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2016 DIGILAW 635 (ORI)

Basanta Kumar Sahoo v. State of Orissa

2016-08-10

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. This is an application filed by the petitioner Basanta Kumar Sahoo under section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 09.03.2004 passed by the learned S.D.J.M., Jharsuguda in Criminal Trial No.2115 of 2004 in taking cognizance of the offence under section 7 of the Essential Commodities Act, 1955 and issuing process against the petitioner. 2. On 27.02.2004 Shri Rajendra Kumar Dehuri, Assistant Civil Supplies Officer and in charge Civil Supplies Officer, Jharsuguda submitted the prosecution report indicating therein that on 26.12.2003 at about 2.00 p.m., the Jharsuguda police officials detected and detained a truck bearing Registration No. OSS 7644 while unloading rice packets inside the rice mill premises of Jai Ambe Rice Industries, Sarbahal, Jharsuguda and on verification Shri R. L. Panda, Sub Inspector of Police, Jharsuguda Police Station found that 120 packets of 50 kgs. (approximately) of rice in each packet were found loaded in the truck and 80 packets were unloaded in the mill godown. The complainant being informed by the police proceeded to Jai Ambe Rice Industries along with his staff on 26.12.2003 evening and sealed the rice godown where the alleged 80 packets of rice were unloaded and it was found that there were 100 more packets of rice containing approximately 50 kgs. each in the godown. The detained truck as well as the sealed godown was kept under the custody of the police on 26.12.2003. The prosecution report further reveals that on 27.12.2003 at about 10 a.m., the complainant along with other staff proceeded again to Jai Ambe Rice Industries and there the complainant recorded the statement of the driver of the truck namely, Surjeet Singh who stated before the complainant that he loaded 200 packets of rice in his truck from the Food Corporation of India, Balijori Depot on the direction of one Pappu Lodha and as per his direction, he took the loaded truck to Jai Ambe Rice Industries at about 2.00 p.m. and as per the direction of another person in the rice mill, he parked the truck near the godown and as per the direction of that person, the labourers of the rice mill unloaded the rice packets from the truck into the mill godown. The driver produced the original gate pass of the F.C.I., Balijori Depot bearing Sl. The driver produced the original gate pass of the F.C.I., Balijori Depot bearing Sl. No. 8782 dated 26.12.2003 against R.O. No.399 dated 22.12.2003 which was issued by the Superintendent of Depot in favour of the D.M., OSCSC, Sundargarh. The complainant seized the truck bearing registration No. OSS 7644 loaded with 120 packets of rice in it along with other documents from the driver. He also seized the stock of 80 packets of rice which were unloaded from the truck. He also seized stock of 100 more packets of rice which were stored inside the mill godown. The seized stock of 300 packets of rice weighing Q.149.05 was kept under the custody of Sri Shyam Sundar Singhania, proprietor of Maa Kali Rice Mill, Jharsuguda. The prosecution report further indicates that the complainant interrogated the petitioner who was the storage agent of Balisankra block under OSCSC Ltd. in Sundargarh District. The petitioner gave in writing that on 26.12.2003 at about 12.30 p.m., he loaded three trucks of BPL rice in the truck bearing registration No. OR 15 C 4508, OAS 111 and OSS 7644 from FSD FCI, Balijori, Jharsuguda and he directed the drivers of all the three trucks to proceed to Balisankara block and out of the three trucks, two trucks reached his godown at Balisankara at about 2.30 p.m. but the truck bearing registration No.OSS-7644 did not reach the godown till 7.00 p.m. and even on the next day till 10 a.m., the said truck did not reach the godown for which the petitioner informed the matter to C.S.O., Sundargarh. It is further mentioned in the prosecution report that from the statement of one Balmukunda Majhi, ACSO, Sundargarh, it appears that he had delivered rick stock to the petitioner which was meant for BPL beneficiaries and transit pass was issued for the truck bearing no. OSS 7644 for movement of the rice stock from Jharsuguda to Balisankara block in Sundargarh district. It is indicated in the prosecution report that on 26.12.2003, 200 packets (Q.99.77 kg) of BPL rice were lifted by the petitioner from FSD FCI, Balijori in truck bearing registration No.OSS 7644 for distribution to the BPL beneficiaries but the petitioner illegally sold the said truck of BPL rice to the proprietor of Jai Ambe rice Industries, Sarbahal namely, Sri Dilip Kumar Agrawal in connivance with one Subash Kumar Lodha @ Pappu Lodha. It is further mentioned in the prosecution report that the petitioner was carrying on business as a dealer in PDS rice on the strength of licence No.100 of 2000-01 which was renewed up to 31.03.2004 issued under the provisions of Orissa Rice and Paddy Control Order, 1965 (hereafter “1965 order”) but the same has become infructuous since 15.02.2002 and therefore, the petitioner had contravened clause 3 of the Orissa PDS Control Order 2002 (hereafter “2002 order”). It is further indicated in the prosecution report that the petitioner has illegally sold the PDS rice stock of Sundargarh district (meant for BPL beneficiaries) to Jai Ambe Rice Industries, Sarbahal. Thus the prosecution report was filed on 27.02.2004 against the petitioner on the ground that the petitioner had contravened clause 3 of 2002 order as his licence as dealer in PDS rice has become infructuous since 15.02.2002 and that he sold the PDS rice stock illegally to Jai Ambe Rice Industries, Sarbahal. 