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2014 DIGILAW 196 (ORI)

Mahammad Harun v. State of Orissa

2014-03-26

D.DASH

body2014
JUDGMENT : The appellant having been convicted by the learned Special Judge, Koraput in T.R. Case No. 47 of 1988 for offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for contravention of Clause 3 of the Orissa Rice and Paddy Control Order and having been sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 1000/- in default undergo rigorous imprisonment for 2 months has filed this appeal. 2. Prosecution case in short is that on 11.12.1987 morning around 3 A.M. the Marketing Inspector while patrolling in the border area of State of Orissa and Madhya Pradesh detected 4 carts loaded with paddy, moving towards Madhya Pradesh. He then detained the carts and the persons incharge of those carts stated that the paddy carried in those carts belonged to the present appellant and that as per his instruction they were transporting the same to Madhya Pradesh. It is also their statement that the appellant had purchased the paddy from the Kesinga weekly market on the previous day and had engaged those four cartmen to transport the paddy bags to his village in the State of Madhya Pradesh. As the cartmen could not produce any licence/permit in this connection, the paddy bags were seized and on weighment those found to contain 15 quintals and 37 kgs. of paddy. The statement of the present appellant is said to have also been recorded by this Marketing Inspector, wherein he said to have stated to have been doing regular business in purchase and sale of rice and paddy. In view of above, prosecution was launched against the appellant for having committed offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for contravention of Clause 3 of the Orissa Rice and Paddy Control Order 1955. The appellant has taken the plea of denial. Prosecution when has examined five witnesses such as P.W.1 the Marketing Inspector and P.W.2 to 5 the carts men, the defence has examined himself and another. 3. Learned Special Judge on analysis of the evidence and the relevant provision of law has finally found the appellant to have contravened the provision of the Control Order and therefore has found the appellant to be guilty of committing offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 which is under challenge before this Court. 4. 3. Learned Special Judge on analysis of the evidence and the relevant provision of law has finally found the appellant to have contravened the provision of the Control Order and therefore has found the appellant to be guilty of committing offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 which is under challenge before this Court. 4. Learned counsel for the appellant at the outset submits that even accepting for a moment that there was seizure of 15 quintal and 37 kgs. of paddy by P.W.1 from the four carts which were being then carried, no offence can be said to have been committed by the appellant. It is his submission that, as provided in Clause 2-B of the Control Order, a 'dealer' can be said to a person engaged in business of purchase or sale of rice or paddy or rice and paddy taken together in quantity exceeding 5 quintals or of storage for sale of rice or paddy or rice and paddy taken together in quantities exceeding 10 quintals at any time and it excludes a cultivator or landlord in respect of rice or paddy being produce of land cultivated or owned by him. In the present case according to the very case of prosecution, the paddy having, been seized while on transit in the carts, the same cannot amount to storage and therefore the prosecution is to be held to be misconceived. So, he contents that the appellant cannot be found guilty of convention of the provision of Clause 3 of the Control Order, when it is also not the case of prosecution nor any such evidence is led to show that the appellant was doing business of purchase or sale of paddy which also cannot be presumed from one instance in the absence of proof of regularity. 5. Learned counsel for the State supports the finding rendered by this learned Special Judge. It is his submission that in this case the prosecution having established by leading clear cogent acceptable evidence through P.W.1 and P.W.2 to 5 that the paddy belonged to the appellant, even if the goods and the rice were on transit, the same can be said to have been, stored by the appellant. Therefore, he contends that the order of conviction and sentence is not liable to be interfered with. Therefore, he contends that the order of conviction and sentence is not liable to be interfered with. In view of such rival submission, if first of all requires consideration that whether accepting for a moment that there was seizure of the paddy weighing 15 quintals and 37 kgs., can there be a finding of contravention' of Clause (3) of the Control Order. 6. Learned Special Judge has placed reliance on the decision of this Court in case of B.K. Agarwala v. State; 1989 (I) OLR 66. The aforesaid case had been carried to the apex Court and has been reported in 1996 (2) OCR (SC) 573. The question that came up for consideration is whether paddy loaded in truck in excess of the permissible limit while on transit can be deemed to have been 'stored' within the meaning of the word storage in the said Control Order. Referring to the dictionary meaning the word ‘stored’ "Black's Law Dictionary and Webster's Comprehensive Dictionary, (International Edition) as well as Concise Oxford Dictionary, it has been held that 'storing' has an element of continuity as the purpose is to keep the commodity in store and retrieve it at some future date, even within a few days. If goods are kept or stocked in a warehouse, it can be immediately described as an act of 'storage'. A vehicle can also be used as a storehouse. But, whether in a particular case, a vehicle would be a matter of fact in each case. Carrying goods in a vehicle cannot per se be 'storing' although it may be quite possible that a vehicle is used as a store. Transporting is not storing." 7. Adverting to the fact of the case as projected by the prosecution, the seizure of the paddy bags took place where those were being carried in four numbers of carts i.e., during transit and while being transported from one place to another and that too on the way. The prosecution case is not that the carts being loaded with the paddy bags were used as storage for being sold at different points. Mere transportation does not amount to contravention of the Control Order. Therefore, no offence 'under Section 7 of the Essential Commodities Act can be said to have been committed by the appellant even accepting the entire case of the prosecution as laid. The conviction and sentence thus is held unsustainable. 8. Mere transportation does not amount to contravention of the Control Order. Therefore, no offence 'under Section 7 of the Essential Commodities Act can be said to have been committed by the appellant even accepting the entire case of the prosecution as laid. The conviction and sentence thus is held unsustainable. 8. In the wake of aforesaid judgment of conviction and sentenced impugned in this appeal is set aside and accordingly the appeal stands allowed. Appeal allowed.