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2008 DIGILAW 152 (ORI)

RAMBHALAL SAHU v. STATE OF ORISSA

2008-02-19

A.S.NAIDU

body2008
JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction passed by the Learned Special Judge-cum-Sessions Judge, Kalahandi, Bhawanipatna in G.R. Case No. 62 of 1988 is assailed in this appeal. 2. On the basis of an FIR (Ext. 15) filed by PW8 who was the Supply Inspector at Boden Police Station, the criminal action was set in motion against the Appellants. It was stated in the FIR that Appellant No. 1 was the Secretary and Appellant No. 2 was the Salesman of Khaira Service Co-operative Society. The said Service Co-operative Society (for short 'SCS') was a dealer in control commodities. On 9-5-1988, nineteen tins of Palmolein oil had been supplied by the BDO, Boden to the SCS for distribution to the consumers. Being directed by the BDO, the informant Supply Inspector (PW8) had been to the aforesaid SCS for verification of the Stock of Palmolein oil on 9-5-1988 and 10-5-1988 but as the Appellants were absent in the SCS, he could not verify the stock. Thereafter on 12-5-1988 he again went to the, SCS along with the BDO (PW4) and still finding the Appellant not there, the said two witnesses sealed the godown of the SCS. On 13-5-1988 PWs 4 and 8 along with the ACSO, Nawapara (PW5) and the Nizarat Officer-cum-Executive Magistrate, Nawapara (PW6) made physical verification of the Stock of Palmolein Oil in the godown of the SCS in presence of other witnesses and found only nine tins of oil out of nineteen tins. On the basis of the FIR investigation was made, charge-sheet was submitted against the Appellants for alleged contravention of Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 punishable u/s 7 of the Essential Commodities Act, 1956. 3. The defence of the Appellants was that though 19 tins of oil had in fact been supplied to the SCS, due to shortage of space in the godown of the SCS only 9 tins had been lifted from the Khariar SCS and the rest 10 tins were left with that SCS. They denied the charge framed against them. 4. 3. The defence of the Appellants was that though 19 tins of oil had in fact been supplied to the SCS, due to shortage of space in the godown of the SCS only 9 tins had been lifted from the Khariar SCS and the rest 10 tins were left with that SCS. They denied the charge framed against them. 4. In order to prove its case the prosecution got eleven witnesses examined, of whom PW1 was the Peon of the Khariar SCS, PWs 2 and 3 were seizure witnesses, PW4 was the BDO, PW5 was the ACSO, PW6 was the Executive Magistrate, PW7 was the Secretary of Khariar SCS, PW8 was the Supply Inspector (informant), PW 9 was a cart-man who transported the oil tins from Khariar SCS, PW 10 was the President of the said SCS and PW 11 was the I.O. After scrutinizing the evidence threadbare, the Trial Court disbelieved the defence story and came to the conclusion that prosecution had proved its case beyond all reasonable doubts and convicted the Appellants of the charge and sentenced them to undergo R.I. for six months and to pay a fine of Rs. 1,000.00 each, in default to undergo further R.I. for three months. 5. According to Dr. Tripathy, Learned Counsel appearing for the Appellants, there was no iota of evidence to prove that in fact the Appellants had lifted 19 tins of oil issued in favour of their Society. The evidence of P.W.9 the cart-man who had been entrusted to lift 19 tins of oil from Khariar SCS to Khaira SCS coupled with the evidence of PW7 the Secretary of Khariar SCS unerringly show that in fact as the cart due to lack of space did not permit to lift all the 19 tins of oil PW9 had lifted only 9 tins and had left the rest 10 tins at Khariar SCS itself. Thus the findings recorded by the Trial Court that the charge against the Appellants had been established being not sustainable, the conviction and sentence passed against the Appellants are to be set aside and they are to be acquitted of the charge. Mr. Thus the findings recorded by the Trial Court that the charge against the Appellants had been established being not sustainable, the conviction and sentence passed against the Appellants are to be set aside and they are to be acquitted of the charge. Mr. Das, Learned AGA appearing for the State on the other hand submitted that once the stock of oil had been supplied to the society of the Appellants, it was to be presumed that they had received the same and it was for them to explain the missing stock. Referring to Ext. 2 and the evidence of PW8 he submitted that in fact the Appellants had acknowledged receipt of 19 oil tins and admittedly only 9 tins were available at the time of physical verification. 