3. Mr. Ramakant Mohanty, learned Senior Advocate contended that the impugned order of cognizance suffers from non-application of mind and submission of the prosecution report against the petitioner is also illegal and the relevant provisions under the 2002 order have not been duly taken note of and without any positive material on record that the petitioner had sold the PDS rice meant for BPL beneficiaries to Jai Ambe Rice Industries, Sarbahal, the prosecution report has been submitted. Learned counsel further contended that the co-accused Subash Kumar Lodha @ Pappu Lodha filed an application under section 482 Cr.P.C. in CRLMC No.2646 of 2004 challenging the very same order which is impugned in this case and this Court vide order dated 10.03.2005 has been pleased to allow the application and quashed the order of cognizance in respect of that co-accused Subash Kumar Lodha @ Pappu Lodha. Learned counsel for the petitioner further contended that in absence of any material to show that the petitioner had sold the rice to the owner of the mill from where it was seized and when the petitioner was having a valid licence as on the date of occurrence, it is a fit case where this Court should invoke its inherent power under section 482 Cr.P.C. and quash the order of cognizance as well as issuance of process against the petitioner. Learned counsel for the State Mr. Learned counsel for the State Mr. Deepak Kumar on the other hand placed the relevant provisions under the 2002 order as well as Essential Commodities Act, 1955 and placed statements of the witnesses and contended that there is no infirmity or illegality in the impugned order and therefore, it should not be interfered with. 4. Considering the submissions made by the respective parties, let us come to the prosecution report and see as to on what grounds it was submitted against the petitioner and whether those grounds are sustainable in the eye of law or not. The first ground taken in the prosecution report is that the licence No.100 of 2000-01 which was issued in favour of the petitioner as a dealer in PDS rice had become infructuous since 15.02.2002 and therefore, as on the date of occurrence i.e. on 26.12.2003 the petitioner was without any valid licence to deal with the PDS rice. It appears from the prosecution report submitted by the complainant that the petitioner had got the licence bearing No.100 of 2000-01 which was renewed up to 31.03.2004 under the provisions of the Orissa Rice and Paddy Control Order, 1965. The Orissa PDS Control Order, 2002 came into force on 12.04.2002. Clause 18 of the 2002 order reads as follows:- “18. Repeal and Savings-The Orissa Kerosene Control Order, 1962, the Orissa Pulses and Edible Oils Dealers (Licensing) Order, 1977, the Orissa Rice and Paddy Control Order, 1965, the Orissa Sugar Dealers’ Licensing Order, 1963 and the Orissa Wheat and Wheat Products Control Order, 1988 so far as they relate to licensing of dealers of essential commodities under Public Distribution System are hereby repealed. Provided that such repeal shall not affect (a) the previous operation of any order repealed under this clause (hereinafter referred to as the repealed Order) or anything duly done or suffered therein; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Order; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the repealed Order; or (d) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this order had not been issued.” Thus in view of clause 18 of 2002 order, licensing of dealers of essential commodities under Public Distribution System as mentioned in different orders including 1965 order were repealed. However, in the proviso part, it is mentioned that such repeal shall not affect the previous operation of any order repealed under clause 18 or anything duly done or suffered therein and the repeal shall also not affect any right, privilege, obligation or liability accrued or incurred under the repealed order. In clause-3 which deals with licensing of dealer, it is mentioned in the first proviso to sub-clause (2) to clause-3 of the 2002 order that a licence obtained under any of the relevant licensing order in force as on the date of coming into force of the 2002 order shall be valid till the date of its expiry and a fresh licence shall be obtained under the 2002 order before expiry of the date of such licence. The second proviso to sub-clause (2) to clause-3 indicates that the licence obtained under any of the relevant licensing order in force as on the date of coming into force of 2002 order shall be deemed to be a licensing order under 2002 order from the date of coming into force of 2002 order. Therefore, when the petitioner was carrying on business as a dealer in PDS rice by virtue of licence no. 100 of 2000-01 which was issued under the provisions of Orissa Rice and Paddy Control Order, 1965 and it was renewed up to 31.03.2004, it shall be deemed to be a valid licence under 2002 order from the date of coming into force of 2002 order i.e. 12.04.2002. 