in T.R. Case No.44 of 1997, 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 three

months and to pay fine of Rs.1,000/- (Rupees one thousand), in default,

to undergo R.I. for a further period of fifteen days.

2. Heard Miss Monalisa Mohanty, learned counsel appearing for the

appellant and Ms. Sarita Maharana, learned Additional Standing Counsel

appearing for the Respondent-State.

3. The prosecution has charged the appellant for the alleged

commission of the offence under Section 7 of the E.C. Act, 1955.

4. The prosecution case in brief and terse is that on 20.09.1996, the

Inspector of Supplies of the Office of the Civil Supplies Officer, Jeypore

along with other Officers of the Supply Department inspected the

business premises of the accused situated at the Main Road, Similiguda.

The accused was running business in his shop in the name and style as

"M/s. Srinivas Automobiles". During the inspection, it was found that

the accused had kept stocks of lubricating oils and greases in his shop.

He was also found transacting business in lubricating oils and greases.

On being asked, the accused could not produce any valid license issued

by the competent authority as required under Clause 3 of the Lubricating

Oil and Greases (Processing, Supply and Distribution Regulation) Order,

1987. Hence, the Inspector of Supplies seized the entire stock of

lubricating oils and greases in presence of the other Officers of the

Supply Department as well as available independent witnesses and the

accused. A seizure list was prepared at the spot. Since the accused was in

illegal possession and business of oils and greases, the Inspector of

Supplies filed Prosecution Report and on denial of charges, he has been

put to trial.

5. The prosecution, in order to bring home the charges against the

accused examined five witnesses. Out of which, P.W.5 was the Inspector

of Supplies, Jeypore, who had filed the Prosecution Report against the

accused in this case. P.Ws. 2 and 3 were the two Marketing Inspectors,

who claimed to have accompanied P.W.5 to the shop of the accused.

P.Ws.1 and 4 were claimed to be the independent witnesses to the

inspection of the shop of the accused and seizure of the lubricating oils

and greases. The defence did not adduce any evidence in support of its

case.

6. The learned trial Court, while appreciating the evidence on record,

formed the conclusion, which is largely reflecting in paragraphs-9 and 10

of the judgment of the learned trial Court under challenge. For ready

reference, the said paragraphs are reproduced hereunder:

"9. The oral evidence on record is further corroborated by documentary evidence. The seizure List-Ext.2 bears the signature of the accused. No explanation is offered by the accused as to how his signature could find place on the Seizure List. The signature of the accused also appears on the Zimanama- Ext.1 under which the accused received the seized lubricating oils and greases on zima. The genuineness of these two documents have not been questioned. A witness may come and lie, but a document cannot. In absence of any explanation from the defence regarding the existence of the signatures of the accused on Exts.1 and 2, it must be held that the seizure was made from the accused with his full knowledge and the accused himself received the seized materials on zima. P.W.1, a witness to the zimanama, also supported the prosecution case and claimed that in his presence the lubricating oils and greases were released in the zima of the accused. The evidence of P.W.1 along with the zimanama thus goes to further re-inforce the other evidence on record and there is no escape from the irresistible conclusion that the accused had stored the lubricating oils and greases in his shop.

10. The learned counsel for the defence took me through the evidence of P.W.2, who admitted in his cross-examination that no customer was present in the shop at the time of inspection. The learned Defence Counsel tried to use this stray sentence as a trump-card and contended that in absence of any customer the accused cannot be said to have been engaged in business of lubricating oils and greases. Such an argument merits no consideration. Once a shop-keeper displays

saleable articles in his shop, it must be presumed that such articles are kept in the shop for sale. Merely because no customer was present at the time of inspection, it cannot be said that the accused was not engaged in business of lubricating oils and greases. P.W.4 in his evidence testified that at the time of inspection customers were present in the shop of the accused. This is yet another circumstance to hold that the accused was engaged in the business of lubricant oils and greases."

7. Being aggrieved by the reasonings recorded by the learned trial

Court on appreciation of the evidence, which led to the recording of the

guilt of the appellant for the offence punishable under Section 7 of the

E.C. Act, this Criminal Appeal has been preferred.

