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2000 DIGILAW 242 (ORI)

K. SAMBU REDDY v. STATE OF ORISSA

2000-05-02

P.K.PATRA

body2000
P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 28-3-1991 passed by Shri G. Narasimham, Special Judge, Koraput, Jeypore in T. R. Case No. 8 of 1989 convicting him under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000. 00, in default to undergo further rigorous imprisonment for a period of one month. ( 2 ) PROSECUTION case is as follows : The appellant has a grocery shop at village Motu. On 17-10-1988 at about 1. 30 p. m. , P. W. 1, the Marketing Inspector of Podia Block, inspected the shop of the appellant and found a barrel containing 190 litres of kerosene oil, two funnels, one empty tin and measuring instruments. On demand, the appellant could not produce any licence or permit for possession of kerosene oil. Hence P. W. 1 seized the kerosene oil and other articles in presence of witnesses. After completion of enquiry P. W. 1 filed prosecution report against the appellant for alleged violation of Clause-3 of the Orissa Kerosene Control Order, 1962 punishable under Section 7 of the Act and the appellant stood his trial. The plea of defence is one of denial. According to defence, the appellant was not the owner of the kerosene, but one licensed kerosene dealer (D. W. 1) had kept the same in the shop of the appellant during his temporary absence. ( 3 ) PROSECUTION has examined only two witnesses to bring home the charge against the appellant. P. W. 1 is the Marketing Inspector who detected the case and seized the kerosene. P. W. 1 is a witness to the seizure. The defence has examined one witness in support of its case as D. W. 1 who is a licensed kerosene dealer. ( 4 ) THE learned Special Judge convicted the appellant basing on the sole testimony of P. W. 1. He did not place reliance on the statement of P. W. 2 holding that he was a chance witness and was not consistent with the statement of P. W. 1. ( 5 ) MR. S. K. Pradhan, on behalf of Mr. ( 4 ) THE learned Special Judge convicted the appellant basing on the sole testimony of P. W. 1. He did not place reliance on the statement of P. W. 2 holding that he was a chance witness and was not consistent with the statement of P. W. 1. ( 5 ) MR. S. K. Pradhan, on behalf of Mr. Manoj Misra, learned counsel for the appellant, contended that the learned Special Judge has failed to appreciate the evidence on record correctly and has come to the conclusion that the appellant was in possession of the kerosene oil seized in this case. The learned Addl. Standing Counsel appearing for the State supported the impugned judgment contending that a conviction can be based on the sole testimony of a witness who is reliable and truthful. The rival contentions require careful consideration. ( 6 ) THERE is no dispute that the kerosene oil and other articles had been seized from the shop of the appellant. The sole point for consideration is whether the seized kerosene oil belonged to the appellant or to the licensed dealer. In his statement in cross-examination P. W. 1 has stated that it was a Monday, which was a weekly day at Motu and the weekly market is situated at a distance of about 200 yards from the shop of the appellant which is near the bus-stand at Motu. He has admitted that D. W. 1 was the licensed kerosene dealer of Motu at that time and the Barrel containing kerosene oil was at the entrance door of the shop of the appellant. P. W. 1 has stated that the appellant made a voluntary statement (Ext. 1) admitting that he was dealing in kerosene, but the appellant has stated that he did not make voluntary statement, but his signature was taken by P. W. 1 on Ext. 1. P. W. 1 has also stated that he examined the person from whom the appellant had purchased kerosene oil and also the driver of the vehicle in which kerosene was brought to the shop of the appellant. But none of them has been examined in support of the prosecution case. P. W. 2 is an unemployed youth of Malkangiri and while waiting for a bus at the Motu bus-stand he witnessed the seizure of kerosene oil from the shop of the appellant. But none of them has been examined in support of the prosecution case. P. W. 2 is an unemployed youth of Malkangiri and while waiting for a bus at the Motu bus-stand he witnessed the seizure of kerosene oil from the shop of the appellant. Since P. W. 2 was a chance witness and since he stated that no weekly market was going on at Motu on that day and further since he could not name any of the persons stated to be present at the time of seizure, no reliance was placed on him. ( 7 ) D. W. 1 who is admittedly a licensed dealer in kerosene oil at Motu has stated that on 17-10-1988 he had kept 190 litres of kerosene oil at the weekly market at Motu and that the grocery shop of the appellant was close to his shop in the said market and that during his temporary absence from the market to take his food, P. W. 1 seized the kerosene oil. He has further stated that after returning to the weekly market when he found that the kerosene oil had been seized by P. W. 1, he claimed that he was the owner of the said kerosene oil and requested P. W. 1 to release the same, but P. W. 1 refused. Hence, he preferred a claim before the concerned Collector for release of the kerosene oil. ( 8 ) THE learned Special Judge disbelieved the statement of D. W. 1 on the ground that on 27-7-1988 he had been allotted 1100 litres of kerosene oil and he could not have stock of 190 litres of kerosene oil on 17-10-1988. But the Issue Register produced by P. W. 1 reveals that 1100 litres of kerosene oil had been issued on 27-7-1988 and no issue order had been issued till 17-10-1988 and 660 litres of kerosene oil had been issued on 26-10-1988. The Sale Register of the dealer D. W. 1 has not been produced. Therefore, there is no reason to disbelieve the statement of D. W. 1 that he had kept 190 litres of kerosene oil in his shop in the weekly market which is close to the shop of the appellant. The Sale Register of the dealer D. W. 1 has not been produced. Therefore, there is no reason to disbelieve the statement of D. W. 1 that he had kept 190 litres of kerosene oil in his shop in the weekly market which is close to the shop of the appellant. Further, the appellant was not found to be dealing in kerosene oil at the time of inspection by P. W. 1 who has stated that the barrel containing the kerosene oil was at the entrance door of the shop of the appellant. ( 9 ) IN T. Godavari Patra v. State of Orissa, reported in (1988) 1 OCR 531, it has been held by this Court that the defence plea can be established through preponderance of probabilities and has to be accepted if the said plea is believable and plausible. ( 10 ) IN the instant case, none of the independent local witnesses has been examined in support of the prosecution case and the categorical statement of D. W. 1 that he was the owner of the kerosene oil in question and that on refusal by P. W. 1 to release the same, he has preferred a claim before the Collector of the district would make the defence plea more probable and plausible. Hence the finding of the learned Special Judge that the appellant was in illegal possession of kerosene oil is found to be unsustainable and is liable to be set aside. The appellant therefore cannot be convicted under the Act for violation of any provision of the Orissa Kerosene Control Order and his conviction and sentence are liable to be set aside. ( 11 ) IN the result, the Criminal Appeal is allowed. The impugned judgment dated 28-3-1991 of the learned Special Judge in T. R. Case No. 8 of 1989 convicting the appellant under Section 7 (1) (a) (ii) of the Essential Commodities Act and the sentence passed thereunder are set aside. The appellant is found not guilty and acquitted of the charge. His bail-bond be discharged. Appeal allowed.