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2015 DIGILAW 365 (ORI)

Ashok Kumar Gupta v. State

2015-06-18

D.P.CHOUDHURY

body2015
JUDGMENT Dr. D.P. CHOUDHURY, J. - The captioned appeal assails the judgment of conviction and order of sentence dated 30.09.1992 passed by the learned Special Judge, Koraput-Jeypore in T.R. Case No.28 of 1991 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter called the “Act”). FACTS : 2. The factual matrix leading to the case of the prosecution is that on 28.10.1988, while the Inspector of Supplies Kotpad was patrolling on the border area, he found a truck bearing registration No.ORK-3999 standing with 100 bags of paddy at Dhanamahandi village. The Inspector of Supplies asked the driver of the truck about the stock of paddy to which the driver replied that the stock belongs to the appellant (hereinafter called the “accused”) and as per the instructions of the accused, the stock has been brought from Bansuli. The accused reached the spot and claimed the stock of paddy. Since the accused was in possession of more than 10 quintals of paddy, contravening the provisions of the Act, the Inspector of Supplies seized the said stock of paddy from the possession of the accused. During enquiry, it was further found that the accused had purchased the paddy from different persons at lesser price than fixed by the Government. After due enquiry, it is alleged by prosecution that the accused had contravened Cl.3(2) and Cl.11(aa) of the Orissa Rice and Paddy Control Order, 1965 (hereinafter called the “Order”), punishable under Section 7(1)(a)(ii) of the Act. Hence, P.R. was filed against the accused. 3. Plea of the accused, as revealed from his statement recorded under Section 313 of the Cr. P.C. and crossexamination made to P.Ws., is that the paddy in question belongs to him, which was harvested from his paddy land. He completely denied the charge levelled against him. 4. Learned Special Judge, after examining six witnesses from the side of prosecution and two witnesses from the side of defence and after going through some documents filed by prosecution held that prosecution has not been able to prove that the accused had purchased paddy at a lesser price than fixed by the Government, but the prosecution has well proved about illegal possession of the seized paddy by the accused, in contravention of Cl.3 of the Order. So, the learned Court below convicted the accused and sentenced him to undergo rigorous imprisonment for four months. SUBMISSIONS : 5. So, the learned Court below convicted the accused and sentenced him to undergo rigorous imprisonment for four months. SUBMISSIONS : 5. Learned counsel appearing for the appellant submitted that the order of conviction and sentence is absolutely against the law and the principles upon which the prosecution case stands. According to him, the learned Court below has not appreciated the evidence on its proper perspective inasmuch as P.Ws.3 and 4 categorically denied to have sold paddy to the accused. The learned Court below has also erred in law by not believing the defence story, which is proved by defence by adducing evidence and by not taking into consideration he sale deed filed by the accused and, as such, the impugned order is vulnerable. It was further argued by learned counsel for the appellant that the impugned order is bad, illegal and contrary to the evidence on record. Relying upon the decision of this Court in the case of Nilamani Pradhan Vs. State of Orissa reported in 2000 (II) OLR-708, he submitted that mere recovery from the transport carrier of the accused does not make out any offence. So, it is prayed by him to set aside the impugned judgment of conviction and order of sentence and allow the appeal. 6. On the other hand, learned Addl. Standing Counsel appearing for the State submitted that the judgment passed by the learned Court below is legally correct. According to him, the decision cited by learned counsel for the appellant is not applicable to this case. While supporting the judgment and order of the learned Court below, he prayed to confirm the same and dismiss the appeal. DISCUSSIONS : 7. The main point for consideration is whether the accused was selling the paddy in question, which was loaded in a truck after being collected from different persons ? The other point as to selling of paddy at a lesser price than the price fixed by the Government needs no elaboration, as the learned Court below has not believed the story of the prosecution in this context. 8. After going through the evidence of P.Ws., it appears that P.Ws.2, 3 & 4 have been cross-examined by prosecution, as they have not supported the prosecution. There is nothing found from the cross-examination made by the prosecution to P.Ws.2, 3 & 4 about the complicity of the accused with the alleged offence. 