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2005 DIGILAW 274 (ORI)

SURENDRANATH SUBUDHI v. STATE OF ORISSA

2005-04-25

I.M.QUDDUSI

body2005
I. M. QUDDUSI ( 1 ) THIS appeal has been filed against the judgment and order dated 25-3-1988 passed by the Special Judge, koraput, Jeypore in T. R. Case No. 1 of 1987 (State v. Surendranath Subudhi) convicting the appellant for the offence punishable under S. 7 (1) of the Essential Commodities act, 1955 and sentencing him to undergo r. I. for six months and to pay a fine of Rs. 1,000/-, in default to undergo R. I. for a further period of one month. ( 2 ) THE prosecution case, in short, is that the appellant-accused is a business man having a grocery shop at village Mathalput. He has his grocery shop adjoining his residential accommodation. There is a bath room near his residence. He has also a godown in front of his grocery shop, and the shop and the godown are intervened by a road. On 16-3-1985 Staff of the Supply Department consisting of the Supply supervisor, Koraput, Sri Bhagaban Behera, Sri atithi Charan Sahu, Marketing Intelligence inspector, Koraput, Supply Supervisor, suriabeda Sri Pramoth Nath Misra and Revenue Officer-cum-Executive Magistrate. Koraput, Sri Kedar Nath Chhotrai went to village Mathalput and checked the grocery shop of the accused. From the grocery shop, they found 12 tins of Amul Spray each weighing 1 k. g. They wanted to check the godown. Accused denied to have the key of the lock. However, on intervention of the police, he unlocked the door. Inside that godown there were 14 bags of rice. Two bags of rice weighing 1. 98 quintals net were of fine variety of boiled rice and the other 12 bags of rice weighing 11. 88 quintals net were of fine variety of raw rice. Though the accused refused to have in possession of any other essential commodities, but on further verification 188 litres of kerosene were found to have been kept in 8 tin containers and two jerricans inside the bathroom belonging to the accused. Accused failed to produce any licence or permit in support of possession and storage of the aforesaid articles. As such, the articles were seized by the Marketing Intelligence Inspector. The articles were given in the zima of the accused for which he executed a Zimanama. Accused also gave a voluntary statement which was reduced to writing by the Revenue Officercum-Executive Magistrate. As such, the articles were seized by the Marketing Intelligence Inspector. The articles were given in the zima of the accused for which he executed a Zimanama. Accused also gave a voluntary statement which was reduced to writing by the Revenue Officercum-Executive Magistrate. The matter was reported to the police on 11-4-1986 and the sub-Inspector of Police of Damanjodi P. S. investigated into the case and after completion of investigation, submitted charge-sheet as mentioned above. ( 3 ) IN this regard first of all the provisions of S. 7 of the Essential Commodities act, 1955 (for short the 'e. C. Act') are required to be perused. They are quoted as under :"7 (1) Penalties- If any person contravenes any order made under S. 3 : (a) he shall be punishable. (i) in the case of an order made with reference to Cl. (h) or Cl. (i) of sub-section (2)of that section, with imprisonment for a term which may extend to one year, and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine; provided that the Court may, if any adequate and special reasons to be mentloned in the judgment, impose a sentence of imprisonment for a term of less than three months : (b) any property in respect of which the order has been contravened shall be forfeited to the Government. (c) Any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the Court so orders, be forfeited to the Government. " ( 4 ) IN the instant case, the appellant has been convicted under S. 7 (1) of the E. C. Act for which the maximum period provided in the Act is imprisonment for a term, which may extend to one year and fine also. ( 5 ) TO prove the case against the accused, prosecution has examined altogether seven witnesses. Out of them P. W. 1 Sri Pramoth nath Mishra, P. W. 2 Sri Kedarnath Chhotrai, p. W. 4 Sri Bhagaban Behera and P. W. 5 Sri atithi Charan Sahu are the members of the checking squad. ( 5 ) TO prove the case against the accused, prosecution has examined altogether seven witnesses. Out of them P. W. 1 Sri Pramoth nath Mishra, P. W. 2 Sri Kedarnath Chhotrai, p. W. 4 Sri Bhagaban Behera and P. W. 5 Sri atithi Charan Sahu are the members of the checking squad. P. W. 3 Bijaya Chandra padhi is an independent witness who was present at the time of checking and who was a witness to the seizure. P. W. 6, Sri jeebanananda Pati is the police officer who appeared at the spot when the accused refused to unlock the door of the godown. He is also a witness to the recovery and seizure. P. W. 7, Sri Pradeep Kumar Mishra is the Investigating Officer of the case. ( 6 ) PROSECUTION has relied upon Ext. 1, the seizure list prepared at the time of checking, Zimanama (Ext. 2) executed by the accused, voluntary statement of the accused (Ext. 3), F. I. R. (Ext. 4) and Seizure List prepared by the I. O. vide Ext. 5. ( 7 ) FROM the evidence of the prosecution witnesses it was proved that the appellant was in possession of the grocery shop and the residential house and from the bathroom the essential commodities in question were recovered. Possession of such essential commodities was in contravention of the e. C. Act. ( 8 ) LEARNED Special Judge has also observed that there is no reason for extending the benefit of Probation of Offenders Act to the accused as the age of the accused was 40 years at that time. No doubt the commodities were found from the bathroom of the appellant at his residence, which in no way was concerned with the commercial establishment of the accused. ( 9 ) IT is necessary to consider the facts and circumstances of the case. The date of occurrence was 16-3-1985, but the F. I. R. was lodged on 11-4-1986. There is no reasonable explanation for lodging the F. I. R. after more than a year from the date of occurrence. The learned Court below took cognizance on 2-1-1987. On the date of occurrence the accused-appellant was aged about 40 years. It cannot be presumed in the absence of any evidence that the commodities were kept in the residential premises of the accused-appellant with the intention to sell them out. The learned Court below took cognizance on 2-1-1987. On the date of occurrence the accused-appellant was aged about 40 years. It cannot be presumed in the absence of any evidence that the commodities were kept in the residential premises of the accused-appellant with the intention to sell them out. It is also to be noticed that no other commission of offence has been reported against the appellant before the learned Court below when he considered the question of his release on probation under the Probation of Offender's Act. ( 10 ) THEREFORE, in view of the above mentioned facts and circumstances, I see no good reason as to why the appellant should not be given benefit of Probation of Offender's Act. ( 11 ) IN the above background, this Court is of the opinion that the judgment/order passed by the learned Special Judge, koraput is liable to be upheld. But, instead of calling upon the appellant to serve out the Rigorous Imprisonment and pay the fine as indicated above, the appellant is liable to be released on probation of good conduct. ( 12 ) IN the result, the appeal is dismissed, and the conviction of the appellant is upheld. But instead of sentencing him to suffer any punishment, I direct that the appellant be released under S. 4 of the Probation of Offender's Act, 1958 for a period of one year on his executing a bond of Rs. 5,000/-with two sureties each for the like amount to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behavior. The appellant shall remain under the supervision of the Probation Officer, koraput, Jeypore during the aforesaid period. Appeal dismissed.