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2008 DIGILAW 1011 (ORI)

Rajkishore Patra @ Subudhi v. State of Orissa

2008-11-12

PRADIP MOHANTY

body2008
JUDGMENT PRADIP MOHANTY, J. — This appeal arises out of the judgment and order dated 25.05.1988 passed by the Special Judge, Koraput, Jeypore in T.R. Case No. 44 of 1986 convicting the appellant under Section 7 (i) (a) of the Essential Commodities Act, 1955 and sentencing him to undergo rigorous imprisonment for three months and to pay fine of Rs.1,000/- (one thousand) in default to undergo rigorous imprisonment for a period of twenty days more. 2. The case of the prosecution is that the accused had a grocery shop at Mathelput under Damanjodi P.S. On 15.09.1983, the then Inspector of Supplies with the S.D.O., Koraput and Tahasil¬dar, Pottangi visited that grocery shop at about 4 P.M. the accused-appellant was then present and he was dealing with the customers. On verification, in the shop premises a stock of 14 quintals of rice in 14 gunny bags, 4 quintals of sugar in 4 gunny bags, 5 tins of Niger Oil each containing 16 K.Gs. net and 4 tins of Tusar brand Dalda (Vanaspati) each containing 16 K.Gs. were found. Accused-appellant had no licence or permit to possess rice exceeding ten quintals. He had also not displayed a Board showing the stock and prices of the essential commodities like, rice, sugar, edible oil and ghee and thereby contravened the provisions of Clause 3 of Order, 1965 and Clause 3 of the Order, 1973. The stocks of the aforesaid articles were seized and were given in Zima of the accused-appellant. Ultimately, F.I.R. was lodged after obtaining the approval from the Collector on 5.04.1986. Officer-in-charge, Damanjodi Police Station investi¬gated the case and submitted charge-sheet. 3. The plea of the accused-appellant was complete denial of the allegation. His specific plea was that at the time of search the shop was closed. Only after reopening the same, the C.S.O. and S.D.O. found four bags of rice weighing four quintals. But ten quintals of rice was found from another room situated behind the grocery shop and the said stock did not belong to him. 4. In order to prove its case, the prosecution examined as many as three witnesses and exhibited five documents. P.W.1 is the Inspector of Supplies, P.W.2 is the Tahsildar and P.W. 3 is the I.O. The defence examined only one witness, namely Sabarmal Agarwala, a nearby shopkeeper. 5. 4. In order to prove its case, the prosecution examined as many as three witnesses and exhibited five documents. P.W.1 is the Inspector of Supplies, P.W.2 is the Tahsildar and P.W. 3 is the I.O. The defence examined only one witness, namely Sabarmal Agarwala, a nearby shopkeeper. 5. The learned Special Judge, Koraput, Jeypore, who tried the case, by his judgment dated 25.05.1988 found the appellant guilty of the offence under Section 7 (i) (a) of Essential Com¬modities Act, 1955 and sentenced him as mentioned above. 6. Mr. Das, learned counsel for the appellant, submits that the trial court has illegally passed an order of conviction as the prosecution case itself was not maintainable. He also submits that no independent witness has been examined by the prosecution. There are also major contradictions in the evidence of the prosecution witnesses. Lastly, he submits that there is inordinate delay in lodging the F.I.R. and on that ground alone, the appellant cannot be held guilty under Section 7 (i) (a) of the Essential Commodities Act, 1955. In support of his conten¬tion, he relied upon decisions in Thulia Kali Vr. State of Tamil¬nadu, AIR 1973 SC 501 ; Ram Jag and others Vrs. The State of Uttar Pradesh, AIR 1974 SC 606 and Pulin Bihari Patnaik Vrs. State of Orissa, 1974 CLR 513. 7. Mr. Pattnaik, learned Addl. government Advocate vehe¬mently contends that no illegality or infirmity having been committed by the trial court, there is no reason to interfere with the impugned judgment. Moreover, evidence of the Prosecution witnesses is very clear and cogent and there is no discrepancy in the same. He also submits that delay in lodging the F.I.R. has been satisfactorily explained by the prosecution. 8. Perused the judgment and decisions cited by the par¬ties. In the instant case the shop was raided on 15.09.1983 and the F.I.R. was lodged on 05.04.1986. F.I.R. has been proved as Ext.4 by P.W.1 and P.W.3. But charge-sheet has not been proved by the prosecution. Perusal of the oral and documentary evidence shows that no explanation has been given by the prosecution for the delay in lodging the F.I.R. Delay in lodging F.I.R. quite often results in embellishment which is a creature of afterthought. It is, therefore, essential that the delay in lodging the F.I.R. Should be satisfactorily explained. Perusal of the oral and documentary evidence shows that no explanation has been given by the prosecution for the delay in lodging the F.I.R. Delay in lodging F.I.R. quite often results in embellishment which is a creature of afterthought. It is, therefore, essential that the delay in lodging the F.I.R. Should be satisfactorily explained. In the instant case F.I.R. was lodged on 05.04.1986, i.e., after two and half years of the occurrence and prosecution has not whispered a single work in explaining the delay. The delay raises a cloud of suspicion on the veracity of the prosecution case. By applying the ratio decided in Thulia kali, Ram Jag and others and Pulin Bihari Patnaik (supra) this Court is of the opinion that the prosecution has not come with clean hand since F.I.R. was lodged after undue delay so as to afford enough scope for manipulating the evidence. 9. In the result, the Criminal appeal is allowed and the impugned order of conviction and sentence passed against the appellant is set aside and he is acquitted of the charge. Appeal allowed.