8. Miss Monalisa Mohanty, learned counsel appearing for the

appellant submitted that in the present case, five witnesses were

examined. P.W.1 and P.W.4 being the independent witnesses have not

supported the prosecution case. P.W.1 has not supported the prosecution

story regarding seizure of the articles, whereas P.W.4 has deposed that

he is not sure as to whether the shop from which the articles were seized

belongs to the appellant. The testimonies of the other witnesses are also

shaky and largely contradictory. Hence, relying upon the nature of the

evidence adduced by the prosecution, no conviction could be sustained.

9. On the other hand, Mrs. Sarita Maharana, learned Additional

Standing Counsel appearing for the Respondent-State has vehemently

opposed the ground urged by Miss Mohanty, learned counsel for the

appellant and justified the impugned judgment.

10. I have carefully gone through the evidence on record and analysed

the reasonings recorded by the learned trial Court. It is apparent on

record that the prosecution could not conclusively prove the fact that the

shop from which the articles were seized indeed belongs to the present

appellant.

11. P.W.2 was the Marketing Inspector and accompanying P.W.5, the

raiding Officer. In his testimony, he has stated that although they have

seized the articles from the shop in presence of P.W.1 and the seized

articles were given in the zima of the accused and obtained the signature

thereon, however, no documents were seized regarding the ownership of

the shop. He has also stated that he has no idea that the shop belongs to

the accused-appellant.

12. P.W.3 in his cross-examination has stated that no paper was seized

from the possession of the accused regarding the ownership of the shop

in question. All the two witnesses were present at the time of search and

seizure. He cannot identify those witnesses. He has also stated that the

Officers accompanying him have not purchased any material from the

shop. The lubricant oils were kept in containers and the containers were

sealed. From the evidence of the aforementioned witnesses, it is not

coming on record with clarity as to whether the shop from which the

offending articles were seized indeed belongs to the appellant. The shop

was running in the name and style as "Srinivas Automobiles" was a

proprietorship firm. No document or for that oral evidence is brought on

record regarding the ownership of the shop.

13. In the present case, the chemical examination of the articles has

not been done. Even the quantity of the lubricant and the grease alleged

to have been seized has been definitely brought on record.

14. The defence has very emphatically pointed out that in absence of

any chemical examination report and weighment quantity of the

lubricant oil and grease being not ascertained on record, the appellant

cannot be convicted. The learned trial Court, however, dealt with the

said point and recorded the following findings:

"11. The learned counsel for the defence drew my attention to the definition of the term "lubricating oil or grease" as give in Clause 2(2) of the Order. This provision defines the term "lubricating oil or grease" as any of the products classifiable under sub-heading Nos.2710.32, 2710.60, 2710.70, 2710.80, 2710.93, 2710.94, 2710.95, 2710.99 or 3403.00 of the Schedule to the Central Excise Tariff Act, 1985. The learned counsel for the defence further argued that the seized materials having not been chemically examined, it cannot be said that the sealed tins seized from the accused contained lubricating oil or grease. When the tins are sealed by the producer company and printed "lubricating oil or grease", there was no necessity of any such chemical examination. The seizure list itself shows that the sealed tins vide Item Nos.4 and 5 bore prints that the tines contained lubricants. Since the accused stored and displayed the tines as lubricants, it is not open to him to argue that the tins did not contain lubricants. The accused, therefore, cannot be allowed to take refuge under such technicalities to escape from the arms of law."

15. If the entire evidence is read conjunctively, the reasonings

recorded by the learned trial Court as reproduced above, is not inspiring

the confidence to sustain the conviction. The prosecution in the present

case has not been able to prove the case beyond all reasonable doubts.

The nature of the evidence adduced by the prosecution through five

witnesses are not adequate to find the guilt of the appellant for the

offence under Section 7 of the E.C. Act. Hence, the appellant is entitled

to the benefit of doubts.

16. Accordingly, the judgment and order dated 03.08.2001 passed by

the learned Special Judge, Koraput at Jeypore in T.R. Case No.44 of

1997 is set-aside. The appellant is acquitted of the charge under Section

7 of the E.C. Act. The bail bond stands discharged.