8. After going through the evidence of P.Ws., it appears that P.Ws.2, 3 & 4 have been cross-examined by prosecution, as they have not supported the prosecution. There is nothing found from the cross-examination made by the prosecution to P.Ws.2, 3 & 4 about the complicity of the accused with the alleged offence. So, at this juncture, it is submitted by the State that they can be arrayed as hostile witnesses. P.W.2 was allowed to be crossexamined by the prosecution as he has admitted the seizure of paddy vide Ext.1 as well as his signature therein; but, at the same time, he stated that the alleged paddy has been collected from the thrashing floor of the accused. He is none other than the driver of the truck. During cross-examination by prosecution, nothing is revealed to declare him hostile to the prosecution. Similarly, P.W.3, during cross-examination by prosecution, denied to have stated before the Investigating Officer (I.O.) that on 26.10.1988, he (P.W.3) sold three bags of new paddy to the accused @ Rs.105/- per bag and received Rs.315/- from him (accused). Such statement of P.W.3 elicited during cross-examination has not been confronted to the I.O. for which it cannot be said that he has contradicted his earlier statement inasmuch as before declaring the witness hostile, his statement made in the Court should be confronted to the I.O. to show that he has contradicted his earlier statement so that the credibility of the witness can be tested. Most of the times, duty of prosecution and defence is lost sight of because either prosecution witness or defence witness being cross-examined by prosecution or defence, as the case may be, by bringing to his notice about his earlier statement, forget about confronting the same to the Investigating Officer, who has to either confirm or decline, where one can find the prosecution witness either is hostile to the prosecution by suppressing material facts or the witness has omitted to state the material facts, as the case may be. Duty of the Court is equally to assess the credibility of such witness if aforesaid duty of prosecution or defence has been well discharged by them. 9. Similarly, P.W.4 has denied during cross-examination by prosecution to have stated before police about selling of paddy to the accused at a lesser price. Duty of the Court is equally to assess the credibility of such witness if aforesaid duty of prosecution or defence has been well discharged by them. 9. Similarly, P.W.4 has denied during cross-examination by prosecution to have stated before police about selling of paddy to the accused at a lesser price. But, such statement has not been confronted to the I.O. In the case of Anil Ray Vs. State of Bihar reported in AIR 2001 S.C. 3173 , Their Lordships have been pleased to observe as under : “It is for the Judge to consider in each case whether the witness stands thoroughly discredited and can still be believed in regard to part of his evidence. If the witness is not completely shaken, Court may, after considering his evidence as a whole with due care and caution, accept in the light of other evidence on the record, that part of evidence which is found creditworthy and act upon it. The testimony of such a witness may not be rejected outright”. With due respect to the said decision, it must be held that the evidence, which is not shaken in cross-examination and stands to test, cannot be brushed aside and the fact that the witness was declared hostile at the request of prosecuting counsel and allowed to be cross-examined, furnishes no justification for rejecting whole of the evidence of the witnesses. After considering the evidence of P.Ws.2, 3 & 4, it is found that the paddy being harvested from the land of the accused was being carried in the truck and P.W.1 seized the same vide Ext.1. Similarly, P.W.1 revealed that while the truck was carrying the paddy of the accused, he seized the same vide Ext.1. He ascertained from the Revenue Inspector that the accused has got five acres of land. On the other hand, the evidence of P.W.1 does not disclose that the seized paddy does not belong to the land of the accused. The evidence of P.W.5 does not reveal that the accused has no landed property. P.W.6 is a witness to the issue of receipt of Rs.120/- towards purchase tax in the name of the accused for carrying 100 bags of paddy in the truck in question. But, no receipt has been filed by him. So, the question of granting purchase tax receipt is not proved by P.W.6. 10. P.W.6 is a witness to the issue of receipt of Rs.120/- towards purchase tax in the name of the accused for carrying 100 bags of paddy in the truck in question. But, no receipt has been filed by him. So, the question of granting purchase tax receipt is not proved by P.W.6. 10. On analysis of the evidence of P.Ws., it only appears that paddy of the accused being transported in the truck was seized by P.W.1 vide Ext.1. Learned Special Judge did not appreciate rightly the evidence of the prosecution to the effect that the paddy in question was bought by the accused at a lesser price, which was being carried in the truck. The questions now arise whether the truck in question carrying the paddy bags of the accused can be said to have contravened the Order punishable under the Act, as on this count, the accused has been found guilty by the learned Court below; and whether the seizure of paddy from the transporter beyond the quantity of 10 quintals can be taken as storage of paddy ? In the case of Nilamani Pradhan Vs. State of Orissa (supra), His Lordship has observed as under : “This aspect was vividly dealt with by the apex Court in the case of Bijaya Kumar Agarwala v. State of Orissa and Jagdish Prasad Agarwal v. State of Orissa, reported in (1996) 11 OCR (SC) 573 wherein it was held that a truck moving with paddy without permit could not be termed as storing of goods and as such it would not attract violation of Clause 3 (ii)(b) of the Orissa Rice and Paddy Control Order, 1965 and thereby warranting conviction under Sec.7 of the E.C. Act. This case was relied upon by this Court in Pratap Rudra Mishra alias Pratap Chandra Mishra v. Susanta Kumar Hota, Inspector of Supplies, reported in (2000) 18 OCR 644 wherein it has been held that 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”. 