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2015 DIGILAW 654 (ORI)

PRAFULLA KUMAR PATEL v. STATE OF ORISSA

2015-11-23

SATRUGHANA PUJAHARI

body2015
JUDGMENT : S. Pujahari, J. - The appellant here in this appeal assails the judgment of conviction and order of sentence dated 04.07.1991 passed against him by the learned Sessions Judge-cum-Special Judge, Sundargarh in 2(c)CC No. 5 of 1990/T.R. No. 5 of 1990. The learned Sessions Judge-cum-Special Judge, Sundargarh vide the impugned judgment and order, held the appellant guilty of charge under Section 7 and 9 of the Essential Commodities Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- (rupees five thousand) in default to undergo a further period of imprisonment of three months on each of the count as he had violated the Clause 2 and 8 of Rice Retail Licence and Clause 6 and 8 of the Orissa Rice and Paddy Control Order, 1965 and Clauses 10 and 14 of the Orissa Wheat and Wheat Product Control Order, 1988. 2. Prosecution placed a case before the Trial Court that on 06.10.1989, the appellant who was appointed as Hat Sale Retailer for Girinkela Hat under Lephripara Block, Sundargarh had lifted 50 quintals of coarse boiled rice and 10 quintals of wheat from the Storage Agent i.e., R.C.M.S., Lephripada Depot on the strength of issue order No. 421076 dated 6.10.1989 and issue order No. 337859 dated 06.10.1989 respectively of the Supply Inspector, Lephripada Block (P.W.5). After lifting the aforesaid stock, he, instead of selling in the Girinkela Hat on 06.10.1989 and 13.10.1989, diverted the rice and wheat to black market. The matter had been reported to the BDO, Lephripada (P.W.6) by some of the villagers of Girinkela, who made enquiry and forwarded the report to the SDO, Sundargarh and in pursuance of the direction of the SDO, Sundargarh, the Marketing Inspector Shri S.K. Hati (P.W.7) also conducted an enquiry and reported that stock were not sold in the Hat, but diverted to the black market. On receipt of the said report, the Sub-Collector, Sundargarh entrusted the Marketing Inspector (P.W.7) to launch prosecution under the Essential Commodities Act. On receipt of the said report, the Sub-Collector, Sundargarh entrusted the Marketing Inspector (P.W.7) to launch prosecution under the Essential Commodities Act. Accordingly, the Marketing Inspector launched the prosecution alleging the offence under Section 7 of the Essential Commodities Act said to have been committed by the appellant violating of the Clause 2 and 8 of Rice Retail Licence Order and Clause 6 and 8 of the Orissa Rice and Paddy Control Order, 1965 and Clause 10 and 14 of the Orissa Wheat and Wheat Product Control Order, 1988. 3. Basing on such prosecution report which was accompanied with the evidence collected during enquiry disclosing the appellant to have violated the aforesaid control orders and commission of offence under Section 7 of the Essential Commodities Act, the learned Sessions Judge-cum-Special Judge, Sundargarh explained the accusation to the appellant to which he pleaded not guilty. The prosecution, as such, examined as many as nine witnesses and also exhibited certain documents in order to establish the charge. The accused-appellant to dislodge the prosecution evidence in support of the charge examined five witnesses and exhibited certain documents. But the Trial Judge in the conclusion of the trial recorded the judgment of conviction and order of sentence assailed herein this appeal. 4. Learned counsel appearing for the appellant has assailed the judgment of conviction and order of sentence to be unsustainable in the eye of law, with the submission that the appellant had adduced acceptable evidence that he had distributed the stock which was not given the required weightage by the Trial Court, oblivious to the law that the defence is not required to prove its case beyond reasonable doubt, but by a standard of preponderance of probabilities. It has also been submitted that since the appellant had proved its case that he distributed the rice and wheat in the Hat to the customers by the standard of preponderance of probabilities, the appellant was entitled to an order of acquittal, as such, the impugned judgment of conviction and order of sentence liable to be set aside. In alternative it was also submitted that the sentence imposed on the petitioner being harsh and disproportionate to the facts and circumstances, the same be modified. 5. In alternative it was also submitted that the sentence imposed on the petitioner being harsh and disproportionate to the facts and circumstances, the same be modified. 