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2014 DIGILAW 80 (ORI)

State of Orissa v. Sheik Basha

2014-01-30

D.DASH

body2014
JUDGMENT The Respondents faced trial for contravention of Clause-3 of Odisha Rice an Paddy Control Order, 1965, punishable U/s.7 of the E.C. Act in G.R. Case No.14/90(V) i.e. T.R. No.7/90 in the Court of Special Judge, Ganjam-Gajapati, at Berhampur, and by judgment dated 15.03.1994 they have been acquitted. This appeal has been filed against said judgment of acquittal holding the respondents not guilty of the said offence. 2.Prosecution case runs as under :- On 03.08.1990, the Inspector Vigilance along with other officials of Department of Supplies, inspected a truck parked near the forest check gate at Chudialanji when it was found to be loaded with 135 bags of paddy. At the relevant point of time the driver and other person in the truck could not produce any satisfactory authority in support of such transportation of paddy bags in the truck. So those paddy bags were seized under seizure list Ext.1. Two purchase vouchers were seized from Respondent No.2 under seizure list Ext.2, which were in connection with transportation from village Arakapur to village Ramachandrapur in Andhra Pradesh. The truck used for transportation of paddy bags was also seized. This led the Inspector Vigilance (P.W.4) to lodge a written report before the Superintendent of Police, Bhubaneswar under Ext.5, upon which format F.I.R. Ext.5/1 was drawn. Finally the charge sheet having been submitted, the trial commenced. Defence case is one of denial with a specific plea that none of the Respondents had any connection with the seized paddy and they attributed the ownership of the said paddy to one Ananda Rao, not placed in the trial. 3.The prosecution during trial altogether examined four witnesses. Out of them P.Ws.1, 2 and 4 are official witnesses, whereas P.W.3 is the lone independent witness. On analysis of evidence and keeping in view the relevant provision of the control order i.e. Clause-2 which defines the ‘Dealer’, the learned Special Judge has found the prosecution to have not been able to establish by leading satisfactory evidence that Respondents were in possession of seized paddy bags. This has led to render a finding about failure of the prosecution and consequently the acquittal of the Respondents has been recorded. This has led to render a finding about failure of the prosecution and consequently the acquittal of the Respondents has been recorded. 4.Learned Additional Standing Counsel for the Vigilance submits that such finding that the possession of the seized paddy bags has not been proved in so far the Respondents are concerned is based on perverse appreciation of evidence without being alive to the settled position of law. According to him, when the seizure of paddy bags has been made from the truck and it falls under the prescribed quantity of paddy so as to be a dealer coming within the definition, the burden was on the Respondents to discharge either by leading evidence or otherwise that they were not in possession of those 135 bags of paddy and those belonged to some others. Therefore, he contends that the approach of the learned Special Judge, is by way of completely ignoring the deeming provision in Control Order as provided in Clause 3(2). Accordingly, he submits that the finding as well as the order of the acquittal are liable to be interfered with. Learned counsel appearing for the Respondents support the finding of the Court below while further submitting that in the present case, the prosecution having failed to establish the initial burden attributing the possession of the seized bags of paddy numbering 135 to the Respondents, through evidence beyond reasonable doubt, the learned Special Judge did commit no error in law by rendering the said finding against the prosecution followed by order of acquittal as the deeming provision of Clause 3(2) of the Control Order in that event does not come into play. 5.The settled position of law regarding the power to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full power to review the evidence upon which the order of acquittal is passed, it will not interfere with an order of acquittal because with the passing of an order of acquittal, the presumption of innocence in favour of accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. The High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted [Allarakha K. Mansuri-Versus-State of Gujarat, (2002) 3 Supreme Court Cases 57, at para-6]. It has been held in case of Shivaji Sahabrao Bobade v. State of Maharashtra, AIR 1973 SC 2622 that :- “This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The Privy Council in ‘Sheo Swarup V. King Emperor’ ( AIR 1934 PC 227 ), negatived the legal-basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was ‘no indication in the Code of any limitation or restriction on the High Court in the exercise of it’s powers as an Appellate Tribunal’ that no distinction was drawn ‘between an appeal from an order of acquittal and an appeal from a conviction’, and that ‘no limitation should be placed upon that power unless it be found expressly stated in the Code’. He further pointed at P. 404 that, ‘the High Court should and will always give proper weight and consideration to such matters as : (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses”. In “Sanwat Singh v. State of Rajasthan” ( AIR 1961 SC 715 ) after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup case and held that they afforded a correct guide for the appellate Court’s approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J. delivering the judgment of five judges in “Harbans Singh v. State of Punjab” ( AIR 1962 SC 439 ) :- “In many cases, especially the earlier ones the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on “compelling and substantial reason” and has expressed the view that unless such reasons are present an appeal Court should not interfere with an order of acquittal (vide Surajpal Singh v. State ( AIR 1952 SC 52 ); Ajmer Singh v. State of Punjab; Puuran v. State of Punjab, ( AIR 1953 SC 76 )). the use of the words “compelling reasons” embarrassed some of the High Courts in exercising their jurisdiction in appeal against acquittals and difficulties occasionally arose as to what this Court had meant by words “compelling reasons”. In later years, the Court has often avoided emphasis on “compelling reason” but nonetheless adheard to the view expressed earlier that before interfering in appeal with an order of acquittal, a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower Court that the guilt of the person has not been proved, is unreasonable.” The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is not less than from the conviction of an innocent. In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purpose of ascertaining as to whether the accused has committed any offence or not. In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purpose of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. 