6. This Court heard Learned Counsel for both sides at length and perused the materials available on record. PW1 who was the Peon in the SCS has clearly stated in his deposition that the Appellants had lifted only 9 tins of oil in the month of August and had kept the same in the stock. In his cross-examination he reiterated the same statement and added that the Appellants had told him that out of 19 tins of oil they could lift only 9 tins and 10 tins due to shortage of space in the cart could not be transported. PWs 2 and 3 were witnesses to the seizure of 9 tins of oil. PW4 who was the BDO had stated before the Court that he had received a report as to arrival of 19 tins of oil from the salesman of Khairar SCS on 9-5-1988 and had asked the Supply Inspector to make stock verification. In cross-examination he had admitted that the Appellant Secretary did not submit any arrival report of aforesaid oil to him. PW5 was the ACSO in whose presence 9 tins of oil was seized from the godown of the Appellants' society. P.W6 was the Nizarat Officer who was present at the time of seizure. In cross-examination he had admitted that the Appellant Secretary did not submit any arrival report of aforesaid oil to him. PW5 was the ACSO in whose presence 9 tins of oil was seized from the godown of the Appellants' society. P.W6 was the Nizarat Officer who was present at the time of seizure. P.W7 was one of the main witnesses, being the Secretary of Khariar Society and he had clearly stated that he was told by the Assistant Secretary of his Society that the Appellants could not arrange conveyance to lift the 19 tins of oil and in his cross-examination he further clarified by stating that since the Appellants could not arrange any conveyance they had lifted only 9 tins in a bullock cart leaving the rest 10 tins. Subsequently police seized those 10 tins and kept under his Zima. He also stated that no truck or jeep used to go to village Khaira even during summer days. P.W8 was the Supply Inspector, the informant. He stated in his deposition that he was informed by the BDO that the Appellants had lifted 19 tins of Palmolein oil and was directed by the said authority to go to the godown of the society of the Appellants for a physical verification of the said oil-tins in the stock on the same day. Accordingly he had visited the go down twice and finally conducted verification of the stock in presence of an Executive Magistrate, ACSO and BDO and could find only 9 tins of oil instead of 19. P.W9, the cart-man, was the eyewitness. He had been personally entrusted to transport the 19 tins of oil. He clearly deposed before the Court below that due to shortage of space in his cart he was not in a position to transport all the 19 tins of oil and he could transport only 9 tins leaving 10 tins in the Khariar SCS. He clearly stated that he had transported only 9 tins from Khariar SCS to Khaira SCS. This witness was declared hostile by the prosecution and was cross-examined, but then noting could be elicited from his statement to discredit him. P.W.11 was the investigating officer who in his cross-examination admitted that he had seized 10 tins of oil on production by the Asst. Secretary of Khariar SCS. 7. This witness was declared hostile by the prosecution and was cross-examined, but then noting could be elicited from his statement to discredit him. P.W.11 was the investigating officer who in his cross-examination admitted that he had seized 10 tins of oil on production by the Asst. Secretary of Khariar SCS. 7. The evidence of the investigating officer P.W.11 coupled with the evidence of P.W.7 leads to an irresistible conclusion that though 19 tins of Palmolein oil had been issued in favour of Khaira SCS of which the Appellants were the Secretary and Store-keeper respectively, only 9 tins could be lifted from Khariar SCS by the cart-man P.W.9. P.W.7, the Secretary of Khariar Society, has admitted this fact and he clearly stated that 10 tins out of 19 tins allotted in favour of Khaira SCS were with his society which were seized by police later on. P.W.11 the I.O. has admitted this fact and has stated that 10 tins of oil belonging to and/or issued in favour of Khaira SCS were seized by him from the Secretary of Khariar SCS. All these statements make it clear that though 19 tins of oil had been supplied to Khaira SCS, only 9 tins had been transported/lifted and the rest 10 tins were very much available at the Khariar SCS which were seized by police. The said 10 tins could not be transported due to want of space in the cart. 8. After perusing the entire prosecution evidence this Court finds that there is absolutely no iota of evidence to reveal that any quantity of Palmolein oil issued in favour of Khaira SCS of which the Appellants were the Secretary and Storekeeper respectively had been misappropriated or pilfered. All the 19 tins of oil had been accounted for. Thus none of the ingredients of charge levelled were conclusively established. Consequently this Court is satisfied that the Trial Court having not properly considered the evidence, the judgment of conviction passed by it cannot the sustained. 9. For the aforesaid reasons, this Court allows the Criminal Appeal, sets aside the conviction of the Appellants and the sentences passed thereunder and acquits the Appellants of the charge. Appeal allowed. Final Result : Allowed