11. With due respect to the above decision, it is found that in the aforesaid case, seizure of paddy from the truck being intercepted did not make out any offence under the Act for which this Court quashed the order of taking cognizance. Transporting is not storing”. 11. With due respect to the above decision, it is found that in the aforesaid case, seizure of paddy from the truck being intercepted did not make out any offence under the Act for which this Court quashed the order of taking cognizance. Now, adverting to the facts of the present case, it is found that there is seizure of 100 bags of paddy as per Ext.1 from the truck and there is nothing found from the evidence of P.Ws.1 and 2 that while the truck was standing, the paddy was seized; but while the paddy was being transported, P.W.1 stopped the truck at Dharamahandi and made seizure of 100 bags of paddy. So, the seizure of paddy from the truck in question cannot per say be made out any offence because the truck is not used as a store in this case in view of the above decision. Moreover, it has not been proved by prosecution that paddy has been collected from other persons and then carried in truck as per the discussions made above. Cl.3(2) of the order prescribes as under : “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”. Thus, the order penalises a person who has stored rice or paddy or rice and paddy taken together above ten quintals, as he becomes a dealer requiring licence as per Cl.3(1) of the Order to deal with such paddy and rice. The said ingredients must be proved by prosecution, after which onus will shift to the accused to rebut the same. It is well settled in law that where onus lies on the accused to discharge, either he would elicit defence plea from the cross-examination of prosecution witnesses or adduce evidence to discharge his plea or both. It is no more res integra that onus lies on the accused to prove his plea is not that heavy as prosecution is required to discharge. On the other hand, the plea of the accused can be discharged by principle of preponderance of probability. 12. It is no more res integra that onus lies on the accused to prove his plea is not that heavy as prosecution is required to discharge. On the other hand, the plea of the accused can be discharged by principle of preponderance of probability. 12. Now, adverting to the facts and circumstances of the present case, as has been discussed above, prosecution has not been able to prove that paddy in question has been collected or purchased by the accused from different persons and the same has been stored; but it is revealed from the cross-examination of P.Ws.2, 3 & 4 that paddy has been raised by the accused in his father’s land. When prosecution has failed to prove the storage of paddy, as understood under the law as per the above discussion, and seizure of the same from the running truck is not an offence under Cl.3 of the Order, it must be held that the ingredient of Cl.3(2) of the Order has not been established by the prosecution. When prosecution fails to discharge the onus, no onus is liable to be shifted to the accused to disprove the same for which the evidence of D.Ws.1 & 2 are not necessary to be dealt. 13. Cl.11(aa) of the Order states in the following manner : “purchase paddy at prices lower than those declared by the Government by a Notification in the Official Gazette to be the prices at which paddy may be bought; Provided that it shall be competent for the Government to fix different Kharif years, each beginning on 1st October”. The ingredient of this clause is that where there is purchase of paddy by the dealer at prices lower than those declared by the Government, he is found to have contravened the provision under Cl.11(aa) of the Order. In the instant case, it has already been discussed that prosecution has failed to prove that paddy was being collected from different persons for which ingredient of Cl.11(aa) of the Order remained far from proof. Now, it appears that prosecution has not been able to prove the violation of Cl.3 or Cl.11(aa) of the Order, for which Section 7 of the Act does not come to play. Now, it appears that prosecution has not been able to prove the violation of Cl.3 or Cl.11(aa) of the Order, for which Section 7 of the Act does not come to play. Learned Court below has committed error by not paying attention to all these provisions of law and wrongly based her finding to the effect that the seized truck was not having the produce of the land of the accused and he was in illegal possession of the seized paddy. But, at the same time, learned Court below has rightly observed that prosecution has not been able to prove that the accused purchased the paddy at a lesser price than fixed by the Government. Hence, I am in disagreement with the incorrect finding of the learned Court below. In that view of the matter, having regard to the facts and circumstances of the case and the evidence on record, as discussed above, it must be held that there is neither contravention of Cl.3 nor Cl.11(aa) of the Order, punishable under Section 7 of the Act. 14. In the result, the appeal is allowed, the impugned order of conviction and sentence passed by learned Court below is set aside and the accused is acquitted of the charge levelled against him. The bail-bonds furnished stand discharged. Appeal allowed.