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2014 DIGILAW 680 (ORI)

Chudamani Patel v. State of Orissa

2014-10-20

DEBABRATA DASH

body2014
JUDGMENT DEBABRATA DASH, J. 1. Both these appeals arise out of the judgment of conviction passed by the learned Special Judge, Sundargarh in 2(c) C.C. No. 08 of 1990 (T.R. No. 08 of 1990 convicting the appellants for commission of offence under section 7 of Essential Commodities Act, 1955 for contravention of Clause-3 of the Odisha Rice and Paddy Control Order, 1955 and sentence to undergo rigorous imprisonment for a period of 1 (one) year and to pay a fine of Rs. 5000/- in default to undergo rigorous imprisonment for 3 months. Therefore, both the appeals having been heard are being disposed of by the common judgment. 2. Prosecution case is that on 5-12-1988, information was received by the Marketing Inspector Civil Supplies (Sadar), Sundargarh that a mini truck bearing registration No. ORN-8251 was transporting rice unauth-orisedly. Therefore, he with the Executive Magistrate and Assistant Civil Supply Officer proceeded towards Balijor. At around 8.30 p.m. seeing the truck, they detained it, when appellant Chandiram, who was driver of the vehicle, fled away. It was then detected that the truck was carrying 43 bags of rice. The rice found to have been loaded in the truck with also the truck and other documents were seized. It being night, weighment was not possible and therefore on the next day the weighment of the contents of the bags was made followed by preparation of detail chart showing the quantity of seized rice as Q. 36.29 kgs. The prosecution report being submitted against the appellants who are the owner and driver of the said truck, they faced the trial. 3-4. It is seen that the appellant-owner of the truck has taken the plea to have no knowledge about the movement of the rice and the appellant who is the driver of the truck has named two other persons to be carrying the said rice in the truck. The trial Court on analysis of evidence have held both the appellants to have acted in contravention of Clause-3 of the said control order by carrying Q. 36.29 kgs. of rice in the truck and being as such in possession of the same and to have been stored it accordingly. Therefore, the appellants have been found guilty for commission of offence under section 7 of the Essential Commodities Act and accordingly they have been convicted and sentenced as stated above. 5. of rice in the truck and being as such in possession of the same and to have been stored it accordingly. Therefore, the appellants have been found guilty for commission of offence under section 7 of the Essential Commodities Act and accordingly they have been convicted and sentenced as stated above. 5. Learned counsel for the appellant at the outset submits that even accepting for a moment that there was seizure of Q. 36.29 kgs. of rice from the mini truck, no offence can be said to have been committed by the appellants. It is his submission that as provided in Clause-2(B) of the Control Order, it can be said according to the very case of the prosecution that the rice has not been seized from the appellants but seizure was when the rice was being carried in the mini truck and as per settled law, the commodities while on transit cannot amount to storage. Therefore, he urges that the prosecution is to be held to be misconceived. So, he contends that the appellants 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 has been ed that the appellant was doing business of purchase or sale of rice which also cannot be presumed from one instance in the absence of proof of regularity. Learned counsel for the State supports the finding rendered by this learned special Judge. It is his submission that the prosecution having established by leading clear, cogent and acceptable evidence that the rice was being carried in the truck of the appellant Chudamani when appellant-Chandiram was the driver, they cannot escape from the liability. He further submits that appellant-Chudamani the owner of the truck even in the absence of any evidence that he had direct knowledge about the said carriage of rice in his truck, is liable for the act of appellant-Chandiram who is his employee being the driver. Therefore, he contends that the order of conviction and sentence are not liable to be set at naught. 6. In the facts and circumstances of the case and in view of the rival submission, it is profitable to straightaway refer to the decision of the Hon'ble Apex Court in case of B.K. Agarwalla vs. State, 1989 (1) OLR 66. Therefore, he contends that the order of conviction and sentence are not liable to be set at naught. 6. In the facts and circumstances of the case and in view of the rival submission, it is profitable to straightaway refer to the decision of the Hon'ble Apex Court in case of B.K. Agarwalla vs. State, 1989 (1) OLR 66. The question that came up for consideration is whether paddy loaded in truck in excess of the permissible limit while in transit can be deemed to have been stored within the meaning of the word storage in the said Control Order. Their Lordships referring to the dictionary, meaning of the word store in Blacks Law Dictionary, Websters Comprehensive Dictionary, (International Edition) and Concise Oxford Dictionary have 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 was used as a store or whether a person had stored his merchandise in 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. Averting to the fact of the case as projected by the prosecution, the seizure of the rice bags took place when those were being carried in the mini truck, i.e. during transit while being transported from one place to another and that too on the way. The prosecution case is not that the truck being loaded with rice bags was used as storage for being sold at different points. Mere transportation does not amount to contravention of the said clause of the control order. Therefore, no offence under Section 7 of the Essential Commodities Act can be said to have been made out against the appellants even accepting the entire case of the prosecution as laid. The judgment of conviction and order of sentence thus are unsustainable. 8. In the wake of aforesaid, the judgment of conviction and order of sentence impugned in these appeals are set aside and accordingly the appeals stand allowed. The judgment of conviction and order of sentence thus are unsustainable. 8. In the wake of aforesaid, the judgment of conviction and order of sentence impugned in these appeals are set aside and accordingly the appeals stand allowed. Appeals allowed.