6.Keeping the settled position as above in mind, let me now approach the case in hand in finding out and in order to arrive at a conclusion as to whether the finding rendered by the Court below is liable to be interfered with in this appeal against the order of acquittal under Section 378 of the Code of Criminal Procedure. In exercise of power under Section 3, of the Essential Commodities Act, the State Government have brought into force Odisha Rice & Paddy Control Order, 1965 in order to control the business and storage of rice and paddy in the State. Clause (2) of the Control Order defines the ‘dealer’ which read as under :- “Dealer” means a person engaged in the business of purchase or sale of rice or paddy or rice and paddy taken together in quantities exceeding five quintals or of storage for sale of rice or paddy or rice and paddy taken together in quantities exceeding ten quintals at any or land lord in respect of rice or paddy, being the produce of the land cultivated or owned by him.” Next, now clause (3) of the Control Order runs as follows : “3. Licensing of persons-(1) No person shall act as a dealer except under and in accordance with a licence issued in that behalf by the licensing authority.” Provided that the Government may, by a special or general order, exempt, subject to such conditions as may be specified in the order, any class of persons from the operation of this Sub-clause. Licensing of persons-(1) No person shall act as a dealer except under and in accordance with a licence issued in that behalf by the licensing authority.” Provided that the Government may, by a special or general order, exempt, subject to such conditions as may be specified in the order, any class of persons from the operation of this Sub-clause. (2) For the purpose of this clause person who stores rice or paddy or rice and paddy taken together in quantity exceeding ten quintals inside the State of Orissa shall, unless the contrary is proved, be deemed to act as a dealer.” 7.A conjoint reading of above two clauses makes it clear that when a person falls within the ambit a ‘dealer’ and there remains no licence under the said order being granted by the competent authority for the purpose, there arises the contravention of the said clause (3) of the control order. Thus the initial burden in the case lies on the prosecution in proving the nexus between the Respondents and the seized paddy bags, so, as to establish that the Respondents were in possession of the same. The learned Special Judge referring to the evidence of P.W.1 the Inspector of Supplies has found that one Ananda Rao was present in the truck. So when he has not been arrayed as an accused in view of the position evidence of that P.W.1 that said Ananda Rao claimed to have purchased 135 bags of paddy from Patrapur area has gone to entertain serious doubt on the veracity of the prosecution case in attributing the possession of the seized 135 number of paddy bags to the Respondents. 8.Next coming to the evidence of P.W.2 it has been found that he has said nothing as regards the possession except simply proving the seizure. The evidence of P.W.4 has also been analysed that he has said respondent No.3 have claimed the ownership of the seized paddy bags. Therefore the oral evidence let in by the prosecution remain highly unsatisfactory in holding the possession of 135 bags of paddy bags as resting on the Respondents. Moreover, in this particular case the prosecution from their side have gone to prove certain documents Ext.7 to Ext.11 wherein five persons were found to have claimed the ownership of the specific number of paddy bags then being carried in the said truck. Moreover, in this particular case the prosecution from their side have gone to prove certain documents Ext.7 to Ext.11 wherein five persons were found to have claimed the ownership of the specific number of paddy bags then being carried in the said truck. When it is argued by the learned counsel for the Vigilance that burden was lying upon the Respondents to establish that the possession of those paddy bags was not with them but has to be attributed to others, it is seen that the prosecution has proved the above documents as regards the claim of different persons with regard to the specific quantities of paddy without further leading evidence on the score that such claims were false and fanciful in order to come to the aid of the present Respondents in getting rid of the criminal liability. In such State of affair in the evidence let in by the prosecution when the prosecution is found to have accepted the case of the defence on that score, the possession of the said 135 number of paddy bags has rightly been to have not been with these Respondents. So the substratum of the case of the prosecution i.e. possession of upward of prescribed quantity of paddy crumbles and in that event there can not be the application of the deeming provision as contained in Clause 3(2) of the order, so as to put the burden upon the respondents to discharge in showing otherwise and the prosecution cannot take advantage of it in fastening liability upon the Respondents. Therefore, no such infirmity or illegality is found in the said finding. The order of acquittal thus needs no interference. 9.Resultantly, the appeal stands dismissed. Appeal dismissed.