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2007 DIGILAW 737 (ORI)

State of Orissa v. Duryodhan Sahu

2007-09-21

R.N.BISWAL

body2007
JUDGMENT R. N. BISWAL, J. The State of Orissa assails the judgment dated 11.8.1992 passed by the Sessions Judge-cum-Special Judge, Ganjam, Berhampur in G.R.Case No. 8 of 1990 (V) (T.R.No. 9 of 1990) wherein he acquitted the accused-respondent. 2. Succinctly stated, the prosecution case is that on 6.4.1990, the Inspector of Vigilance Special Squad, Berhampur (P.W.7), raided the business premises and the residential house of the accused-respondent in presence of Inspector of Commercial Taxes, Vigilance Unit, Berhampur (P.W.2), A.C.S.O., Berhampur (P.W.3) and Inspector of Supplies, Berhampur (P.W.5) and recov¬ered 165 Kgs. of ground-nut oil, 170 kgs. of til oil, 124 kgs. of mustard oil, 115 kgs. of niger oil, 163 kgs. of refined oil, 110.900 kgs. of coconut oil and prepared two seizure lists in respect thereof, copies of which were given to the accused-respondent in token of which he put his signature on both the documents. As the accused-appellant failed to produce any authority in support of his possession of the edible oil, P.W.7 reported the incident in writing to the S.P., Vigilance, Berham¬pur, who directed P.W. 1 to register the case and accordingly, the case was registered. On the direction of the S.P. Vigilance, P.W.7 took up investigation, in course of which, he examined the witnesses and on the eve of his transfer, made over charge of the case to his successor (P.W.6), who after completion of investiga¬tion submitted charge-sheet against the accused-respondent under Section 7 of the Essential Commodities Act (hereinafter referred to as “E.C.Act”) on the allegation that he violated Clauses 3 of Orissa Pulses and Edible Oils Dealers’ (Licensing) Order, 1977. 3. In order to bring home the charge against the accused-respondent, prosecution examined 7 witnesses and the accused-respondent examined two witnesses to establish that the til oil seized from his residence, belonged to D.W.1 and that no sealed til oil was recovered from his shop premises. 4. After assessing the evidence on record, the trial Court acquitted the accused-respondent on the ground that there was no satisfactory evidence to show that the accused-respondent was found in possession of more than 5 quintals of edible oil. 5. Being aggrieved with the said order of acquittal, the State of Orissa has come in Appeal before this Court as stated earlier. Mr. S. Behera learned Addl. Govt. Advocate contends that the seizure lists (Exts. 5. Being aggrieved with the said order of acquittal, the State of Orissa has come in Appeal before this Court as stated earlier. Mr. S. Behera learned Addl. Govt. Advocate contends that the seizure lists (Exts. 2 & 3) show that more than 5 quintals of edible oil were seized from the shop premises and residential house of the accused-respondent.When the accused-respondent himself has put his signature on those two documents admitting the contents thereof to be true, the trial Court ought not to have acquitted the accused-respondent. Per contra, Mr. S.D.Das, learned Senior Counsel appearing for the accused-respondent submits that from the evidence on record it is quite clear that prosecution has miserably failed to establish that in fact, more than 5 quintals of edible oil were recovered from the shop prem¬ises and residential house of the accused-respondent. 6. In view of the rival contentions of the learned counsel for the parties, now it is to be seen whether or not prosecution could prove beyond all reasonable doubt that more than 5 quintals of edible oil were recovered from the shop premises and residential house of the accused-respondent. Prosecution mainly relied upon the evidence of P.Ws. 2, 5 and 7 to establish its case. On perusal of the evidence of P.W.2, Inspector of Commer¬cial Taxes, it is found that on the relevant date, he made physical verification of the stock in the business premises and the residential house of the accused-respondent and prepared a list of the stocks, but the said list is not there in the record. He further deposed that P.W.7 seized the stock of edible oil found in the shop premises and the residential house of the accused-respondent. But his evidence is not specific with regard to the quantum of edible oil said to have seized from the shop premises and the residential house of the accused-respondent. According to him, the sealed tins of edible oil recovered were not weighed, but the other tins were weighed by P.W.7. If, in fact, weighment of the seized edible oil was made, then a weigh¬ment chart was