5. Per contra, it has been submitted by the learned counsel for the State that since in this case the prosecution proved the charge against the appellant by proving the fact that though he received the rice and wheat to distribute to the ration card holders in the Hat, but he did not distribute and misappropriated the same which the appellant had also confessed, even if at later stage he adduced some oral as well as documentary evidence which was not supported by the entries in the registers in the possession of the appellant, the same cannot repel the weighty evidence disclosing the fact that the appellant diverted and misappropriated the rice and wheat in question violating the different control orders. Hence, the learned counsel for the State submitted that since the appellant has not repelled the prosecution evidence adduced in this case to prove the accusation against him by any convincing evidence, the contention that the appellant has proved its case by the standard of preponderane of probabilities is devoid of merit and, as such, the impugned judgment and order being based on acceptable evidence on record, this Appellate Court should be loathed in interfering with the same. 6. It is not in dispute that the appellant had lifted the rice and wheat from the Storage Agent. The same is proved from the ample materials on record i.e. the version of P.W.1, Balaji Narayan Pattnaik, the them A.C.S.O., Sub-Collector's Officer, Sundargarh who stated that Ext. 1 and Ext. 2 are the issue order issued by P.W.5, Shankar Prasad Mishra, Supply Inspector, Lehphripara, allowing the appellant to lift the stock which is also corroborated and complemented by the version of P.W.5 and also the version of P.W.8, the then Secretary, R.C.M.S., Sundargarh who delivered the stock on such issue order. From the evidence of P.W.2, Pareswar Pradhan, it is emerged that the appellant had not sold the aforesaid stock in the Hat to the ration card holders on 6.10.1989. From the evidence of P.W.2, Pareswar Pradhan, it is emerged that the appellant had not sold the aforesaid stock in the Hat to the ration card holders on 6.10.1989. So also the evidence of P.W.7, Santosh Kumar Hati, the then Marketing Inspector, Sub-Collector's Office, Sadar, Sundargarh discloses that on 13.10.1986 on the direction of Sub-Collector, Sundargarh, he had proceeded to the Hat in question to inquire as the villagers complained that on 6.10.1989 the appellant had not sold the aforesaid rice and wheat lifted, to the ration card holder in the Hat and found that the appellant had not been to the Hat on that day. He also went to the house of the appellant, but he was not present in his house. So he arranged another dealer namely Santhosh Kumar Sahu and requested him to lift 40 quintals of rice for selling in Girinkela Hat. The evidence of P.W.5, Shankar Prasad Mishra, Supply Inspector, Lephripada also discloses that he returned on 13.10.1989 after the Puja Holidays to his duty and he came to know from the BDO that the appellant had not sold the aforesaid rice and wheat issued for Hat Sale to the ration card holders as such the retail Hat sale licence of the appellant for Girinkela Hat was suspended and it was issued in another person's name which he reported to the S.D.O., Sundargarh. Furthermore, it is also revealed from the evidence of P.W.1 and P.W. 5 that the appellant had gave the statement in his won hand writing in their presence vide Ext. 8 before P.W.1. Ext. 8 discloses that the appellant had not been to the Hat due to break down of his vehicle and he had kept the stock at Mahadebpada in the house of one Dharam Singh and in the evening when he reached the Hat, P.W.2, Pareswar Pradhan and P.W.3, Keshaba Chandra Pruseth demanded Rs. 2000/- from him and he gave them Rs.2,000/- and thereafter they took away the sale register, tally register and stock register for which he did not turn up to the Hat on 13.10.1989. This statement was given on 19.10.1989. 2000/- from him and he gave them Rs.2,000/- and thereafter they took away the sale register, tally register and stock register for which he did not turn up to the Hat on 13.10.1989. This statement was given on 19.10.1989. The evidence of PW 3, Keshaba Chandra Pruseth disclosed that he had not been to the Hat but he came to know that the appellant had not been to the Hat to sale the stock received and as such, a meeting was convened in the village and the matter was discussed and it was decided to bring the same to the notice of the authority P.W. 2 and P.W.3 have denied to snatch the registers from the appellant. The statement of P.W.2 and P.W.3 gets corroboration from their former statement corded by the ACSO, P.W.1, so also through P.W.4, Bibhuti Bhusan Purohit who as accompanying P.W.1 and recorded the statement on direction of P.W.1 per Ext. 3 and 7.P.W.6, Durga Charan Choudhury, the then B.D.O., In-Charge Lephripara also deposed that he received the complaint with regard to the appellant not selling the rice so also inquired the matter and prepared the inquiry report marked as Ext. 9. He also despatched such report to SDO. Vide letter marked as Ext. 11, he moved the Sub-Collector, Sundargarh for deputing a marketing Inspector for the next Hat