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2014 DIGILAW 197 (ORI)

Samakurti Kameswar Rao v. State of Orissa

2014-03-26

D.DASH

body2014
JUDGMENT : 1. The appellant in this appeal has called in question the conviction passed by the learned Special Judge Koraput in T.R. Case No. 9 of 1991 convicting the appellant 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 1965 (in short, the Control Order) and the sentence imposed on him to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/- (five hundred) with default stipulation of undergoing rigorous imprisonment for three months. 2. Prosecution case is that on 02.06.1988, the Inspector of Supplies with his staff went to the shop of the appellant situated at daily market at Jeypore. On inspection, he found 19 quintals and 91 kgs. of rice to have been kept in 22 bags in his shop. The appellant could not produce any authority or licence for storage of such quantity of rice in his shop for which the stock was seized. On completion of enquiry, prosecution report was submitted against the appellant for contravention of the Clause (3) of the Control Order. The case of the defence is that the entire seized stock did not belong to him and it has been specifically stated to have been also belonging to one Raghunath Behera of village Phampuni. The appellant has also taken the plea that he has never admitted his guilt before any authority at any point of time by stating the seized stock of rice to have been owned and possessed by him. 3. Prosecution in the case has examined three witnesses out of whom P.W.1 is the Inspector of Supplies, P.W.2 is another Inspector of Supplies. One independent witness has been examined as P.W.3. 4. Defence has examined one witness namely Raghunath Behera who has claimed the seized rice of 13 quintals to be his own. 5. Besides the above, from the side of the prosecution the weighment chat has been admitted in evidence and marked as Ext. 1, seizure list has been marked as Ext. 2 and a statement said to have been made by the appellant has been admitted in evidence and marked as Ext. 3. 6. Learned Special Judge upon analysis of evidence of prosecution and also the evidence adduced from the side of the defence has found that these 19 quintals and 91 kgs. 1, seizure list has been marked as Ext. 2 and a statement said to have been made by the appellant has been admitted in evidence and marked as Ext. 3. 6. Learned Special Judge upon analysis of evidence of prosecution and also the evidence adduced from the side of the defence has found that these 19 quintals and 91 kgs. of rice found in the shop of the appellant had been stored by the appellant without any authority and as such having found the appellant to have contravened the provision of Clause 3 of the Control Order, he has been held guilty for commission of offence punishable under Section 7(1)(a)(11) of the Act. This order of conviction and sentence is now under challenge before this Court. It is settled position of law that a person acting in contravention of any of the Control Order promulgated by virtue of power conferred under Section 3 of the Act is liable to be punished under the provision of Section 7 of the Essential Commodities Act. 7. The sole point for consideration in the case is as to whether the appellant can be said to have contravened the provision of Clause-3 of the Control Order. For the said reason the factual finding is required to be given on the basis of the evidence that the appellant had stored this 19 quintals and 91 kgs. of rice without any authority and as such is a dealer coming within the ambit of the definition as provided in Clause 2(b) read with Clause 3(2) of Control Order. 8. Learned counsel for the appellant submits that accepting the factum of seizure of 19 quintals and 91 kgs of rice from the shop of the appellant for a moment, it has been established by the defence to have not been belonging to appellant in its entirety. The evidence adduced on that score is quite satisfactory and the person claiming to the owner the rice in part has been examined as D.W.1 and there remains no material to discard the said evidence. So, according to him the learned Special Judge has not considered the defence evidence at all much less to say that the same has been discarded. So, according to him the learned Special Judge has not considered the defence evidence at all much less to say that the same has been discarded. It is submitted that on proper appreciation of the said evidence, it can be said that the defence has dislodged the presumption as contained in Clause 3(2) of the Control Order, as regards the said storage being in contravention of the Control Order. Therefore, he submits that the conviction and sentence is untenable. Learned counsel for the State in support of the findings rendered by the learned Special Judge has gone to place the evidence adduced from the side of prosecution. It is his submission that the defence evidence cannot outweigh the evidence let in by the prosecution, establishing the storage of the said rice by the appellant. It is also his submission that the defence case has to be taken as an afterthought as to have been projected only with a view to wriggle out of the net of the present case. 9. On above rival submission, now it has to be decided as to whether the appellant on the basis of the evidence adduced from his side can be said to have not been in possession of the said quantity of rice and as such is not a dealer within the ambit of definition as provided in the Control Order. 