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2016 DIGILAW 1064 (ORI)

Md. Sidique v. State of Odisha

2016-11-08

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellant has been convicted by the learned Special Judge-cum-Sessions Judge, Balangir in II(C) C.C. No.7 of 1987/T.R. No.8 of 1987 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as “the E.C. Act”) and has been sentenced to undergo R.I. for six months and to pay a fine of Rs.1000/-, in default, to suffer R.I. for a period of one month more. Aggrieved, this appeal has been filed. 2. Prosecution case is that on 29.07.1996 at 5.15 a.m., Narayan Prasad Panda, the then Marketing Intelligence Inspector of Patnagarh (P.W.2) when inspected the business premises of the appellant, found stock of Kerosene oil in contravention of Clause 7(1) of the Orissa Kerosene Control Order, 1962. P.W.2 also found no display board indicating the stock and price hanged in that shop which contravened Clause- 3 of the Orissa Declaration of Stock and Prices of Essential Commodities, 1973. That apart, P.W.2 also found the appellant was dealing with baby food without any licence violating Clause- 3 of the Orissa Baby Food Licensing Order, 1966. The appellant having failed to produce any licence or authority, P.W.2 seized the offending articles and subsequently prosecuted the appellant for the aforesaid contraventions of different Orders under the E.C. Act. The learned trial Court proceeded with the trial where prosecution examined only two witnesses. Placing absolute reliance on the testimony of such official witnesses, trial Court held the appellant guilty under Section 7(1)(a)(ii) of the E.C. Act. 3. Heard the learned counsel for the parties at length. 4. The learned counsel for the appellant submits that no statement of the appellant being recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), the appellant was highly prejudiced when such circumstances appearing to be incriminating in the prosecution evidence used against him without his knowledge. Alternatively, the learned counsel submits that there being nothing on record to show that either the appellant is the owner of that business premises or transacting business at the relevant time, his conviction is unsustainable. To buttress his stand, the learned counsel places reliance on a decision of this Court in the case of Golak Behari Sahu vrs. State of Orissa, 1985 CRI.L.J. 1846. 5. To buttress his stand, the learned counsel places reliance on a decision of this Court in the case of Golak Behari Sahu vrs. State of Orissa, 1985 CRI.L.J. 1846. 5. Per contra, the learned counsel for the State submits that since the Marketing Intelligence Inspector visited the shop of the appellant in his presence and found the aforesaid contraventions and particularly when the questioned case was tried summarily being summons case, no prejudice ever caused to the appellant for dispensing with the statement of the appellant under Section 313 of Cr.P.C. 6. On a careful scrutiny of the evidence placed on record, I find neither P.W.1 – Marketing Inspector nor P.W.2 the Supply Supervisor had seen the appellant transacting any business at the relevant time of inspection. Admittedly, no document whatsoever also seized to establish that appellant was the proprietor of the business premises. Their evidence also revealed that the appellant has 3 other brothers besides his father. Whether the appellant is the proprietor of the shop or at that point of time he was transacting business not being brought on record, and that being the maiden visit to the shop for the first time and P.Ws.1 and 2 had no personal knowledge as to who was the proprietor of the shop, no absolute reliance can be placed on the testimony of the P.Ws.1 and 2 to inculpate the appellant with the violation of different provisions of E.C. Act and Rules framed thereunder. Otherwise, as record reveals, no statement under Section 313 Cr.P.C. of the appellant has been recorded in this case. The case under consideration was summons in nature, but the Order No.37 dated 16.04.1992 does not reveal that on that date or prior to that, the personal appearance of the appellant was even dispensed with either under Section 205 or 317 Cr.P.C. On that date, as record reveals, the appellant remained absent and a petition under Section 317 Cr.P.C. was filed by the learned counsel for the appellant to represent the appellant he being absent on that date. The petition was merely allowed to allow the learned counsel to represent the absentee accused. The petition was merely allowed to allow the learned counsel to represent the absentee accused. The trial Court in a mechanical manner dispensed with the recording of the statement of the appellant under Section 313 Cr.P.C. solely on the ground that since the appellant was absent on that day which is in breach of the proviso to Section 313(1)(b) of Cr.P.C. It is fundamental that the attention of the appellant should be drawn to every inculpatory material in order to allow him to explain it. This is the basic fairness of a criminal trial and failure in this regard may gravely imperil the validity of the trial if there has been consequential miscarriage of justice which may be gathered and assumed from the facts and the circumstances of the case. Here, the appellant when charged with the offences for violation of several Control Orders under the E.C. Act and order framed thereunder and when no question put to him regarding such violation with regard to non-display in a special board the stock of kerosene and its prices, when kerosene and 2 Kgs. of baby food found in that shop without licence and when no opportunity extended to the appellant to explain his stand he having claimed to be a stranger to that shop, non-recording of the statement under Section 313 Cr.P.C. is fatal to the prosecution. It is well settled law that when there is failure to put incriminating circumstances to accused in his examination then said circumstances cannot be relied upon against him. A fact or circumstance appearing to be incriminating in the prosecution evidence cannot be used by Court for passing conviction without making any reference whatsoever to any statement made by a particular witness in examination of accused under Section 313 Cr.P.C. In the case of Golak Behari Sahu (supra), this Court in paragraph-8 has held as follows :- “8. A fact or circumstance appearing to be incriminating in the prosecution evidence cannot be used by Court for passing conviction without making any reference whatsoever to any statement made by a particular witness in examination of accused under Section 313 Cr.P.C. In the case of Golak Behari Sahu (supra), this Court in paragraph-8 has held as follows :- “8. In the circumstances of the case, the fact that the petitioner had not been given any opportunity to explain about the alleged contravention of Cl.4 of the Order of 1970 by not displaying the stock position of kerosene and the price thereof in a special board had caused serious prejudice to him and, therefore, the evidence in this regard could not be used against the petitioner.” When no question put to the appellant and when he remained absent but recording of the statement was dispensed with even without consent of the counsel for the appellant, there is miscarriage of justice affecting the very core of the prosecution. 7. Consequently, the impugned judgment of conviction recorded against the appellant by the trial Court must be held to be unfounded and unreasonable on the facts and illegal and unsustainable in law. The impugned judgment of conviction is, therefore, needs to be set-aside. 8. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the appellant. Consequently, the appellant is acquitted of the charge. The appellant being on bail, his bail bonds stand cancelled and surety discharged. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal allowed.