sale at Girinkela and accordingly P.W.7., S.K. Hati was deputed. The report of S.K. Hati, Ext. 12 and evidence as stated earlier discloses he had been to Girinkela Hat and did not find the appellant to be present in the Hat The evidence of P.W 9, the then Tahasildar, Sadar, Sundargarh also discloses that as per direction of the SDO on 21st of October, 1989, he had proceeded to Girinkela along with ACSO and found the present appellant who could not show him the stock but gave the statement in his own handwriting, which is marked as Ext. 15. Ext. 15 discloses that the stock which he stated to have stacked in the house of one Dharam Singh of Mahadebpada due to break down of the vehicle could not be shown to the Tahasildar by him and he had sold the same to one Dillip Sharma. 7. 15. Ext. 15 discloses that the stock which he stated to have stacked in the house of one Dharam Singh of Mahadebpada due to break down of the vehicle could not be shown to the Tahasildar by him and he had sold the same to one Dillip Sharma. 7. The aforesaid evidence on record would go to show that the appellant had not been to the Hat on 6.10.1989 and next Hat on 13.10.1989 to sell the aforesaid stock of rice and wheat and his confession also discloses that he had misappropriated the stock contrary to the evidences as deposed by D.W.1, 2 and 5 D.W.4 stated that no report was received by him from VLW though he waste the Panchayat Samittee Chairman. No material is there that the aforesaid statements were forcibly taken from the appellant. The plea of the appellant as such that he sold the rice and wheat to ration card holders which deposed by the defence witnesses, as such, appears to this Court to be unworthy of credence having no foundation inasmuch as the appellant going to the Hat was unworthy of credence in view of the credible evidence adduced by the prosecution that he had not been to Hat to distribute the commodities under the Public Distribution System and his contemporaneous voluntary confession in this regard. The said defence evidence also unacceptable as the same is not supported by the entry in the relevant registers, in the possession of the appellant, i.e., stock registers, sale registers and account registers. The appellant's plea that the same were snatched away by P.W.2 and P.W.3, and as such was not in his possession appears to be unacceptable as the defence witnesses also said to have received the rice and wheat from him in the Hat made no whisper about any untoward incident occurring in this regard. Dharam Singh has also not been examined to prove that he had kept the stock in his house and had been to the Hat on 6.10.1989 evening. So also when the aforesaid registers were snatched away and money was exhorted from him by P.W.2 and P.W.3, the appellant is expected to lodge a report with the police as he could not have remained silent in such situation. But the appellant did not do the same. The official witnesses appear to have no animosity with him. So also when the aforesaid registers were snatched away and money was exhorted from him by P.W.2 and P.W.3, the appellant is expected to lodge a report with the police as he could not have remained silent in such situation. But the appellant did not do the same. The official witnesses appear to have no animosity with him. In such premises, there was no apparent reason on their part to falsely depose against the appellant. Therefore, there was no apparent reasons to discard the aforesaid evidence of the prosecution which proves the case against the appellant that he had received the stock, but did not sell the same in the Hat to the ration card holder and also could not account for the stock, especially when the defence evidence of the appellant was unworthy of creden. The aforesaid discloses that the appellant had violated the clauses of the License as mentions in the impugned judgment by the aforesaid act. 8. Since the aforesaid makes out a case against the appellant under Sections 7(1)(a)(ii) and 9 of the Essential Commodities Act, the Trial Court instead of sentencing the appellant under Sections 7 and 9 of the Essential Commodities Act ought to held him guilty of the charge under Sections 7(1)(a)(ii) and 9 of the Essential Commodities Act. Accordingly, the conviction of the appellant under Sections 7 and 9 of the Essential Commodities Act is modified to Sections 7(1)(a)(ii) and 9 of the Essential Commodities Act. So far as the sentence imposed is concerned, the same appears to be harsh, particularly the substantive sentence of imprisonment considering the offence committed and as such, the same is reduced to rigorous imprisonment of three months and fine of Rs. 5,000/- on each count, in default to undergo rigorous imprisonment of one month. 9. Resultantly, with the aforesaid modification in the conviction and sentence, this criminal appeal fails and, as such, stands dismissed. Final Result : Dismissed