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2014 DIGILAW 735 (ORI)

State of Orissa v. Narayan Sahu

2014-11-10

D.DASH

body2014
JUDGMENT : D. Dash, J. 1. The State has called in question the judgment of acquittal dated 16.05.1997 passed by the learned Special Judge, Ganjam-Gajapati in G.R. Case No. 48/96 acquitting the respondent of the offence under section 7 of the Essential Commodities Act, 1955 for violation of the provisions of sub-section 2 of section 3 of Orissa Pulses, Edible Oil Seeds and Edible Oils Dealers' (Licensing) Order, 1977 (in short hereinafter called as "the Control Order"). The short case of the prosecution is that on 27.12.1995 during noon hour, the Inspector of Vigilance, Berhampur (P.W.5) with other members forming a squad raided the shop of the respondent situated at Pandrigadia market in Berhampur town in presence of witnesses. P.W.5 then seized 9 tins of Mustard Oil, 32 tins of Rice Bran Refined. Oil, 3 tins of Barar Vanaspati, and 3 tins of Sun Flower Refined Oil from the shop of the respondent. He prepared necessary seizure list (Ext. 1) and left those seized items in zima of one Krushna Sahu under zimanaina (Ext. 2). The seizure was made as the respondent failed to produce the license as required under the Control Order. Finally P.W.5 having submitted the charge-sheet, on completion of investigation, the respondent faced the trial. 2. The case of the defence is that of complete denial. Prosecution in total has examined five witnesses. As already stated P.W.5 is the Inspector of Vigilance, Berhampur, P.Ws. 1 and 4 are the Inspector of Supplies and Inspector of Commercial Taxes respectively who had accompanied P.W.5 in raiding the shop of the respondent as members of the squad formed under the leadership of the P.W.5. The Sanitary Inspector of Legal Metrology, Berhampur who had issued a certificate (Ext. 5) after verification of weights and measures of M/s. Jagannath Store has been examined as a witness from the side of the prosecution and he is P.W.3. A Junior Clerk attached to the Civil Supplies Office has come to the dock as P.W.2. The defence has examined none. 3. 5) after verification of weights and measures of M/s. Jagannath Store has been examined as a witness from the side of the prosecution and he is P.W.3. A Junior Clerk attached to the Civil Supplies Office has come to the dock as P.W.2. The defence has examined none. 3. The trial court on evaluation of evidence on record and upon their critical examination has arrived at a conclusion that the prosecution has failed to establish the foundational fact that it is the respondent who was the owner of the shop in question, and for that the trial court has held that there has been failure on the part of the prosecution to establish that the respondent had committed offence under section 7 of the Act. 4. Learned counsel for the State submits that the trial court has not properly assessed the evidence of all these prosecution witnesses, mostly the official in proper prospective and, according to him, the evidence is overwhelming on the score that it is the respondent who was then in the shop at that time and was engaged in business activity. Therefore, he submits that the irresistible conclusion ought to have been drawn that it is the respondent who is the owner of the shop and as the respondent has failed to place the license as required under the Control Order, he ought not to have been acquitted in the case. In view of all these, he urges for interference with the order of acquittal in exercise of power of this Court in seisin of an appeal against the said order. 5. Learned counsel for the respondent, on the contrary, supports the finding of the trial court. He further submits that the trial court having made vivid analysis of the evidence on record has rightly held that the prosecution has failed to establish the nexus between the appellant and the seized essential commodities. Therefore, he submits that the appeal bears no merit. 6. On such rival submission the evidence of the prosecution witnesses' are first required to be examined in order to fudge the defensibility of the finding of the trial court. But before taking up that exercise, it is felt apposite to take note of the settled position of law as regards the scope of this appeal and also the power of interference with an order of acquittal in seisin of an appeal against that. But before taking up that exercise, it is felt apposite to take note of the settled position of law as regards the scope of this appeal and also the power of interference with an order of acquittal in seisin of an appeal against that. It has been held in case of Basappa v. State of Karnataka; (2014) 57 OCR 1044 that the High Court in an appeal under section 378 Cr.P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial court to test but the same is permissible only if the judgment of the trial court is perverse. Relying the case of Gamini Bala Koteswara Rao and others v. State of Andhra Pradesh; (2009) 10 SCC 639, it has been held that the word "perverse" in terms as understood in law has been defined to mean 'against weight of evidence'. In 'K. Prakashan v. P.K. Survenderan; (2008) 1 SCC 258 , it has also been held that the Appellate Court should not reverse the acquittal merely because another view is possible on evidence. It has been clarified that if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved the case beyond reasonable doubt (Ref.:--T. Subramaniam v. State of Tamil Nadu; (2006) 1 SCC 401 ). Further, the interference by appellate Court against an order of acquittal is held to be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take (Ref.:--Bhima Singh v. State of Haryana; (2002) 10 SCC 461). 