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2019 DIGILAW 524 (ORI)

Bana Bihari Patra v. State of Orissa

2019-08-13

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The appellant by filing this appeal has questioned the judgement of conviction and order of sentence dated 30.04.1993 passed by the learned Special Judge, Balasore in Special Case No. 20 of 1991. By the impugned judgment and order, the petitioner has been convicted for committing offence under section 7(1)(a)(ii) of the Essential Commodities Act (for short, 'the Act') and sentenced to undergo rigorous imprisonment for a period of three months. 2. Prosecution case in short is that on 07.02.1991 around 8.15 AM morning, when the Marketing Inspector (P.W 5) was on patrol duty along with his staff, a truck bearing registration No. ORB-5415 near Haladipada was found to proceeding ahead. As the truck was loaded with paddy bags, they stopped it and asked the accused who was in the truck about the authority behind such carriage of said 157 paddy bags. As the accused could not produce any license/permit in that connection, the paddy bags were seized and on weighment, the bags were found to contain 113 quintals and 69 kgs of paddy. The statement of the accused was recorded by P.W. 5, the Marketing Inspector. In view of above, prosecution was launched against the accused for commission of offence under Section 7(1)(a)(ii) of the Act for violation of Clause-3 of the Orissa Rice and Paddy Control Order 1965 (for short, the Control Order'). The case of defence is that one Amulya Kumar Mohapatra, examined as D.W. 1 was the owner of the paddy bags and accused was his care 'taker. The accused has carrying paddy to Haladipada Rice Mill for milling under the direction of Shri Amulya Kumar Mohapatra (D.W. 1). 3. The prosecution in total examined five witnesses, when the defence has examined one i.e. Amulya Kumar Mohapatra as D.W. 1. Besides the oral evidence, the prosecution has proved the seizure list and statement of the accused marked as Exts. 1 & 2 respectively. From the side of the defence,- the partition deed along with the rent receipts have been proved as Ext. A & Ext. B series. Upon examination of the evidence on record, the trial court has found the accused to be in possession of 113 quintals and 69 kgs. of paddy kept in 157 bags without authority in violation of Clause-3 of the Control Order. A & Ext. B series. Upon examination of the evidence on record, the trial court has found the accused to be in possession of 113 quintals and 69 kgs. of paddy kept in 157 bags without authority in violation of Clause-3 of the Control Order. The trial court has held the case of defence that the paddy belongs to D.W. 1 to be an afterthought. Thus, finding the accused to be in possession of such quantity of paddy coming within the purview of the definition the 'dealer' without the license as required under the Control Order; he has been held guilty for commission of offence under section 7(1)(a)(ii) of the Act in violation of Clause-3 of the Control Order. Accordingly, he has been sentenced. 4. Learned counsel for the appellant (accused) submits that accepting the factum of seizure of 113 quintals and 69 kgs. of paddy kept in 157 bags from the truck on being detained en-route as to have been established, the finding that the accused has committed the offence under the Act for violation of Clause-3 of the Control Order is unsustainable. According to him, the paddy bags being under transportation based on the evidence on record, no offence can be said to have been committed by the accused. It is his submission that as provided in the Control Order, a 'dealer' can be said to a person engaged in business of purchase or sale of rice or paddy or rice and paddy taken together in quantity exceeding 5 quintals or of storage for sale of rice or paddy or rice and paddy taken together in quantities exceeding 10 quintals at any time and excluding a cultivator or landlord in respect of rice or paddy being the produce of land cultivated or owned by him. In the present case, according to him, the prosecution case being that paddy having been seized while on transit in the truck, the same cannot amount to storage and this petitioner cannot be attributed with the possession of the same and therefore the prosecution is to be held to be misconceived. In the present case, according to him, the prosecution case being that paddy having been seized while on transit in the truck, the same cannot amount to storage and this petitioner cannot be attributed with the possession of the same and therefore the prosecution is to be held to be misconceived. So, he contends that the accused cannot be held guilty of contravention of the provision of Clause-3 of the Control Order, when it is not the case of prosecution nor any such evidence is there on record to show that the accused was doing business of purchase or sale of paddy which also cannot be presumed from one instance in the absence of proof of regularity in that regard. 5. Learned counsel for the State supports the finding rendered by this learned Special Judge. It is his submission that in this case, the prosecution having established by leading clear, cogent and acceptable evidence through P.W. 1 to 5 that the paddy bags were in possession of the accused, even if those were on transit, the same can be said to have been stored by the accused. Therefore, he contends that the judgment of and order of sentence are not liable to be interfered with. 6. On such rival submission, first of all it requires consideration that accepting for a moment that there was seizure of the paddy weighing 113 quintals and 69 kgs. kept in 157 bags from the truck after its detention enroute whether there can be a finding of contravention of Clause (3) of the control Order. In order to answer the above, it is profitable to take note of the decision of the Apex Court in case of B.K. Agarwalla v. State 1996 (2) OCR (SC) 573. The aforesaid case had arisen from the decision of this Court reported in 1989(I) OCR 66. The question that came up for consideration is whether paddy loaded in truck in excess of the permissible limit while on transit can be deemed to have been 'stored' within the meaning of the word 'storage' in the said Control Order. The aforesaid case had arisen from the decision of this Court reported in 1989(I) OCR 66. The question that came up for consideration is whether paddy loaded in truck in excess of the permissible limit while on transit can be deemed to have been 'stored' within the meaning of the word 'storage' in the said Control Order. Referring to the meaning of the word 'store' in "Black's Law Dictionary and Webster's Comprehensive Dictionary, (International Edition) as well as Concise Oxford Dictionary, it has been held that 'storing' has an element of continuity as the purpose is to keep the commodity in store and retrieve it at some future date, even within a few days. If goods are kept or stocked in a warehouse, it can be immediately described as an act of 'storage'. A vehicle can also be used as a storehouse But, whether in a particular case, a vehicle was used as a 'store' or whether a person had stored his merchandise in a vehicle would be a matter of fact in each case. Carrying goods in a vehicle cannot per se amount to 'storing' although it may be quite possible that a vehicle is used as a store. Transporting is not storing." 7. Adverting to the fact of the case as projected by the prosecution, the seizure of paddy bags took place when those were being carried in the truck i.e. during transit and while under transportation, that too on the way being detained. The prosecution case is not that the truck being loaded with the paddy bags, those bags were stored as such for being delivered/unloaded at different points. It is not said that the accused after having loaded the paddy bags in the truck was carrying those to different places for selling so as to infer that the truck was thus being used as "store house". Applying the ratio of the decision in case of B.K. Agarwalla (supra); mere transportation as shown in this case does not amount to contravention of Clause-3 of the Control Order so as to hold that there has been commission of offence punishable under section 7(1)(a)(ii) of the Act. In that view of the matter, the judgment of conviction and order of sentence are liable to be set aside. 8. In the wake of aforesaid the judgment of conviction and order of sentence impugned in this appeal are set aside. In that view of the matter, the judgment of conviction and order of sentence are liable to be set aside. 8. In the wake of aforesaid the judgment of conviction and order of sentence impugned in this appeal are set aside. Accordingly, the appeal stands allowed. The bail bonds furnished by the appellant (accused) shall stand discharged.