Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1078 (ORI)

Rajendra Prasad Yadav v. State of Orissa

2016-11-09

SATRUGHANA PUJAHARI

body2016
JUDGMENT : S. PUJAHARI, J. This appeal is directed against the judgment of conviction and order of sentence dated 20.08.1992 passed by the learned Special Judge, Mayurbhanj, Baripada in Vig. G.R. Case No.25 of 1989. The learned Special Judge, Mayurbhanj, Baripada vide the impugned judgment and order, held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 7 of the Essential Commodities Act (hereinafter referred to as “the Act”) and sentenced him to undergo R.I. for a period of six months for violation of Clause-3 of the Orissa Rice and Paddy Control Order, 1965 (hereinafter referred to as “the Order”), an order promulgated under Section 3 of the Act, as allegedly he was found to be in possession of 126 quintals and 10kgs of rice without any license, as such, a dealer without license. 2. Prosecution placed a case before the trial court that on 10.05.1989, while the Vigilance Inspector, Rairangpur along with A.C.S.O., Rairangpur were performing patrolling duty in the border area to check illegal movement of essential commodities, at about 8 PM, found a Truck bearing no. ORM 6036 coming from Bahalda side towards Bihar and chased the said Truck which suddenly stopped as one of its tire was punctured. On verification, they found that the Truck was having 130 bags of rice, but the occupants of the said Truck including the driver except the helper fled away from spot. Subsequently, it was found that the said Truck was belonging to the accused and on being asked, the helper, who was there, disclosed that one Md. Kayum was driving the Truck, but could not produce any license or permit in support of transportation of the rice stock from Orissa to Bihar. As no license was there for transportation of the aforesaid articles, seizure of the aforesaid Truck and rice were made by the Vigilance Police, necessary investigation was taken up and on completion of investigation, charge sheet was filed against the accused and the driver of the truck. 3. The accused pleaded not guilty to the charge though admitted to be the owner of the truck. The prosecution, as such, examined as many as nine witnesses and also exhibited certain documents in order to establish the charge. But in his defence, the accused did not adduce any evidence. 3. The accused pleaded not guilty to the charge though admitted to be the owner of the truck. The prosecution, as such, examined as many as nine witnesses and also exhibited certain documents in order to establish the charge. But in his defence, the accused did not adduce any evidence. The trial court on conclusion of the trial, taking into consideration the evidence of the seizure of the Truck along with the rice, held that rice seized was found in the Truck of the accused and he was in possession of the same, as such, a dealer without license and violated Clause-3 of the Order punishable under Section 7 of the Act and returned the judgment of conviction and order of sentence assailed herein this appeal, but acquitted the co-accused driver. 4. Learned counsel appearing for the accused submits that the accused’s Truck might have been used in the alleged offence, but there being no convincing materials indicating the ownership of the accused over the rice and the possession thereof, as such, he could not have been said to be a dealer without license by the trial court. Hence, the conviction of the accused was without any substance. 5. Learned counsel for the State, on the other hand, submits that since from the Truck in question 130 bags of rice were found as evident from the evidence of the P.W.1, an independent witness; P.W.2 and accompanying official witness and the evidence of P.W. 7 i.e. A.C.S.O. that the helper of the Truck in question told that the seized Truck and rice belonging to the accused which is also corroborated and complemented by the testimony of the Investigating Officer P.W. 9, the contention advanced on behalf of the accused is devoid of merit. 6. The evidences of the P.Ws.1, 2, 7 & 9 would go to show that 130 bags of rice were seized from the truck in question. The truck belonging to the accused is not disputed. The evidence of P.Ws.7 & 9 disclose that P.W. 8 stated that the rice belongs to the accused. But the same has not been proved in this case inasmuch as P.W. 8 has not supported the case of the prosecution in this regard and P.Ws.7 & 9 have no direct knowledge about the accused to be the owner of the rice. But the same has not been proved in this case inasmuch as P.W. 8 has not supported the case of the prosecution in this regard and P.Ws.7 & 9 have no direct knowledge about the accused to be the owner of the rice. But, fact remains that the truck of the accused was carrying the rice has since been proved. Since the accused’s truck was found transporting with the rice, the accused cannot be attributed with the possession of rice and as such, a dealer. Therefore, there is no legally acceptable evidence indicating the fact that the accused was transporting the rice in question without any authority and as such a dealer without license. Even for the sake of argument, it is held that the possession of rice is attributable to the accused, but still the same is not sufficient enough to hold him to have violated the Clause-3 of the Order inasmuch as unless a person stored the paddy/rice, he cannot be said to be a dealer. The aforesaid is clear from the bare reading of Clause-2(b) and Clause-3 of the Order which reads as follows: “2(b). “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 time but does not include a cultivator or landlord in respect of rice or paddy, being the produce of the land cultivated or owned by him.” Clause-3 of the Order speaks as follows: “3. Licensing of persons (1) No person shall [act] as a dealer except under and in accordance with a license 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 [x x x] shall, unless the contrary is proved, be deemed to act as a dealer.] 7. [(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 [x x x] shall, unless the contrary is proved, be deemed to act as a dealer.] 7. The Apex Court in the case of Bijaya Kumar Agarwala vs. State of Orissa, reported in 1996 (5) SCC 1 , analyzing the two contrary decisions of this Court one is in the case of Balabhadra Raja Guru Mohapatra v. State, reported in AIR 1954 Orissa 95 wherein it has been held that goods in transit in a truck were held to be ‘storage’ within the meaning of the Orissa Food Grains Control Order, 1947 and other decision is in the case of Prem Bahadur v. The State of Orissa, reported in AIR 1978 Crl.L.J. 683 wherein it has been held that possession of stock of rice in a moving vehicle does not amount to ‘storage’ under the Orissa Rice & Paddy Control Order, 1965 and the definition of dealer as well as storage, held that merely as someone is found to have kept paddy in excess of the quantity permitted to be stored in a moving truck that itself cannot amount to storage of goods and as such does not contravene any of the provision of the Order. 8. Since no evidence is there indicating the fact the accused to be the owner of the rice seized in this case which was found in his moving truck, he could not have possessed the rice and as such a dealer of the aforesaid rice. Otherwise, in this case, the rice was found in a moving truck even if the same belonging to the accused, the accused cannot be attributed with the storage of the same and as such held to be a dealer without any license in view of the law laid down in the case of Bijaya Kumar Agarwala (supra). 9. In view of the aforesaid, this Court is of the view that the conviction of the accused holding him to be dealer of rice without license as such indefensible and accordingly, the same cannot be sustained. I would, therefore, allow this criminal appeal and set aside the impugned judgment of conviction and order of sentence. Accordingly, the accused is acquitted of the charge and consequently, his bail bonds stand discharged. I would, therefore, allow this criminal appeal and set aside the impugned judgment of conviction and order of sentence. Accordingly, the accused is acquitted of the charge and consequently, his bail bonds stand discharged. LCR received along with the copy of this judgment be returned forthwith.