7. At the outset of discussion, it is pertinent to state here that under the said Control Order the 'dealer' has been defined in Clause-2 (b) of the Control Order. It means a person engaged in the business of purchase, sale or storage for sale of any pulses, edible oilseeds or edible oils whether or not in conjunction with any other business and includes his representative or agent. This definition makes it clear that a person in order to be said to be a dealer of the essential commodities dealt under the said Control Order has to be found out to be engaged in the business or purchase, sale or storage for sale of said essential commodities either independently or along with any other business. This definition makes it clear that a person in order to be said to be a dealer of the essential commodities dealt under the said Control Order has to be found out to be engaged in the business or purchase, sale or storage for sale of said essential commodities either independently or along with any other business. The representatives or agents of that dealer are also the dealers within the meaning. Next as provided under sub Clause 1 of Clause-3 of the Control Order, a person is prohibited from carrying on business as a 'dealer' except under and in accordance with the terms and conditions of a license granted in his behalf by the Licensing Authority, i.e., the Collector of the District including the Additional District Magistrate in case of wholesalers and in case of retailers the authority remains with Sub Divisional Officer of the Sub-Division as provided in Clause 2(e) of the Control Order. However, as per sub clause (2) of the said clause a person who stores anyone or all of the pulses taken together in quantity exceeding ten quintals and/or anyone or all edible oil seeds taken together including ground nut in shell in quantity exceeding thirty quintals and/or anyone or all edible oils taken together exceeding five quintals at anyone time shall unless the contrary is proved, be deemed to be carrying on business as a 'dealer' except those cases falling under the proviso to the said sub clause. This sub clause comes into play when even the storage simpliciter of upward quantity of essential commodities is attributed to a person even without proof of any commercial activity as stated being attached to it, he is deemed to be a 'dealer'. But a person who for such simple storage stands as a dealer can rebut the same by proving to the contrary. For the purpose the prosecution is to establish beyond doubt that the said essential commodities have been stored by the accused. Thus all the attributes of storing being proved pointing at the accused, the presumption would arise when the onus will get placed upon the accused to rebut it. For the purpose the prosecution is to establish beyond doubt that the said essential commodities have been stored by the accused. Thus all the attributes of storing being proved pointing at the accused, the presumption would arise when the onus will get placed upon the accused to rebut it. On failure such storing by accused will be held to be for carrying on business and he would be coming within the net of the control order to do so with required license and in its absence, he will be held to have violated the provision of the control order so as to be liable to have committed the offence under Section 7 of the E.C. Act. 8. In the instant case, the prosecution has come up with the case that it is the respondent engaged in storage and sale of edible oil in his business premises. Therefore, for the storage and as such carriage of business as dealer for sale of those essential commodities he is sought to be implicated. In the present case no witnesses have stated about the direct dealing of the appellant with those essential commodities for being personally engaged in selling or storing for sale of those. P.W.1 has stated that they had gone to the shop of the respondent and that at the time of raid the respondent was present. However, during cross-examination he has said that simply because respondent was sitting in the shop, he has been arraigned in the case as the proprietor. P.W.3 has stated to have issued certificate in favour of M/s. Jagannath Store belonging to the respondent. For the first time P.W.4 has introduced a new story that it is the respondent who was selling the articles. But at the same time, P.W.5 is giving a different picture altogether that seizure of essential commodities was made from the godown of the respondent. His evidence on the score that on their arrival they found the respondent to be carrying on business of edible oil or selling those is not acceptable for a moment. The evidence of the prosecution witnesses are so shaky that neither it can be accepted that the respondent was the owner of the shop running at Pandrigadia so as to be attributed for the storage even nor the evidence is credit worthy to accept that the respondent was engaged in business of purchase, sale or storage for sale. The evidence of the prosecution witnesses are so shaky that neither it can be accepted that the respondent was the owner of the shop running at Pandrigadia so as to be attributed for the storage even nor the evidence is credit worthy to accept that the respondent was engaged in business of purchase, sale or storage for sale. Interestingly, the seizure list (Ext. I) reflects the ownership of the grocery shop to be resting with one Siba Sankar Sahu as the owner of the shop running the name and style of 'Jagannath Store' when P.W.1 has expressed his ignorance about the relationship between them when he is unable to say as to who is the proprietor of the shop. Taking an overall view of the evidence on record and on their re-appreciation, the conclusion arrived at by the trial court does not at all appear to be unreasonable. 9. For the aforesaid, reappreciation of evidence, the ultimate order of acquittal passed by the learned Special Judge, Ganjam-Gajapati is not found to be a flawed one. The appeal, thus, merits no acceptance and the same stands dismissed.