100 of 2000-01 which was issued under the provisions of Orissa Rice and Paddy Control Order, 1965 and it was renewed up to 31.03.2004, it shall be deemed to be a valid licence under 2002 order from the date of coming into force of 2002 order i.e. 12.04.2002. Learned counsel for the State fairly submits that there is absolutely no material available on record for making such an observation in the prosecution report by the complainant that the licence which was issued in favour of the petitioner has become infructuous since 15.02.2002. In that view of the matter, when the prosecution report has been submitted for contravention of clause-3 of 2002 order and it is found that the petitioner was having a valid licence order issued under the provisions of 1965 order which is also deemed to be a valid licence under 2002 order, therefore, it cannot be said that there is any violation of clause 3 of 2002 order and therefore, no fault can be found with the petitioner for carrying on business as a dealer in PDS rice and therefore, it cannot be said that the ingredients of the offence under section 7 of the Essential Commodities Act, 1955 are attracted against the petitioner. 5. So far as the allegation relating to selling of the P.D.S. rice stock which was meant for BPL beneficiaries to Jai Ambe Rice Industries, Sarbahal is concerned, the proprietor of the rice mill is one Dilip Kumar Agarwal who is not an accused in this case and he has stated that he has not received any rice from anybody. Similarly the statement of the driver namely, Surjeet Singh indicates that as per the direction of Pappu Lodha, he took the loaded truck of rice to Jai Ambe Rice Industries and as per the instruction of another person, he parked truck near the godown and that person directed the labourers in rice mill to unload the rice from the truck and accordingly, the same was done. In view of the statement of the driver Surjeet Singh, no liability can also be found against the petitioner. When the materials available on record indicates that the petitioner had instructed the three truck drivers who were carrying BPL rice to take it to Balisankra block under OSCSC Ltd. of Sundargarh District, out of which two trucks reached its destination but one truck bearing registration no. When the materials available on record indicates that the petitioner had instructed the three truck drivers who were carrying BPL rice to take it to Balisankra block under OSCSC Ltd. of Sundargarh District, out of which two trucks reached its destination but one truck bearing registration no. OSS 7644 did not reach its destination and as per the direction of co-accused Pappu Lodha, the truck was taken to Jai Ambe Rice Industries and the rice packets were unloaded there on the instruction of another person, no fault can be found with the petitioner. The petitioner immediately reported to the CSO, Sundargarh on 27.12.2003 regarding the non-reaching of the truck bearing registration no.OSS-7644 at the place of destination. This fact speaks of bona-fide conduct of the petitioner. Learned counsel for the State on verification of the case diary fairly submits that there is absolutely no documentary evidence or oral evidence to show that the petitioner sold the PDS rice stock of Sundargarh District meant for BPL beneficiaries to Jai Ambe Rice Industries, Sarbahal. When the proceeding in respect of co-accused Subash Kumar Lodha @ Pappu Lodha has been quashed by this Court in CRLMC No.2646 of 2004 vide order dated 10.03.2005 and there is absolutely no direct or circumstantial evidence available on record suggesting the role of the petitioner in the unloading of the PDS rice stock in the Jai Ambe Rice Industries, Sundargarh, I am of the view that the submission of the prosecution report by the complainant against the petitioner is totally misconceived and suffers from non-application of mind and the learned S.D.J.M., Jharsuguda has committed illegality in taking cognizance of offence under section 7 of the Essential Commodities Act and issuing process against the petitioner and therefore, when the ingredients of the offence are not made out, I am of the view that it is a fit case to quash the criminal proceeding against the petitioner and accordingly, the impugned order dated 09.03.2004 passed by learned S.D.J.M., Jharsuguda in Criminal Trial No. 2115 of 2004 in taking cognizance of offence under section 7 of the Essential Commodities Act and issuance of process so far as petitioner is concerned stands quashed. Accordingly, CRLMC is allowed.