Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 414 (ORI)

Surendranath Swain v. State of Orissa

2005-07-07

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : The petitioner has filed this case under Section 482 Cr.P.C. to quash the order-dated 11.10.2004 passed by the J.M.F.C., Pipili in G.R. Case No.325 of 2004 where¬in he took cognizance of the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the ‘E.C. Act’) against the accused/petitioner. 2. As depicted in the F.I.R. and case diary, on 26.8.2004 at about mid-night when the accused-petitioner was carrying a jerican containing 40 litres of Kerosene in an Ambassador car bearing No. OR-02-AB-3855, the villagers of Hatasahi detained the car and one of the villagers, namely, Rabindranath lodged an F.I.R. in this regard before the I.I.C. of Pipili Police Station. As the allegation made in the F.I.R. revealed a cognizable of¬fence the I.I.C. registered the case under Section 7 of the E.C. Act and directed S.I. Mr. P.R. Satpathy to investigate into the case.As per the direction, S.I. P.R. Satpathy visited the spot, seized the kerosene along with the case, prepared seizure list in respect thereof, arrested the accused/petitioner, forwarded him to Court and after completion of investigation finding a prima facie case under Section 7 of E.C. Act submitted charge sheet against him. 3. After going through the case diary and the Final Form, the J.M.F.C. Pipili, took cognizance of the offence under Section 7 of the E.C. Act on 11.10.2004. The accused/petitioner has challenged this order of taking cognizance and prayed to quash the same by exercising the extraordinary power conferred on this Court under Section 482 Cr.P.C. 4. Learned counsel appearing for the petitioner submitted that even if the entire prosecution case is accepted to be true, still then the petitioner cannot be liable for the offence under Section 7 of the E.C. Act. According to him, Charge sheet is silent with regard to violation of any specific Order in terms of Section 3 of the E.C. Act. So, the trial Court ought not to have taken cognizance of the offence under Section 7 of the E.C. Act against the petitioner. 5. Learned Addl. Standing Counsel submitted that even though Charge sheet is silent with regard to the Order violated, from the circumstances of the case it is clear that the petition¬er violated the notification dated 24.6.1982 published under Clause-8 of the Orissa Kerosene Control Order, 1962 since he was found in possession of more than ten liters of kerosene. 5. Learned Addl. Standing Counsel submitted that even though Charge sheet is silent with regard to the Order violated, from the circumstances of the case it is clear that the petition¬er violated the notification dated 24.6.1982 published under Clause-8 of the Orissa Kerosene Control Order, 1962 since he was found in possession of more than ten liters of kerosene. 6. Under Clause-8 of the Orissa Kerosene Control Order, 1962, the State Government published notification in the Orissa Gazette Extraordinary No.951 dated 24.6.1982 which reads as follows :- “S.R.O. No.264/82- In supersession of Food and Civil Supplies Department Order No.20213- PL.I.C.26/79, dated the 23rd May 1979 as amended by order No.7635-P.L.IC. 26/79/, dated the 23rd February 1980, the State Government in exercise of the powers conferred by Clause 8 of the Orissa Kerosene Control Order, 1962 do hereby direct that no person other than a dealer or an oil company shall store or have in his possession kerosene in quanti¬ty exceeding ten litres at a time.” 7. So, the learned Addl. Standing Counsel submitted that no person other than a dealer or an oil company can legally store or have in his possession more than ten litres of kerosene at a time. Since the petitioner was found in possession of 40 litres of kerosene, he being not a dealer or an oil company shall be liable for the offence under Section 7 of the E.C. Act. 8. Learned counsel for the petitioner further submitted that the aforesaid Order would be applicable only to a dealer. Admittedly, the petitioner not being a dealer, it cannot be ap¬plicable to him. Of course had there been any material to show that in the garb of a consumer he was carrying the kerosene in question for sell, he would have been liable for violation of the said order. In support of his submission he relied upon the Divi¬sion Bench decision of this Court in Puspa Ranjan Patel v. State of Orissa; (1994) 7 OCR 538 where, it has been held: “We, therefore, answer the question by stating that the Orissa Kerosene Control Order, 1962 does not apply to a consumer. We, however, make it clear that a person who poses to be a con¬sumer but is really found to be doing business in Kerosene would be covered by the Control Order, and that would depend upon the facts of each case.” 9. We, however, make it clear that a person who poses to be a con¬sumer but is really found to be doing business in Kerosene would be covered by the Control Order, and that would depend upon the facts of each case.” 9. Went through the case diary. There is no material whatsoever to show that the petitioner was carrying the kerosene seized, for business purpose. Learned Addl. Standing Counsel again submitted that as per the Division Bench decision cited above, the Kerosene Control Order does not apply to a consumer. But there is nothing in the record to show that the petitioner is a consumer of kerosene. So the decision of the Division Bench would not be attracted to the present case. The prosecution allegation is that the petitioner was in possession of more than ten litres of kerosene. So, it is the admitted case of the prose¬cution that the petitioner is a consumer. Moreover, it is not the case of the prosecution that the petitioner, not being a consumer was in possession of 40 litres of kerosene. So, the submission of the learned Addl. Standing Counsel shall not hold good. The decision cited above would squarely be applicable to the present case. In my considered opinion even if the prosecution case, as it is,accepted as true, still then the petitioner cannot be liable for the offence under Section 7 of the E.C. Act. So there is no meaning in continuing the proceeding against him. Under such circumstances, the CRLMC is allowed and the order dated 11.10.2004 passed by the J.M.F.C., Pipili in G.R. Case No.325 of 2004 is quashed. CRLMC allowed.