10. Clause-3 of the Control Order lays down that no person shall act as dealer except under and in accordance with a licence issued in that behalf by the Licensing Authority Sub-clause 2 of that clause further lays down that for the purpose, any person who stores rice or paddy or rice and paddy taken together in quantity exceeding 10 quintals inside the State of Orissa shall unless contrary is proved be deemed to act as a dealer. The definition of the dealer in Clause 2(b) covers a person engaged in business of purchase or sale of rice or paddy or rice and paddy taken together in quantities exceeding 5 quintals or storage for sale of rice or paddy or rice and paddy taken together in quantities exceeding 10 quintals any time but it does not include a cultivator or land-lord in respect of rice or paddy being the produce of the land cultivated or owned by him. 11. 11. Now keeping the above provisions of law in mind and also the rival contentions the evidence is required to be scanned, so as to say whether this presumption as available in the case which is a rebuttable one, has been dislodged. In other words, whether the appellant has been able to prove to the contrary that he was not the person who can be attributed with this storage of said quantity of rice in his shop. 12. It is this settled position of law that when prosecution it to prove its case beyond reasonable doubt, the defence can establish its case by preponderance of probability. So, here in view of the submission made by the learned counsel for the appellant, let us accept for a moment that the prosecution ~as proved the factum of physical possession of said quantity of rice by the appellant at the relevant time. This now takes me to straight way go to the evidence let in by the defence to examine as to whether by preponderance of probability, it can be said the rice seized in entirety did not belong to the appellant. 13. D.W.1 is the person who claims to be the owner of 13 quintals out of the said seized rice. It is the evidence of D.W.1 that he has got his landed property about 10 acres at village Phampuni and he personally cultivates his lands. As per his evidence he had brought 25 bags of paddy to Jeypore for milling and intended to sell the rice and after getting the same milled he received 13 quintals of rice. The mill owner issued necessary receipt to him for the purpose. This has been proved by the witnesses as Ext. B. It is also his evidence that another receipt was issued by the mill owner showing delivery of 13 quintals of rice which he has proved as Ext. C. He has further stated that on 01.06.1988 he brought the rice to the market but could not succeed in selling. So he wanted to keep the rice in the shop of the appellant with whom he had earlier acquaintance and with much persuasion, ultimately the appellant agreed to keep the same in his shop on his behalf. He has further stated that when he came after a day, the appellant told him that the said rice had already been seized. So he wanted to keep the rice in the shop of the appellant with whom he had earlier acquaintance and with much persuasion, ultimately the appellant agreed to keep the same in his shop on his behalf. He has further stated that when he came after a day, the appellant told him that the said rice had already been seized. So he filed a petition before the authority for the release of the said rice, the copy of the said petition has been marked as Ext. D and the A.D. showing the factum of receipt of the same has been marked as Ext. D/1. The witness has been cross-examined at length from the side of the prosecution. He has stated that on that occasion, he had brought the paddy to sell it but the mill owner refused to purchase the paddy at the price with which he intended to sell and for that reason he had to go for milling to finally sell the end product and being not able to sell during then, he had to approach the appellant to keep the said rice in his custody. The prosecution has remained satisfied by simply suggesting to this witness that the documents such as Exts. A and B are all manufactured for the purpose of this case. No evidence to counter the same is forth coming. On going through the evidence of the D.W.1, I do not find any cogent reason to discard the same by entertaining any doubt in his version. The evidence-of is witness is further getting of corroboration from the documentary evidence that is Ext. A and B and also most importantly Ext. D & D/1 concerning his claim at an earlier point of time. The claim petition has been proved and marked Ext. D which shows that shortly after the seizure for the purpose of getting the rice seized in connection with the case released in his favour, he had moved the authority. Thus the defence case cannot as it is be said to be an after thought. This being the evidence let in by the defence, in my considered view, the presumption stands well rebutted that the said seized rice did not belong to the appellant in entirety. Thus the defence case cannot as it is be said to be an after thought. This being the evidence let in by the defence, in my considered view, the presumption stands well rebutted that the said seized rice did not belong to the appellant in entirety. So, the case of the defence is acceptable on the score that D.W.1 had kept his rice which he had obtained after the milling of paddy grown by him by cultivating his own land. The rest quantity of this seized rice falls below the quantity as prescribed in the Control Order for the purpose of attraction of contravention of Clause (3) of the Control Order. In that view of the matter, the finding of guilt of the appellant in respect of contravention of Clause-3 of the Control Order by the appellant is indefensible and consequently, the judgment of conviction and sentence passed by the learned Special Judge, Koraput is found unsustainable in the eye of law. 14. In the result the judgment of conviction and sentence impugned in this appeal is set aside and the criminal appeal stands allowed. Appeal allowed.