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2006 DIGILAW 858 (ORI)

State of Orissa v. Kelu Charan Panigrahi

2006-12-20

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. — This appeal has been filed against the judgment dated 4.12.1990 passed by the Learned Special Judge, Cuttack in G.R. Case No.18 of 1988. 2. From the facts of the case, it is revealed that on the information of the Inspector, Vigilance Cell, Cuttack lodged before the Superintendent of Police (Vigilance), Central Divi¬sion, Cuttack on 5.5.1988, a formal F.I.R. was registered under Section 7/9 of the Essential Commodities Act, 1955 (for short, ‘the Act’). After investigation, a P.R. was filed. It is the case of the prosecution that the respondent No.1-accused was a dealer of Essential Commodities under the Act. On 15.4.1988, the infor¬mant, Inspector of Vigilance Cell, visited the shop of the re¬spondent No.1 accused and conducted a surprise check with the help of Inspector, Shri S. B. Patnaik and Sub-Inspector, namely, Shri Prahallad Das. On perusal of the Books of Accounts and the stock register of the control commodities maintained by the respondent No.1, for the year 1987-88 in respect of sugar, wheat, mustard oil, kerosene oil and dal, he found that there was short¬age of 57kgs. of wheat as well as 21 litres of kerosene oil and sugar was found to be in excess by 52 kgs. along with excess dal of 3 kgs. 3. The proceeding being summary in nature, the learned trial Court after recording the statements made by the witnesses examined on behalf of the prosecution as well as one of the wit¬nesses examined by the defence and analyzing the said statements, came to the findings, in its judgment dated 4.12.1990, that the excess sugar which was found in possession of the accused was borrowed by him from D.W.1 who is admittedly another dealer. In respect to the shortage found in the stock of wheat, the learned trial Court considering the thirteen numbers of ration cards proved by the defence came to the conclusion that the said quant¬ity of wheat was distributed to the consumers. However, in respect of the excess quantity of dals, the same being negligible was not taken into consideration by the learned trial Court. 4. It is seen from the impugned order that the learned trial Court has meticulously examined the statements of the witnesses adduced by the prosecution before coming to the above conclusions. 5. However, in respect of the excess quantity of dals, the same being negligible was not taken into consideration by the learned trial Court. 4. It is seen from the impugned order that the learned trial Court has meticulously examined the statements of the witnesses adduced by the prosecution before coming to the above conclusions. 5. Learned counsel for the State took this Court through the details of the statements as made by the prosecution witness¬es and also contended that the observations of the learned trial Court in paragraphs-4 and 5 of the impugned judgment that it is the settled principle of law that the prosecution should show that the dealer had the mens rea or the intention in committing the alleged acts or irregularities and the prosecution in the present case has failed to prove mens rea or the guilty intention on the part of the accused persons are contrary to the provisions of Section 10-C of the Act. 6. Section 10-C of the Act provides that in any prosecution for the offence under the Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence. However, though the said provision entitles the Court to raise a presumption with regard to existence of the mens rea/culpable mental state on the part of the accused which is permitted to be rebutted by the accused, but it is needless to mention that unless an offence is proved, the question of raising a presump¬tion with regard to mens rea does not arise. It was, therefore, required on the part of the prosecution to prove that an offence has been committed under the Act by the accused persons though the prosecution was not required to prove that the accused had mens rea. On analyzing the evidence on record, the Court below has come to the finding that no offence under the Act was commit¬ted by the accused and/or the prosecution has failed to prove that the accused persons have committed an offence under the Act. In this view of the matter, the question of applicability of Section 10-C of the Act to the facts of the present case does not arise. In this view of the matter, the question of applicability of Section 10-C of the Act to the facts of the present case does not arise. I also do not find any perversity or illegality in the impugned judgment. 7. In view of the above, there is no merit in this appeal which is accordingly dismissed. Appeal dismissed.