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2014 DIGILAW 844 (ORI)

State of Orissa v. Laxman Panigrahi

2014-12-05

D.DASH

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JUDGMENT The State in this appeal has called in question the order of acquittal passed by the learned Sessions Judge-cum-Special Judge, Ganjam-Gajapati, Berhampur acquitting the respondent for the offence under Section 7 of the Essential Commodities Act, 1955 for contravention of provision of Clause 3 of Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. 2.The case of the prosecution is that the respondent is the Proprietor of M/s. Lingaraj Gas, Berhampur, the authorized dealer of Indane Gas, supplied by Indian Oil Corporation Limited. The shop-cum-show room runs near the Engineering School Road, Berhampur, when the godown is at Jaleswarpur, by the side of the road running from Ankoli to Arunapali. The Inspector of Supplies, Berhampur, P.W.1 with the Additional Tahasildar, Berhampur, P.W.2 when made surprise visit to the shop on 29.07.1994 at 11.30 AM, they found the declaration board to have been exhibited in the shop premises of the respondent in accordance with ‘Order’ as referred to above. The opening stock had been noted therein to be 170 filled gas cylinders, 15 defective gas cylinders and 380 empty cylinders. In the stock register, the said quantities were shown as opening stock. By the time of verification, 102 gas cylinders were found to have been sold and as such 68 filled gas cylinders would have been there in the premises of the respondent. But instead 144 filled gas cylinders were found on physical verification showing excess stock than indicated. They noticed overwriting in some cash memos issued on 28.07.1994, and the gas cylinders found to have not been delivered to the consumers till 29.07.1994. So, P.W.1 reported the matter to the Sub-Collector, Berhampur and under his order, the gas cylinders were seized along with the registers and records. On completion of enquiry, prosecution report being submitted, the respondent faced the trial. 3.During trial, respondent denied the said allegations. The prosecution in order to establish the case has in total examined two witnesses, besides proving the stock registers, cash memo books and other documents. The respondent has examined himself as D.W.1 4.The trial Court mainly accepting the evidence tendered by the defence by way of examination of the respondent has gone to hold that the respondent has not contravened the provisions of Clause 3 of the Order, so as to attract the criminal liability under Section 7 of the Act. The respondent has examined himself as D.W.1 4.The trial Court mainly accepting the evidence tendered by the defence by way of examination of the respondent has gone to hold that the respondent has not contravened the provisions of Clause 3 of the Order, so as to attract the criminal liability under Section 7 of the Act. 5.Learned counsel for the State submits that the trial Court ought not to have accepted the defence version coming from the lips of the respondent in the absence of any other corroborative evidence. Therefore, when the prosecution evidence is enough to establish the discrepancy in the physical stock in hand and what was declared and noted in register, the solitary version of the respondent ought to have been discarded and that ought not to have been found sufficient to disprove the alleged contravention of the provision of the order. So, he contends that it is a fit case for interference with the order of acquittal. Learned counsel for the respondent on the other hand supports the findings of that trial Court. According to him, it is not the law that the evidence laid by the prosecution is to take precedence over the defence evidence and thus when the alleged contravention has been explained by defence by preponderance of probability, the trial Court did commit no mistake in finding the respondent to have not contravened the ‘Order’. According to him, the trial Court has rightly accepted the version of the respondent in the absence of any such glaring infirmity and thus the order of acquittal calls for no interference. 6.On the above rival submissions, let us have a glance over the defence evidence. It has been stated by D.W.1 that 76 gas cylinders could not be supplied to the consumers on 27.07.1994 and so also no gas cylinders were delivered on 28.07.1994 due to the fact that the delivery vehicle had gone out of order on 27.07.1994. His further evidence is that the auto driver retained 37 receipts with him and 39 receipts were in the book at office. So on 29.07.1994, 102 receipts were prepared and 102 cylinders with cash memos and 37 cylinders of the previous day were sent for delivery to the consumers. But as those could not be supplied to the consumers, on 28.07.1994, the clerk in charge changed the dates in cash memos and put as 29.07.1994. So on 29.07.1994, 102 receipts were prepared and 102 cylinders with cash memos and 37 cylinders of the previous day were sent for delivery to the consumers. But as those could not be supplied to the consumers, on 28.07.1994, the clerk in charge changed the dates in cash memos and put as 29.07.1994. The trial Court has believed the version of defence in explaining the discrepancy. It is the settled law that the defence is not required to establish its case beyond reasonable doubt and it can do so by preponderance of probability. So, here in the present case, when the prosecution evidence shows the discrepancy between the stock mentioned in the declaration board and the physical stock, the defence is seen to have come out with an explanation which has been found to be probable by the Court below. No such material is shown wherefrom the defence version can be said to be false. Thus the trial Court’s view is found to be in order. In that view of the matter, the order of acquittal is not liable to be interfered. 7.In the result, the appeal merits no acceptance and the same stands dismissed. Appeal dismissed.