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2006 DIGILAW 785 (ORI)

Malla Bhima Rao v. State of Orissa

2006-11-14

A.K.SAMANTARAY

body2006
JUDGMENT A. K. SAMANTARAY, J. : This Criminal Appeal is directed against the judgment and order of conviction passed by learned Special Judge, Koraput, Jeypore, camp at Gunupur, dated 3rd May, 1988 in T.R. No.15 of 1987 convicting the appellant/accused under Section 7(1) (a) of the Essential Commodities Act (for short, “E.C. Act”) and sentencing him to undergo R.I. for three months and to pay a fine of Rs.500/-, in default to undergo imprisonment for a further period of 15 days. 2. The factual foundation on which the prosecution based its case is reproduced in the following paragraph. 3. The accused, M.V. Rao has a grocery shop in village Derigam and he deals in essential commodities in the said shop. On 21.11.1986 the checking squad consisting of the Revenue Offi¬cer-cum-Executive Magistrate Sri M. Mallick, Assistant Civil Supplies Officer Sri B. C. Panda, Supervisor of Supplies, Gunupur Sri John Mosses Cotton and Supply Inspector, Gunupur, Sri John Mosses Cotton and Supply Inspector, Gunupur, Sri B. Sudarsan Rao checked the shop reaching there at about 6 P.M. By the time of their arrival the accused was busy in transacting his business with the customers. On verification of his shop the checking squad found Rose Brand Match Boxes 30 Gross, Green Gram 45 Kgs., Suji 12 Kgs., Green Dal 32 Kgs, Black Gram 1.04 quintals, Free sale Sugar 16 Kgs. And Mung Dal 5 Kgs. All these articles being essential commodities, the accused was required to display a board showing the stock and prices as per the provisions of Clause 3 of Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. But the accused had not displayed any such board in any conspicuous place of the shop. Hence, the checking squad made weighment of the aforesaid articles as per the weighment chart, seized the same under a seizure list and in presence of witnesses and gave the articles in zima of the Busi¬ness Manager, R.C.M.S., Gunupur. At that time the accused gave a voluntary statement which was recorded and ultimately a Prosecu¬tion Report under Section 7 of the E.C. Act was lodged against the accused. 4. Since the accused pleaded not guilty the prosecution examined Sri John Moses Cotton as P.W.1, Sri Bairagi Charan Panda as P.W.2 and Sri B. Sudarsan Rao as P.W.3 and rest of the prosecution witnesses were declined by the prosecution. 4. Since the accused pleaded not guilty the prosecution examined Sri John Moses Cotton as P.W.1, Sri Bairagi Charan Panda as P.W.2 and Sri B. Sudarsan Rao as P.W.3 and rest of the prosecution witnesses were declined by the prosecution. The weighment chart was exhibited as Ext.1, seizure list as Ext.2, Zimanama as Ext.3 and statement of the accused as Ext.4 on behalf of the prosecution. 5. The accused took a plea of denial and as is revealed from the cross-examination of the witnesses and as his examina¬tion under Section 313 Cr.P.C., at the time of checking the shop of the accused was closed and as such there was no necessity for displaying the board. It is his plea that in his absence from the village as he had been to his village Raduguda for cultivation purpose, his wife was asked to give the key and to open the shop. The checking staff, after the shop was opened by his wife, found the stock to be correct according to the board, which was inside the shop and as such the accused had not committed any offence. In support of his plea the accused examined two DWs, namely, Gangadhar Goud PW1. and Ladi Bhaskar Rao PW.2 who are also witnesses and signatories to Exts.1, 2 and 4. 6. On a critical appraisal of evidence of the three PWs who have consistently stated that they went and checked the business premises of the accused, i.e., grocery shop which was opened and the accused was transacting business with the custo¬mers and also critically examined the statement of the defence witnesses and dealing with the exhibits marked on behalf of the prosecution the learned Special Judge placed full reliance on the evidence of the prosecution witnesses, disbelieved the defence version put forth through the DWs and found that there was clear violation of Clause 3 of the Orissa Declaration of Stock and Prices of Essential Commodities Order, 1973 and ultimately held the accused guilty under Section 7 (1) (a) of E.C. Act and sen¬tenced him as noted above. 7. Learned counsel appearing for the appellant laid much stress on the plea of the accused that at the relevant time his shop was closed, there was absolutely no transaction of business and that the checking squad asked his wife to open his shop and falsely implicated him in this case preparing some fake documents. 7. Learned counsel appearing for the appellant laid much stress on the plea of the accused that at the relevant time his shop was closed, there was absolutely no transaction of business and that the checking squad asked his wife to open his shop and falsely implicated him in this case preparing some fake documents. In this connection, it was countered by the learned Addl. Standing Counsel appearing for the State that this plea of alibi taken by the accused/appellant has not been proved by him and it is well settled that onus of proving the same is quite heavy on the accused who wants to take benefit of such of plea of alibi. He argued that no witness from his native village he claims to have gone for agricultural purpose has been examined as DW nor his wife who was present and opened the shop at the in¬stance of the checking squad has come to the dock to speak that the accused was actually absent from home and that the shop was closed. The learned Special Judge has very critically assessed the evidence adduced on behalf of the prosecution as well as the accused and has disbelieved the version of DWs branding them as untruthful witnesses. It would not be out of place to note here that DW-1 is no other than a Sarapanch for the last four terms and DW-2 is a smart person who would not have lent their sig¬natures on the exhibits without knowing the contents of the docu¬ment. The learned Special Judge has also observed that he had the occasion to see these two witnesses in the witness box and he had closely marked their demeanour during the course of their exami¬nation in his Court and I have reassessed the evidence on record with reference to the observations made by the Special Judge in the body of the judgment and I find absolutely no reason to differ from his finding that this accused had contravened the relevant Clause 3 for which he found him liable under Section 7(1) (a) of the E.C. Act. The Special Judge has also observed that the offence is an economic offence and the accused being a businessman having average intelligence and not being a person of the age under 18 years nor an old or crippled person and for that he was not entitled to the benefit of Probation of Offenders Act. 8. Since I have found that there is absolutely no reason to differ from the finding of the learned Special Judge and since I find that the sentence awarded on conviction of the accused is not at all excessive, I am not inclined to interfere with the order of conviction passed and the sentence awarded. 9. In the result, the Criminal Appeal fails and is hereby dismissed. 10. The accused appellant shall surrender before the Spe¬cial Judge, Jeypore within one month from the date of pronounce¬ment of this judgment and if he fails to do so the Special Judge shall procure his attendance through coercive measures for his undergoing the sentence awarded. Appeal dismissed.