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2002 DIGILAW 506 (ORI)

Bairagi Sahu v. State of Orissa

2002-08-09

A.S.NAIDU

body2002
JUDGMENT A. S. NAIDU, J. — This Criminal Appeal has been filed, inter alia, challenging the judgment and the order of conviction of the appellant under Sec. 7 of the Essential Commodities Act and sentence to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/-, in default, to undergo R.I. for one month in G.R.Case No. 1476 of 1985. 2. Bereft of all unnecessary details, the short facts as spelt out from the prosecution report are : On 24.5.1985 around 2 p.m. the appellant was found carrying 4 tins of Kerosene each containing 17 litres in his bi-cycle. Thus, he was in unlawful possession of 68 litres of Kerosene. The Supply Supervisor (P.W.4) seized the Kerosene tins and the bi-cycle vide Ext-2 and gave the same in Zima of P.W.1 after due execution of a Zimanama (Ext-1). It is submitted that the accused gave an oral statement which was reduced to writing by the In¬spector of Supplies as per Ext-4. 3. The defence plea was one of denial. The accused also took the plea that he was an employee of P.W.1 and that he was not a dealer of Kerosene. 4. To substantiate the prosecution case, four witnesses were examined. In defence one witness was examined. 5. The trial Court after discussing the evidence on re¬cord, came to a categorical finding that the accused was, in fact, possessing 68 litres of Kerosene though he had no licence for possessing the same. It was also held that the prosecution has been able to prove beyond all reasonable doubt that accused Bairagi Sahu was carrying 68 litres of Kerosene and he was liable to be prosecuted under Sec. 7 of the Essential Commodities Act. The trial Court observed that Kerosene being a very essential commodity, the act of the accused cannot be appreciated. On the basis of the aforesaid observations, the accused was found guilty and was sentenced as stated above. The said order, as stated earlier, is impugned in this appeal. 6. Mr. Dhal, learned counsel for the appellant forcefully submitted that even if the entire case, as projected by the prosecution, is believed, the accused-appellant not being a dealer, cannot be convicted under the provisions of the Orissa Kerosene Control Order, 1962 and that the order of conviction and sentence is unjust and illegal. In support of his case, Mr. 6. Mr. Dhal, learned counsel for the appellant forcefully submitted that even if the entire case, as projected by the prosecution, is believed, the accused-appellant not being a dealer, cannot be convicted under the provisions of the Orissa Kerosene Control Order, 1962 and that the order of conviction and sentence is unjust and illegal. In support of his case, Mr. Dhal relied upon the decision of this Court in the case of Puspa Ranjan Patel vrs. State of Orissa, (1996) 11 OCR 623. In the said case, relying upon several decisions it was clearly held that possession of Kerosene Oil in excess of 10 litres without licence though contravenes the control order, yet as the petitioner was not a dealer, he cannot be held liable for the offence under Sec. 7 (1)(a)(ii) of the Essential Commodities Act. In the case of Govind Prasad Jaiswal vrs. The State of Orissa, 62 (1986) CLT 656, while interpreting the provisions of Section 7 (1)(a) of the Essential Commodities Act, this Court observed that to establish an offence under the aforesaid Act, the prosecution is bound to establish that the accused was a dealer in essential commodities. 7. Mr. Patnaik, learned Addl. Standing Counsel, however, strenuously submitted that after analysis of the entire evidence, the trial Court had arrived at a right conclusion that the ac¬cused-appellant was in possession of 68 litres of Kerosene. According to the prevalent law, no person can store more than 10 litres of Kerosene and thus, the accused was liable to be con¬victed. 8. In the present case, apart from the vague statement made by P.W.4, who was an officer and lodged the Prosecution Report, that the accused stated before him on interrogation that he was taking Kerosene to sell in his shop, there is no iota of evidence to prove the fact that the appellant was a dealer. Perusal of Ext-4, the statement said to have been made by the accused, reveals that the last line of the said document has been scribed in different ink and I am not inclined to place any reliance on the said document. At the cost of repetition, it is reiterated that there is no material in the evidence of P.W.4, who happened to be the Supply Supervisor, to lead to the conclu¬sion that the accused was, in fact, a dealer and that he was selling Kerosene. At the cost of repetition, it is reiterated that there is no material in the evidence of P.W.4, who happened to be the Supply Supervisor, to lead to the conclu¬sion that the accused was, in fact, a dealer and that he was selling Kerosene. The ratio of the decision in the case of Govind Prasad Jaiswal (supra) clearly leads to the conclusion that the finding with regard to the fact that the accused was a dealer, is a sine qua non for attracting the provisions of the Orissa Kero¬sene Control Order. But then, according to the decision of a Division Bench of this Court, if a person carries or stores Kerosene for the purpose of business would be treated as a dealer for the purpose of the Essential Commodities Act. Even otherwise, the said mandatory requirement has not been proved in the present case. The prosecution has also not come with a clean hand. There is no material evidence to arrive at a conclusion that the ac¬cused was a dealer. The trial Court lost sight of the said fact while convicting the accused-appellant. 9. In view of the aforesaid clear position of law, after hearing learned counsel for the parties and perusing the materials available, I am satisfied that the trial Court erred in law while convicting the accused-appellant under Sec. 7 of the Essential Commodities Act and I have no hesitation to set aside the conviction. 10. The Criminal Appeal is accordingly, allowed. Appeal allowed.