expected to be prepared, but no such chart was prepared, as would be clear from the evidence of P.W.7, who seized the edible oil. If, in fact, weighment of the seized edible oil was made, then a weigh¬ment chart was expected to be prepared, but no such chart was prepared, as would be clear from the evidence of P.W.7, who seized the edible oil. According to the evidence of P.W.5, five quintals of different varieties of edible oils were recovered and seized from the business premises of the accused-respondent under seizure list Ext. 2, and 5 tins, each containing 15 kgs. of til oil were recovered and seized from his residential house, under seizure list Ext. 3. His evidence is conspicuously silent with regard to the varieties of edible oil. On perusal of the evidence of P.W.7, it is found that he seized 165 kgs. of groundnut oil, 170 kgs. of til oil, 138 kgs. of mustard oil, 115 kg. of niger oil, 173 kgs. of refined oil and 110.900 kgs. of coconut oil from the shop premises of the accused-respondent under seizure list, Ext. 2. P.W.6 has rightly admitted that coconut oil is not edible. So as per the evidence of P.W.7, the grand total of edible oil seized from the shop premises of accused-respondent comes to 7.61 kgs. P.W.7 further deposed that he seized 5 tins of til oil weighing 75 kgs. from the residential house of the ac¬cused-respondent. During cross-examination he deposed that he made weighment of the seized oil, but fairly admitted that he did not prepare any weighment chart. As discussed earlier according to the evidence of P.W.2 the oil contained in sealed tins were not weighed. So, the evidence of P.W.7 that he weighed the seized edible oil does not inspire confidence, particularly in absence of any weighment chart. As discussed earlier the evidence of P.W.2 is silent with regard to the quantum of oil said to have been seized from the shop and residential house of accused-respondent. There is also no consistency in the evidence of P.Ws. 5 and 7 with regard to the quantum of edible oil seized. Had there been a weighment chart it would have lent some support to the evidence of P.W.7 that he seized more than 5 quintals of edible oil from the shop and residential house of the accused-respondent. Furthermore, it is seen from the evidence of D.W.1 that the til oils of 75 kgs. recovered from the house of the accused-respondent belonged to him. Furthermore, it is seen from the evidence of D.W.1 that the til oils of 75 kgs. recovered from the house of the accused-respondent belonged to him. According to him, the ac¬cused-respondent is the son of his maternal uncle. About 2 years back, he brought til seeds from his village Pandia, to Berhampur for extracting oil, got the same extracted and, kept the oils in 5 tins in the house of the accused-respondent. Two days after, when he came to the house of accused-respondent he knew that the same had been seized by P.W.7. Nothing substantial could be elicited from him during cross-examination to impeach his credi¬bility. So, the probability of his keeping the til oils in the house of the accused-respondent cannot be ruled out. 7. The contention of Mr. S. Behera, learned Addl. Govt. Advocate that when the accused-respondent put his signatures in the seizure lists Exts. 2 and 3 and took zima of the seized articles and executed a zimanama in respect thereof under Ext. 4, he cannot deny the correctness of those documents. In this regard the trial Court has rightly held that putting signatures in seizure lists and zimanama by accused-respondent is not an incriminating circumstance against him. So the contention of Mr. Behera cannot be accepted. 8. As rightly held by the trial Court, prosecution failed to prove beyond all reasonable doubts that the accused-respondent was found in possession of 5 quintals or more of edible oil. It also failed to prove that the accused-appellant was dealing in edible oil. It is the established principle of law that if the finding of the trial Court is a plausible one, the appellate Court should not interfere with it, even if a second view could be possible. In the case at hand, the finding of the trial Court cannot be branded as unreasonable. Moreover, the alleged incident took place on 6.4.1990. The accused-respondent suffered the ordeal of trial till 11.8.1992. Again, this appeal is pending before this Court since 1993. At this belated stage, it would be travesty of justice to set aside the order of acquittal and record an order of conviction. 9. Therefore, under such premises, I am not inclined to interfere with the finding of the trial Court and accordingly, the appeal stands dismissed. Appeal dismissed.